Classification Of Cyber Crimes

It can be classified in to 4 major categories as

  1. Cyber crime against Individual
  2. Cyber crime Against Property
  3. Cyber crime Against Organization
  4. Cyber crime Against Society

  1. Against Individuals
    1. Email spoofing :
      A spoofed email is one in which e-mail header is forged so that mail appears to originate from one source but actually has been sent from another source
    2. Spamming :
      Spamming means sending multiple copies of unsolicited mails or mass e-mails such as chain letters.
    3. Cyber Defamation :
      This occurs when defamation takes place with the help of computers and / or the Internet. E.g. someone publishes defamatory matter about someone on a website or sends e-mails containing defamatory information.
    4. Harassment & Cyber stalking :
      Cyber Stalking Means following the moves of an individual’s activity over internet. It can be done with the help of many protocols available such at e- mail, chat rooms, user net groups.
  2. Against Property:
    1. Credit Card Fraud :
    2. Intellectual Property crimes : These include Software piracy: illegal copying of programs, distribution of copies of software.
      1. Copyright infringement:
      2. Trademarks violations:
        Theft of computer source code:
    3. Internet time theft :
      the usage of the Internet hours by an unauthorized person which is actually paid by another person.
  3. Against Organisation
    1. Unauthorized Accessing of Computer:
      Accessing the computer/network without permission from the owner.
      it can be of 2 forms:

      1. Changing/deleting data:
        Unauthorized changing of data.
      2. Computer voyeur:
        The criminal reads or copies confidential or proprietary information, but the data is neither deleted nor changed.
    2. Denial Of Service:
      When Internet server is flooded with continuous bogus requests so as to denying legitimate users to use the server or to crash the server.
    3. Computer contamination / Virus attack :
      A computer virus is a computer program that can infect other computer programs by modifying them in such a way as to include a (possibly evolved) copy of it.
      Viruses can be file infecting or affecting boot sector of the computer.
      Worms, unlike viruses do not need the host to attach themselves to.
    4. Email Bombing :
      Sending large numbers of mails to the individual or company or mail servers thereby ultimately resulting into crashing.
    5. Salami Attack :
      When negligible amounts are removed & accumulated in to something larger. These attacks are used for the commission of financial crimes.
    6. Logic Bomb :
      Its an event dependent programme , as soon as the designated event occurs, it crashes the computer, release a virus or any other harmful possibilities.
    7. Trojan Horse :
      an unauthorized program which functions from inside what seems to be an authorized program, thereby concealing what it is actually doing.
    8. Data diddling :
      This kind of an attack involves altering raw data just before it is processed by a computer and then changing it back after the processing is completed.
  4. Against Society
    1. Forgery: currency notes, revenue stamps, mark sheets etc can be forged using computers and high quality scanners and printers.
    2. Cyber Terrorism: Use of computer resources to intimidate or coerce others.
    3. Web Jacking: Hackers gain access and control over the website of another, even they change the content of website for fulfilling political objective or for money.

Career in Ethical Hacking

What is Ethical Hacking?

With the growth of the Internet, computer security has become a major concern for businesses and governments. They want to be able to take advantage of the Internet for electronic commerce, advertising, information distribution and access, and other pursuits, but they are worried about the possibility of being HACKED. At the same time, the potential customers of these services are worried about maintaining control of personal information that varies from credit card numbers to social security numbers and home addresses.

In their search for a way to approach the problem, organizations came to realize that one of the best ways to evaluate the intruder threat to their interests would be to have independent computer security professionals attempt to break into their computer systems. This scheme is similar to having independent auditors come into an organization to verify its bookkeeping records.

In the case of computer security, these TIGER TEAMS or ETHICAL HACKERS would employ the same tools and techniques as the intruders, but they would neither damage the target systems nor steal information. Instead, they would evaluate the target systems’ security and re-port back to the owners with the vulnerabilities they found and instructions for how to remedy them

History and Now….

Whilst in the 80’s hacking was common only amongst computer programmers with vast experience and knowledge of multiple technologies, now almost anyone can hack given the availability of the fiercest software’s available freely on the internet. “You no longer need to be a genius to hack. I say all you need is the Internet and the Desire.

After the events of 9/11 of WTC , we are no longer able to expect a common and traditional mode of attack. An attack can come in any mode and from any source. The best way to defend ourselves is to think like the enemy as this will allow us to predict their next move.

In November 2002, the International Council of E-Commerce Consultants (EC-Council), a leading provider of e-Business certification and Internet Security programs, announced a new certification program designed to provide security education and training services for penetration testing professionals.

The EC-Council developed a unique five day security training course called “Ethical Hacking & Countermeasures,” which prepares students for the CEH exam 310-50. As the only course of its kind in the world leading to an Ethical Hacker Certification, it teaches how hackers hack, the tools they use, how to hack via Linux and Windows 2000, how to hack firewalls and how to implement an effective security framework for both e-commerce and day to day operation and how to apply countermeasures to avoid those risks. The Certified Ethical Hacker certification has become the fastest growing certification in the security industry.
There are four basic kinds of hacks:

IP Hack: Someone can be hired to hack a specific IP address, giving them little or no information beforehand (You have to be careful if the IP address is an overseas server. You cant hack the wrong IP address, like a foreign government’s computers, causing an international incident.);

Application Hack: A much more sophisticated hack that you can is diving deep into databases and down production servers. Only experienced hackers, with strict guidelines governing their actions, will be allowed to perform such tests. Organisation will never hire a “reformed” black-hat hacker for this type of test;

Physical Infrastructure Hack: This is where you can try to get into your facilities to access your systems or go dumpster diving looking for confidential information such as passwords discarded on sticky notes; and

Wireless Hack: Here you can exploit wireless access points from the back of a van. and report the findings back to employers instead of stealing  passwords. You can check out employers tele workers as well to see if home offices are a source of entry to there organisations network.

 

For any of these tests, a reputable firm with clearly defined methodologies to hire you, and you could be part of it.

 

Scope

Career as a Ethical Hacker with/with out necessary Certification Opens a wide range of scope due to lot foray of international organisations in India, Indians are known to be good mathematicians this gives them edge over other countries employees. A Ethical Hacker can see growth path towards handling a complete Networking Department  as he knows the things at system level. Loyalty towards profession and employee pay key role

Salaries are no bar for such a profession.

 

Digital Signature Laws in India

Digital signatures are given legal recognition under the Information Technology (IT) Act, enabling them to be as valid as signatures on paper. By affixing a digital signature to an electronic document, the writer or owner of the document may establish his rights over its content, and file a lawsuit if the same is violated.

The clause for digital signatures has been defined under Section 4 of the IT Act to primarily facilitate e-governance and e-commerce. Remember, this section of the IT Act overrides other laws, such as the Consumer Protection Act, which tends to become general legislations to facilitate electronic transactions.

Legalities for Creating a Valid Digital Signature

Section 14 of the IT Act has established certain guidelines for creating a valid and secured digital signature.

The section states that at the time of fixing a digital signature:

  • It should be unique.
  • It’s security procedure must be agreed to by both parties.
  • It is capable of identifying all parties or subscribers of the electronic document.

 

Limits to Recognition of Digital Signature

Digital signatures on all electronic records and contracts are considered valid under section 4 of the IT Act, except in the case of:

  • A will.
  • A negotiable instrument.
  • A document of title.
  • A contract for disposition of an immovable property.
  • A trust or power of attorney.
  • A document notified by the Central Government.

Indian laws, including the Indian Contract Act, require these documents to be written and attested in writing. Further, in India, paper documents are perceived to be far more reliable and trustworthy than electronic documents.

Some may argue that having these limitations on legal recognition of digital signatures would bar the growth of electronic transactions. However, these laws are meant to safeguard the interest of the online visitors.

To obtain a legally valid digital certificate as per Indian IT Act from the licensed Certifying Authorities (CA) operating under the Root Certifying Authority of India (RCAI), Controller of Certifying Authorities (CCA) of India. (http://www.cca.gov.in/) >

Steps for obtaining Digital Certificate

  1. Visit the site of the licensed CA using internet browser.
  2. Apply for a digital certificates
  • Digital Signature,non-repudiation certificate(used for Signing) and
  • Key Encipherment Certificate (used for encrypting Bid Document) with Organization name for the designated individual with organization name.
  • Ensure the Digital Certificate is legally valid in India.
  1. For making payment for Digital Certificate and submission of documents required for issue of the Digital Certificate, follow the instructions on the CA’s website.

Links to some licensed CA’s are provided below:

http://www.tcs-ca.tcs.co.in
http://www.safescrypt.com
http://www.mtnltrustline.com
http://www.ncodesolutions.com

What is a USB Token?

  • It is secure Device, used specifically to carry Digital Certificates.
  • USB Tokens offer military grade security and the contents are also encrypted internally.
  • A virus cannot affect USB Token, and the digital Certificate stored would always be secure.
  • When you insert the Token, it automatically copies the certificate to the browser and when you remove the Token it automatically removes the certificate from the browser.
  • The Private key never leaves the Token and signing takes place within the Token itself. So, the security is guaranteed.

 

CYBER CRIMES AND THE LAW

In the era of cyber world as the usage of computers became more popular, there was expansion in the growth of technology as well, and the term ‘Cyber’ became more familiar to the people. The evolution of Information Technology (IT) gave birth to the cyber space wherein internet provides equal opportunities to all the people to access any information, data storage, analyse etc. with the use of high technology. Due to increase in the number of netizens, misuse of technology in the cyberspace was clutching up which gave birth to cyber crimes at the domestic and international level as well.

Though the word Crime carries its general meaning as “a legal wrong that can be followed by criminal proceedings which may result into punishment” whereas Cyber Crime may be “unlawful acts wherein the computer is either a tool or target or both”.

The world 1st computer specific law was enacted in the year 1970 by the German State of Hesse in the form of ‘Data Protection Act, 1970’ with the advancement of cyber technology. With the emergence of technology the misuse of technology has also expanded to its optimum level and then there arises a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect technological advancement system. It is under these circumstances Indian parliament passed its “INFORMATION TECHNOLOGY ACT, 2000” on 17th oct to have its exhaustive law to deal with the technology in the field of e-commerce, e-governance, e-banking as well as penalties and punishments in the field of cyber crimes.

  • Cyber Crimes Actually Means: It could be hackers vandalizing your site, viewing confidential information, stealing trade secrets or intellectual property with the use of internet. It can also include ‘denial of services’ and viruses attacks preventing regular traffic from reaching your site. Cyber crimes are not limited to outsiders except in case of viruses and with respect to security related cyber crimes that usually done by the employees of particular company who can easily access the password and data storage of the company for their benefits. Cyber crimes also includes criminal activities done with the use of computers which further perpetuates crimes i.e. financial crimes, sale of illegal articles, pornography, online gambling, intellectual property crime, e-mail, spoofing, forgery, cyber defamation, cyber stalking, unauthorized access to Computer system, theft of information contained in the electronic form, e-mail bombing, physically damaging the computer system etc.
  • Classifications Of Cyber Crimes: Cyber Crimes which are growing day by day, it is very difficult to find out what is actually a cyber crime and what is the conventional crime so to come out of this confusion, cyber crimes can be classified under different categories which are as follows:
  1. Cyber Crimes against Persons:

There are certain offences which affects the personality of individuals can be defined as:

  • Harassment via E-Mails: It is very common type of harassment through sending letters, attachments of files & folders i.e. via e-mails. At present harassment is common as usage of social sites i.e. Facebook, Twitter etc. increasing day by day.
  • Cyber-Stalking: It means expressed or implied a physical threat that creates fear through the use to computer technology such as internet, e-mail, phones, text messages, webcam, websites or videos.
  • Dissemination of Obscene Material: It includes Indecent exposure/ Pornography (basically child pornography), hosting of web site containing these prohibited materials. These obscene matters may cause harm to the mind of the adolescent and tend to deprave or corrupt their mind.
  • Defamation: It is an act of imputing any person with intent to lower down the dignity of the person by hacking his mail account and sending some mails with using vulgar language to unknown persons mail account.
  • Hacking: It means unauthorized control/access over computer system and act of hacking completely destroys the whole data as well as computer programmes. Hackers usually hacks telecommunication and mobile network.
  • Cracking: It is amongst the gravest cyber crimes known till date. It is a dreadful feeling to know that a stranger has broken into your computer systems without your knowledge and consent and has tampered with precious confidential data and information.
  • E-Mail Spoofing: A spoofed e-mail may be said to be one, which misrepresents its origin. It shows it’s origin to be different from which actually it originates.
  • SMS Spoofing: Spoofing is a blocking through spam which means the unwanted uninvited messages. Here a offender steals identity of another in the form of mobile phone number and sending SMS via internet and receiver gets the SMS from the mobile phone number of the victim. It is very serious cyber crime against any individual.
  • Carding: It means false ATM cards i.e. Debit and Credit cards used by criminals for their monetary benefits through withdrawing money from the victim’s bank account mala-fidely. There is always unauthorized use of ATM cards in this type of cyber crimes.
  • Cheating & Fraud: It means the person who is doing the act of cyber crime i.e. stealing password and data storage has done it with having guilty mind which leads to fraud and cheating.
  • Child Pornography: It involves the use of computer networks to create, distribute, or access materials that sexually exploit underage children.
  • Assault by Threat: refers to threatening a person with fear for their lives or lives of their families through the use of a computer network i.e. E-mail, videos or phones.
  1. Crimes Against Persons Property:

As there is rapid growth in the international trade where businesses and consumers are increasingly using computers to create, transmit and to store information in the electronic form instead of traditional paper documents. There are certain offences which affects persons property which are as follows:

  •  Intellectual Property Crimes: Intellectual property consists of a bundle of rights. Any unlawful act by which the owner is deprived completely or partially of his rights is an offence. The common form of IPR violation may be said to be software piracy, infringement of copyright, trademark, patents, designs and service mark violation, theft of computer source code, etc.
  • Cyber Squatting: It means where two persons claim for the same Domain Name either by claiming that they had registered the name first on by right of using it before the other or using something similar to that previously. For example two similar names i.e. www.yahoo.com and www.yaahoo.com.
  • Cyber Vandalism: Vandalism means deliberately destroying or damaging property of another. Thus cyber vandalism means destroying or damaging the data when a network service is stopped or disrupted. It may include within its purview any kind of physical harm done to the computer of any person. These acts may take the form of the theft of a computer, some part of a computer or a peripheral attached to the computer.
  • Hacking Computer System: Hacktivism attacks those included Famous Twitter, blogging platform by unauthorized access/control over the computer. Due to the hacking activity there will be loss of data as well as computer. Also research especially indicates that those attacks were not mainly intended for financial gain too and to diminish the reputation of particular person or company.
  • Transmitting Virus: Viruses are programs that attach themselves to a computer or a file and then circulate themselves to other files and to other computers on a network. They usually affect the data on a computer, either by altering or deleting it. Worm attacks plays major role in affecting the computerize system of the individuals.
  • Cyber Trespass: It means to access someone’s computer without the right authorization of the owner and does not disturb, alter, misuse, or damage data or system by using wireless internet connection.
  • Internet Time Thefts: Basically, Internet time theft comes under hacking. It is the use by an unauthorised person, of the Internet hours paid for by another person. The person who gets access to someone else’s ISP user ID and password, either by hacking or by gaining access to it by illegal means, uses it to access the Internet without the other person’s knowledge. You can identify time theft if your Internet time has to be recharged often, despite infrequent usage.
  1. Cybercrimes Against Government:

There are certain offences done by group of persons intending to threaten the international governments by using internet facilities. It includes:

  •  Cyber Terrorism: Cyber terrorism is a major burning issue in the domestic as well as global concern. The common form of these terrorist attacks on the Internet is by distributed denial of service attacks, hate websites and hate e-mails, attacks on sensitive computer networks etc. Cyber terrorism activities endanger the sovereignty and integrity of the nation.
  • Cyber Warfare: It refers to politically motivated hacking to conduct sabotage and espionage. It is a form of information warfare sometimes seen as analogous to conventional warfare although this analogy is controversial for both its accuracy and its political motivation.
  • Distribution of pirated software: It means distributing pirated software from one computer to another intending to destroy the data and official records of the government.
  • Possession of Unauthorized Information: It is very easy to access any information by the terrorists with the aid of internet and to possess that information for political, religious, social, ideological objectives.
  1. Cybercrimes Against Society at large:

An unlawful act done with the intention of causing harm to the cyberspace will affect large number of persons. These offences includes:

  •  Child Pornography: It involves the use of computer networks to create, distribute, or access materials that sexually exploit underage children. It also includes activities concerning indecent exposure and obscenity.
  • Cyber Trafficking: It may be trafficking in drugs, human beings, arms weapons etc. which affects large number of persons. Trafficking in the cyberspace is also a gravest crime.
  • Online Gambling: Online fraud and cheating is one of the most lucrative businesses that are growing today in the cyber space. There are many cases that have come to light are those pertaining to credit card crimes, contractual crimes, offering jobs, etc.
  • Financial Crimes: This type of offence is common as there is rapid growth in the users of networking sites and phone networking where culprit will try to attack by sending bogus mails or messages through internet. Ex: Using credit cards by obtaining password illegally.
  • Forgery: It means to deceive large number of persons by sending threatening mails as online business transactions are becoming the habitual need of today’s life style.

Affects To Whom: Cyber Crimes always affects the companies of any size because almost all the companies gain an online presence and take advantage of the rapid gains in the technology but greater attention to be given to its security risks. In the modern cyber world cyber crimes is the major issue which is affecting individual as well as society at large too.

Need of Cyber Law: information technology has spread throughout the world. The computer is used in each and every sector wherein cyberspace provides equal opportunities to all for economic growth and human development. As the user of cyberspace grows increasingly diverse and the range of online interaction expands, there is expansion in the cyber crimes i.e. breach of online contracts, perpetration of online torts and crimes etc. Due to these consequences there was need to adopt a strict law by the cyber space authority to regulate criminal activities relating to cyber and to provide better administration of justice to the victim of cyber crime. In the modern cyber technology world it is very much necessary to regulate cyber crimes and most importantly cyber law should be made stricter in the case of cyber terrorism and hackers.

Penalty For Damage To Computer System: According to the Section: 43 of ‘Information Technology Act, 2000’ whoever does any act of destroys, deletes, alters and disrupts or causes disruption of any computer with the intention of damaging of the whole data of the computer system without the permission of the owner of the computer, shall be liable to pay fine upto 1crore to the person so affected by way of remedy. According to the Section:43A which is inserted by ‘Information Technology(Amendment) Act, 2008’ where a body corporate is maintaining and protecting the data of the persons as provided by the central government, if there is any negligent act or failure in protecting the data/ information then a body corporate shall be liable to pay compensation to person so affected. And Section 66 deals with ‘hacking with computer system’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both.

 

Case Study-Attacks on Cyberspace: 

  • Worm Attack: The Robert Tappan Morris well Known as First Hacker, Son of former National Security Agency Scientist Robert Morris, was the first person to be prosecuted under the ‘Computer and Fraud Act, 1986’. He has created worm while at Cornell as student claiming that he intended to use the worm to check how large the internet was that time. The worm was uncontrollable due to which around 6000 computer machines were destroyed and many computers were shut down until they had completely malfunctioned. He was ultimately sentenced to three years probation, 400 hours of community service and assessed a fine of $10500. So there must be strict laws to punish the criminals who are involved in cyber crime activities.
  • Hacker Attack: Fred Cohen, a Ph.D. student at the University of Southern California wrote a short program in the year 1983, as an experiment, that could “infect” computers, make copies of itself, and spread from one machine to another. It was beginning & it was hidden inside a larger, legitimate program, which was loaded into a computer on a floppy disk and many computers were sold which can be accommodate at present too. Other computer scientists had warned that computer viruses were possible, but Cohen’s was the first to be documented. A professor of his suggested the name “virus”. Cohen now runs a computer security firm.
  • Internet Hacker: Wang Qun, who was known by the nickname of “playgirl”, was arrested by chinese police in the Hubei province first ever arrest of an internet hacker in China. He was a 19 year old computing student, arrested in connection with the alleged posting of pornographic material on the homepages of several government-run web sites. Wang had openly boasted in internet chat rooms that he had also hacked over 30 other web sites too.

 

Preventive Measures For Cyber Crimes:

Prevention is always better than cure. A netizen should take certain precautions while operating the internet and should follow certain preventive measures for cyber crimes which can be defined as:

  • Identification of exposures through education will assist responsible companies and firms to meet these challenges.
  • One should avoid disclosing any personal information to strangers via e-mail or while chatting.
  • One must avoid sending any photograph to strangers by online as misusing of photograph incidents increasing day by day.
  • An update Anti-virus software to guard against virus attacks should be used by all the netizens and should also keep back up volumes so that one may not suffer data loss in case of virus contamination.
  • A person should never send his credit card number to any site that is not secured, to guard against frauds.
  •  It is always the parents who have to keep a watch on the sites that your children are accessing, to prevent any kind of harassment or depravation in children.
  • Web site owners should watch traffic and check any irregularity on the site. It is the responsibility of the web site owners to adopt some policy for preventing cyber crimes as number of internet users are growing day by day.
  • Web servers running public sites must be physically separately protected from internal corporate network.
  •  It is better to use a security programmes by the body corporate to control information on sites.
  • Strict statutory laws need to be passed by the Legislatures keeping in mind the interest of netizens.
  • IT department should pass certain guidelines and notifications for the protection of computer system and should also bring out with some more strict laws to breakdown the criminal activities relating to cyberspace.
  • As Cyber Crime is the major threat to all the countries worldwide, certain steps should be taken at the international level for preventing the cybercrime.
  • A complete justice must be provided to the victims of cyber crimes by way of compensatory remedy and offenders to be punished with highest type of punishment so that it will anticipate the criminals of cyber crime.

Conclusion:

Since users of computer system and internet are increasing worldwide, where it is easy to access any information easily within a few seconds by using internet which is the medium for huge information and a large base of communications around the world. Certain precautionary measures should be taken by netizens while using the internet which will assist in challenging this major threat Cyber Crime.

PROCESS OF TRIAL OF CRIMINAL CASES IN INDIA

India has a well-established statutory, administrative and judicial framework for criminal trials. Indian Penal laws are primarily governed by 3 Acts:

  1. The Code of Criminal Procedure, 1973 (Cr.P.C.);
  2. The Indian Penal Code, 1960 (IPC);
  3. The Indian Evidence Act, 1872 (IEA).

Cr.P.C. is a comprehensive and exhaustive procedural law for conducting a criminal trial in India, incuding the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and the rights of the accused for a fair trial. The procedure for a criminal trial in India, is primarily, except as otherwise provided, governed by The Code of Criminal Procedure, 1973 (Cr.P.C.). IPC is the primary penal law of India, which is applicable to all offences, except as may be provided under any other law in India. IEA is a detailed treaty on the law of “evidence”, which can be tendered in trial, manner of production of the evidence in trial, and the evidentry value, which can be attached to such evidence. IEA also deals with the judicial presumptions, expert and scientific evidence. There are certain other laws, which have been enacted to deal with criminality in special circumstances.

It is also important to note that India follows the adversarial system, where generally the onus of proof is on the State (Prosecution) to prove the case against the accused, and until and unless the allegation against the accused are proved beyond reasonable doubt, the accused is presumed to be innocent. In certain exceptional cases, which may relate to terrorism, etc., the onus of proof has been put on the accused person, who claims to be not guilty.

India has a highly developed criminal jurisprudence and prosecution system, supported by judicial precedents, however, there may be certain issues or concerns relating to the execution of the same by Police and implementation by Judiciary. The courts in India, particularly High Courts and Supreme Court have been proactively guarding the rights of the accused. Even Article 21 of the Constituion of India has been interpreted in a highly dynamic manner to protect the rights, life and liberty of the citizens, by also incorporating the principles of natural justice.

By the flowchart herein-below, an attempt is being made to make the reader briefly understand the process of criminal investigation and trial in India, as a lot of foreign companies and Ex-pats are coming to India, and due to unfortunate circumstances, they may, at times find themselves embroiled in unnecessary criminal cases.

Process of Criminal Trial in India Flow Chart (2).jpg

To appreciate the process of Indian criminal law, it is necessary that to understand following important terminology:

  1. Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authoised to give bail to the accused at the time of arrest or detention.
  2. Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.
  3. Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and dependant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.
  4. Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.
  5. Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.
  6. Whether an offence/case is bailable or not bailable, and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC.
  7. F.I.R (first information report), is formal recordal of a complaint, by police in case of commission of a cognizable offence, and can be considered as a first step in the process of the investigation of a cognizable offence by Police.
  8. The Table II of the 1st Schedule of Cr.P.C., gives a general guideline to determine whether an offence is bailable, non- bailable, cognizable or non-cognizable. The criteria in the table below, is applicable in those cases which are silent on this aspect. For easy understanding, the following criteria may be understood:
OffenceCognizable or Non-CognizableBailable or Non-bailable
Punishable With Imprisonment ForNon-cognizableBailable
Punishable With Imprisonment ForCognizableNon-Bailable
  • Less Than 3 Years or with fine only
  • 3 Years or more

 

  1. The criminal investigation process and prosecution mechanism in India, can be started in any of the following manner:
    1. On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.]
    2. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence.
    3. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C.

 

India: Framing Of Charges: An Overview

One basic requirement of a fair trial in criminal jurisprudence is to give precise information to the accused as to the accusation against him. This is vitally important to the accused in the preparation of his defence. In all trials under the Criminal Procedure Code the accused is informed of the accusation in the beginning itself. In case of serious offences the Code requires that the accusations are to be formulated and reduced to writing with great precision & clarity. This “charge” is then to be read and explained to the accused person1.

Charge serves the purpose of notice or intimation to the accused, drawn up according to specific language of law, giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of trial2.

Relevant Legal Provisions of Criminal Procedure Code (CrPC)

  • Section 211 & Section 212 specifies about Contents of Charge and mentioning of particulars as to time and place of the alleged offence in the charge.

This rule is to an extent relaxed in a case of criminal breach of trust or of dishonest misappropriation. When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates. It is obvious that the relaxation given by the above rule is applicable only in case of criminal breach of trust or dishonest misappropriation and not in case of any other offence like theft, falsification of accounts under Section 477-A of the IPC, cheating etc.

This rule is intended to cover cases of persons who showed a deficiency in the accounts with which they were entrusted but who could not be shown to have misappropriated this or that specific sum3.

  • Section 213 talks about; when manner of committing offence must be stated:

When the nature of the case is such that the particulars mentioned in sections 211 and 212 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner is which the alleged offence was committed as will be sufficient for that purpose.

  • Section 214 gives a rule for interpreting the words used in the charge: It provides that in every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable.

Basic Procedure regarding charge & its trial

The initial requirement of a fair trial in criminal cases is a precise statement of the accusation. The code seeks to secure this requirement, first, by laying down in Sections 211 to 214 of CrPC as to what a charge should contain; next, stipulating in Section 218 of CrPC that for every distinct offence there should be a separate charge; and lastly, by laying down in the same section that each charge should be tried separately, so that what is sought to be achieved by the first two rules is not nullified by a joinder of numerous & unconnected charges4.

Section 218 reads as Separate charges for distinct offences

The object of section 218 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges & are tried together5. Another reason is that the mind of the court might be prejudiced against the prisoner if he were tried in one trial upon different charges resting on different evidence. It might be difficult for the court trying him on one of the charges not to be influenced by the evidence against him on the other charges. The strict observance of Section 218(1) may lead to multiplicity of trials, therefore exceptions, in suitable cases, have been provided by Section 218(2) in Sections 219,220,221 & 223. The effects of non-compliance with provisions regarding charge would be considered later. It would however be useful to allude to the decision of the Supreme Court in context of non-compliance with Section 218. In every case, in which a departure from the requirements of Section 218 has occurred, the question before the courts is, whether the omission to frame the required charge has or has not in fact occasioned a failure of justice by prejudicing the accused in his defence, & whether he has thus been deprived of a fair trial6.

Power of Court to order separate trial in cases where joinder of charges or of offenders is permissible

The basic rule regarding charge is that for every distinct offence there shall be a separate charge & for every such charge there shall be separate trial. The only exceptions recognized are contained in Sections 219,220,221 & 223 of CrPC. Therefore separate trial is the rule and the joint trial is an exception. The sections containing the exceptions are only enabling provisions. A court has got the discretion to order a separate trial even though the case is covered by one of the exceptions enabling a joint trial7. A joint trial of a very large number of charges is very much to be deprecated even though it is not prohibited by law. A separate trial is always desirable whenever there is risk of prejudice to the accused in a joint trial. The Supreme Court has taken the view that it is the option of the court whether to resort to Section 219,220 & 223 of the Code or whether to act as laid down in Section 218 and that the accused has no right to claim joinder of charges or of offenders8.

Applicability of provisions relating to joinder of charges to cases where no charge is framed

As will be seen later, in all summons cases though it is necessary to state to the accused the particulars of the offence of which he is charged, it is not necessary to frame a formal charge. In such cases a question may arise whether the provisions relating to joinder of charges & of offenders are applicable to such proceedings. The Code does not make any express provision in this regard. However the courts have taken the view that these provisions are equally applicable in summons cases also9.

Amendment/Alteration of charge

According to Section 216 (1) of CrPC, any court may alter or add to any charge at any time before judgment is pronounced. The section invests a comprehensive power to remedy the defects in the framing or non-framing of a charge, whether discovered at the initial stage of the trial or at any subsequent stage prior to the judgment.

The code gives ample power to the courts to alter or amend a charge whether by the trial court or by the Appellate Court provided that the accused has not to face a charge for a new offence or is not prejudiced either by keeping him in the dark about that charge or in not giving a full opportunity of meeting it & putting forward any defence open to him, on the charge finally preferred against him10. The court has a very wide power to alter the charge; however, the court is to act judiciously and to exercise the discretion wisely. It should not alter the charge to the prejudice of the accused person11.

Withdrawal of remaining charges on conviction on one of several charges

Section 224 of CrPC states that when a charge containing more heads than one is framed against the same person, and when a conviction has been had on one or more of them, the complainant, or the officer conducting the prosecution, may, with the consent, of the Court, withdraw the remaining charge or charges, or the Court of its own accord may stay the inquiry into, or trial of, such charge or charges and such withdrawal shall have the effect of an acquittal on such charge or charges, unless the conviction be set aside, in which case the said Court (subject to the order of the Court setting aside the conviction) may proceed with the inquiry into, or trial of, the charge or charges so withdrawn. The section is applicable where the accused in convicted of one of several distinct charges before the other charges are tried. It is necessary that the several charges made must be in respect of distinct offences and the section will not apply where the several charges are made under Sections 220(3), 220(4), or Section 221.

Effects of omission to frame, or absence of, or error in charge

Under Section 215 & 464 of CrPC object is to prevent failure of justice where there has been only technical breach of rules not going to the root of the case as such. The two sections read together lay down that whatever the irregularity in framing of a charge, it is not fatal unless there is prejudiced caused to the accused12. The object of the section is to prevent failure of justice where there is some breach of the rules in the formulation of the charge. However, the section also makes it clear that insignificant irregularities in stating the particulars of the offence will not affect the trial or its outcome. In order to decide whether the error or omission has resulted in a failure of justice the court should have the regards to the manner in which the accused conducted his defence & to the nature of the objection.

The object of the charge is to give an accused notice of the matter he is charged with. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Nor could a conviction recorded on charged under wrong provisions be reversed if the accused was informed of the details of the offences committed and thus no prejudice was caused to him13. The mere omission to frame a charge or a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice & not to frustrate them by mere technicalities.

Conclusion

In a criminal trial the charge is the foundation of the accusation & every care must be taken to see that it is not only properly framed but evidence is only tampered with respect to matters put in the charge & not the other matters14.

In framing a charge during a criminal trial, instituted upon a police report, the court is required to confine its attention to documents referred to under Section 17315.

The judge needs to be only convinced that there is a prime facie case, where there is no necessity to adduce reasons for framing charges. However, the magistrate is required to write an order showing reasons if he decides to discharge the accused16.

The sections dealing with charge do not mention who is to frame the charge. The provisions dealing with different types of trials however provide that it is always for the court to frame the charge. The court may alter/ add to any charge at any time before the judgment is pronounced.

But if a person has been charged, the court cannot drop it17. He has either to be convicted or acquitted18. All this has an important bearing on the administration of justice.

Consumer Complaint Lodging Important Documents

To provide simple, speedy and inexpensive redressal of consumer disputes, the CPA envisages a 3-tier quasi-judicial machinery at the National, State and District levels.

National Consumer Dispute Redressal Commission, known as National Commission, deals with complaints involving costs and compensation higher than Rs. One Crore.

State Consumer Dispute Redressal Commission, known as State Commission, deals with complaints involving costs and compensation higher than Rs. Twenty Lakh and less than Rs. One Crore.

District Consumer Dispute Redressal Forum, known as District Forum, deals with complaints involving costs and compensation less than Rs. Twenty Lakh.

Consumers can file different types of complaints depending on their specific grievance by visiting the Consumer Court at the district, state or national level along with the documents required for filing the complaint.

Following is a list of documents that the prospective complainants need to carry with them to the Consumer Court at the time of filing the complaint

Cases at District Forums

Consumer Case (Cc)
# Fee For Making Complainant,If Required(In The Name Of Registrar,Ncdrc,New Delhi)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any (2 Years From Cause Of Action)
# Index

Miscellaneous Application (Ma)
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Criminal Petition (Cp)
# Index

Interlocutory Application (Ia)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any(2 Years From Cause Of Action)
# Fee For Making Complaint
# Index

Execution Application (Ea)
# Execution Application With Affidavit
# Certified Copy Of Impugned Order(S)
# Limitations, If Any
# Index

Cases At State Disputes Redressal Commissions

Consumer Case (CC)
# Fee For Making Complainant,If Required(In The Name Of Registrar,Ncdrc,New Delhi)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any (2 Years From Cause Of Action)
# Index

Miscellaneous Application (Ma)
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Criminal Petition (Cp)
# Index

Interlocutory Application (Ia)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any(2 Years From Cause Of Action)
# Fee For Making Complaint
# Index

Revision Petition (Rp)
# Stay Application With Affidavit,If Required
# Certifeid Copy Of Order Of State Commission
# Revision Petition With Affidavit
# Copy Of Order Of District Forum
# Limitations, If Any(Within 90 Days Of The Receipt Of The Order )
# Supporting Documents In Favour Of Rp
# Index

Transfer Application (Ta)
# Transfer Application With Affidavit
# Index

Execution Application (Ea)
# Execution Application With Affidavit
# Certified Copy Of Impugned Order(S)
# Limitations, If Any
# Index

Review Application (Ra)
# Certified Copy Of Order Of National Commission
# Application For Review With Affidavit
# Supporting Documents In Favour Of Review Application
# Limitations, If Any(Within 30 Days Of The Receipt Of The Order )
# Index

First Appeal (Fa)
# Memo Of Appeal With Affidavit
# Stay Application With Affidavit, If Required
# Certified Copy Of Order Of State Commission
# Bank Drafts (In The Name Of Registrar, Ncdrc, New Delhi)
# Limitations, If Any (Within 30 Days Of The Receipt Of The Order )
# Any Other Documents Required
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Caveat Cases (Cv)
# Application
# Copy Of Order Of District Forum

Criminal Appeal (Ca)
# Memo Of Appeal With Affidavit
# Certified Copy Of Order Of District Forum
# Stay Application With Affidavit,If Required
# Any Other Documents Required
# Limitations, If Any
# Fdr, If Required
# Index

Cases At National Consumer Disputes Redressal Commission (NCDRC)

Consumer Case (CC)
# Fee For Making Complainant, f Required (In The Name Of Registrar, Ncdrc New Delhi)
# Index
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any (2 Years From Cause Of Action)

Miscellaneous Application (Ma)
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Revision Petition (Rp)
# Stay Application With Affidavit, If Required
# Certified Copy Of Order Of State Commission
# Revision Petition With Affidavit
# Copy Of Order Of District Forum
# Limitations, If Any (Within 90 Days Of The Receipt Of The Order )
# Supporting Documents In Favour Of Rp
# Index

Transfer Application (Ta)
# Transfer Application With Affidavit
# Index

Execution Application (Ea)
# Index
# Execution Application With Affidavit
# Certified Copy Of Impugned Order(S)
# Limitations, If Any

Review Application (Ra)
# Certified Copy Of Order Of National Commission
# Application For Review With Affidavit
# Supporting Documents In Favour Of Review Application
# Limitations, If Any(Within 30 Days Of The Receipt Of The Order )
# Index

First Appeal (Fa)
# Memo Of Appeal With Affidavit
# Stay Application With Affidavit,If Required
# Certified Copy Of Order Of State Commission
# Bank Drafts (In The Name Of Registrar,Ncdrc,New Delhi)
# Limitations, If Any (Within 30 Days Of The Receipt Of The Order )
# Index
# Any Other Documents Required
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma

Caveat Cases (Cv)
# Application
# Copy Of Order Of District Forum

 

STAGES OF CRIMINAL TRIAL

STAGES OF CRIMINAL TRIAL
stages of criminal trial.jpg

  1. Registration of FIR
  2. Commencement of investigation and collection of evidence by investigating
    During this time, at any stage decided by investigating agency, accused
    persons can be arrested
  3. Production of accused before Magistrate (within 24 hours) Remanded to police custody for further investigation; or Remanded to judicial custody.
    Note:- Remand does not mean that the police can misbehave or beat the
    Remand means interrogation by the police.
  4. Bail hearing before appropriate court – Arguments of the defence is denied by the
    public prosecutor.
  5. After investigation is completed: If investigating agency feels a prima facie case is made out, charge sheet is filed in Court through the public prosecutor. If police feels that no prima facie case is made out, a final report filed in Court.
  6. Decision is taken by the Court after hearing the public prosecutor and the counsel for defence:
    On question of Chargesheet:-

    • Court can reject chargesheet, in which case the accused is discharged.
    • Court can accept that a prima facie case is made out, frame the charges, and
      post the case for trial. Case goes to next stage
  7. On Final Report
    Court can accept the final report- case is closed and accused is discharged Court can reject the final report, and Direct the police to further investigate the case. Case goes back to Stage (2) Direct the case to be posted for trial. Case goes to next stage (7).
  8. Framing of Charge by Court
    Accused pleads guilty to the Charge. Depending on the seriousness of the crime,
    the Court may either convict on the basis of plea or post the case for trial.
    Accused pleads not guilty. Case is posted for trial.
  9. Trial commences – examination of witnesses and other evidence
    Examination of prosecution witnesses by public prosecutor, marking of exhibits,
    and cross-examination by defence counsel.
  10. Statement of Accused under section 313, CrPC.
  1. Defence Evidence: if defence wants to, it examines defence witnesses, who are
    cross examined by the public prosecutor, and exhibits defence evidence.
  2. Final Arguments – Public Prosecutor and the defence counsel present their
  3. Judgment and sentence by the Court: Acquittal of accused, or Conviction, in which case:
    • Arguments of public prosecutor and defence counsel on sentence.
    • Judgment of Court passing sentence.
  4. Appeal (within specified period of limitation) – Can be filed by party aggrieved by judgment on acquittal/ conviction/ reduction of sentence.
  5. On notice being issued to the opposite parties, arguments are placed before Appeal
    court of defence counsel and the public prosecutor.
  6. Judgment of Appeal Court.

What To Do When You Are Arrested

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something.

Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested.

What Rights Do I Have?

Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested.
Before the law enforcement officer questions you, he or she should tell you that:
# You have the right to remain silent.
# Anything you say may be used against you.
# You have a right to have a lawyer present while you are questioned.
# If you cannot afford a lawyer, one will be appointed for you.
These are your rights, guaranteed by the Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.

Once I Am Told My Rights, Can I Be Questioned?

You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different. You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver’s license will be suspended and the refusal will be used against you in court. Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have a right to make and complete three telephone calls that are free within the local dialing area.

When Should I See A Lawyer?

If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family or friends on the bail process.

Who Can Arrest Me?

All law enforcement officers – such as police officers, county sheriff officers, investigators in a district attorney’s or an attorney general’s offices and highway patrol officers – can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.

They can arrest you – even if they do not have an arrest warrant – if they have probable cause or good reason to believe you committed a felony, such as armed robbery. (A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.

If you commit an infraction, instead of taking you into custody, they may ask to sign a citation or notice. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.

Can Someone Other Than A Police Officer Arrest Me?

Any person, such as a private security guard, can make a citizen’s arrest if they see a misdemeanor being attempted or committed. (A misdemeanor is a criminal offense, usually punishable with a fine or short jail term.) They also can make a legal arrest for a felony as long as it actually was committed and they have good reason to believe you did it. They must take you to a police officer or judge who is required by law to take you into custody.

When Is An Arrest Warrant Used?

Usually a warrant is required before you can be taken into custody in your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone’s life or seriously damaging property.

The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed a crime. If your name is unknown, “John Doe” can be used on the warrant – along with your description.

Once an arrest warrant is issued, any law enforcement officer in the state can arrest you – even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.

Before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door – or if there is another good reason – the officer can break in through a door or window.

If the police have an arrest warrant, you should be allowed to see it. If they don’t have the warrant with them, you should be allowed to see it as soon as practical.

The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.

Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.

When Can I Be Released?

If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest.

What Is Bail And How Is It Set?

The amount of bail – money or other security deposited with the court to insure that you will appear – is set by a schedule in each state. You may be notified that you can forfeit or give up bail instead of appearing in court if you receive a traffic citation. However, if you have any doubt, go to court so a warrant is not issued for your arrest for failing to appear. Bail forfeiture does not apply to misdemeanors or felonies. Forfeiting bail does not mean that the charges are dropped and usually works as a conviction for a traffic offense.

Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody. Depending on where you are arrested, you may have the opportunity to request a bail reduction through a bail commissioner.

When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense you are charged with, any prior failures to appear (even for traffic tickets), any previous record, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. The law presumes you are guilty of the charges for purposes of setting bail or release.

Instead of paying bail, you might be released on your own recognizance or “O.R.” (or supervised O.R.). This means that you do not have to pay bail because the judge believes that you will show up for court appearances without bail.

Who Maintains Arrest Records And What Do They Include?

Local police departments and the State Department of Justice keep arrest records. According to law, they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies which have a right by state law to investigate your criminal background.

The arrest record includes when and why you were arrested, whether the charges against you were dropped or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial count as convictions.

If you are convicted of committing a misdemeanor, placed on probation and stay out of trouble, you are able to have the conviction removed from your record for such purposes as employment background checks after probation is over. If you are convicted of certain felonies and you successfully complete probation, you can have the felony reduced to a misdemeanor on your record. You must contact the probation officer in either instance to clear your record.

What Happens at an Arraignment?
You have a right to be arraigned without unnecessary delay – usually within two court days – after being arrested. You will appear before a municipal or a justice court judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on O.R., even if bail was previously set.

If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest to the charges. Legally this is the same as a guilty plea, but it cannot be used against you in a non-criminal case, unless the charge can be punished as a felony.

Before pleading guilty to some first-time offenses, such as drug use or possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.

If misdemeanor charges are not dropped, a trial will be held later in municipal court. If you are charged with a felony, however, and the charges are not dropped, the next step is a preliminary hearing.

What Happens At A Preliminary Hearing?
During the preliminary hearing, usually within 10 court days of the arraignment, the district attorney’s office must present evidence showing a reasonable suspicion that a felony was committed and that you did it to convince the judge that you should be brought to trial.

You may have a second arraignment. If the felony charges are not dropped at the preliminary hearing, you will be arraigned in superior court where your trial later will be held.

If you are charged with a crime and unable to understand English, you have a right to an interpreter throughout the proceedings.

When Can An Officer Conduct A Search?

An officer always may only make a search with either your consent or a search warrant. You have a right, however, to see the warrant before the search begins.

When Can An Officer Search You, Your Home Or Your Car Without A Warrant?
Body Searches. If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.

Home Searches. In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms – and even other parts of the same room – are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, that is in plain sight.

Car Searches. Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason – such as a broken tail light – they can take any illegal goods in plain sight.

If you, your home or your car are searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.