Criminal Law is the Law related to Crime. Hence, it is also called the Law of Crimes. Other terms related to Criminal Law are Criminology – the systematic study of criminals and Penology – the study of punishments in relation to the crime and the management of prisons. Criminal Law is concerned with wrongs committed against the public as a whole.

Criminal Law in India
The Criminal Law of India is divided into two categories.
– Substantive Law
– Procedural Law
Substantive Law provides for the definitions of various offences and prescribes punishments for the respective offences. The Indian Penal Code, 1860 (IPC) falls under the Substantive Law.

Procedural Law provides a mechanism for the enforcement of the Criminal Law. The Code of Criminal Procedure, 1973 comes under this category.

Right to Bail – How Is Bail Determined

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Right to Bail – How Is Bail Determined

Although there is a right to bail  to every accused, the term bail is not defined under CrPC. In this article I shall endeavor to analyze various provisions pertaining to Right to Bail and how is bail determined under the provisions of CrPC. To begin with, bail is a kind of security which is given by the accused to the court that he will attend the proceedings against the accusations made upon him and include personal bond and bail bond. Bail is a mechanism used to ensure that the accused is present before the court.

Right to Bail Laws - How Is Bail Determined

Right to Bail – How Is Bail Determined

The two authorities that can grant bail are police and courts.

The basic and fundamental object of bail is to ensure the attendance of accused at the trial before court. The sections from 436 to section 450 deal with the provisions of bail. The process of bail takes place while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself released from the police custody. The process of bail is a legitimate process.

Chapter 33 – Provisions As To Bail And Bonds

Section 436 – In what cases bail to be taken

Section 436A – Maximum period for which an under trial prisoner can be detained

Section 437 – When bail may be taken in case of non-bailable offence

Section 437A – Bail to require accused to appear before next appellate Court

Section 438 – Direction for grant of bail to person apprehending arrest

Section 439 – Special powers of High Court or Court of Session regarding bail

Section 440 – Amount of bond and reduction thereof

Section 441 – Bond of accused and sureties

Section 441A – Declaration by sureties

Section 442 – Discharge from custody

Section 443 – Power to order sufficient bail when that first taken is insufficient

Section 444 – Discharge of sureties

Section 445 – Deposit instead of recognizance

Section 446 – Procedure when bond has been forfeited

Section 446A – Cancellation of bond and bail bond

Section 447 – Procedure in case of insolvency or death of surety or when a bond is forfeited

Section 448 – Bond required from minor

Section 449 – Appeal from orders under section 446

Section 450 – Power to direct levy of amount due on certain recognizances

Bail when and when not to be granted:

The code of criminal procedure, 1973 has defined the term bailable offence by stating that an offence which is shown as bailable in the first schedule, or which is made bailable by any other law for the time being in force; and the term non-bailable offence states the meaning that any other offence other than bailable offence. The distinction between bailable and non-bailable offences is based on the gravity of the offence, danger of accused absconding, tampering of evidence, previous conduct, health, age and sex of the accused person. Though the schedule for classification of offences as bailable or non bailable is provided in Crpc; however, it is mostly the offences which are punishable with imprisonment for not less than three years that are classified as non-bailable.

The purpose of bail is to ensure the appearance of the accused before the court whenever required but in certain cases, granting bail is not required. The basic rules of grant or denial of bail may simply be summarized as:

  1. There are only two kinds of offences bailable and non bailable offences
  2. In case of bailable offences section 436 CRPC it is the right of the accused to demand and be granted bail.
  3. The certain basic criteria while exercising his judicial discretion for grant or denial of bail in case of non bailable offences has been laid down in section 437 CrPc in the cases related to non-bailable offences. Some of these criteria include the nature of offence, past criminal records and probability of guilt.
  4. Section 438 CRPC deals with anticipatory bail in cases where there is an apprehension to arrest.
  5. There are other factors also which are to be kept in mind by the hon’ble court before granting of bail like the possibility of threatening a witness, possibility of evidence being tampered etc.

Bail by Police

The Police Officer power, to release a person on bail who has been accused of an offence and is in his custody, is categorized under the two heads:

  1. When without any warrant the arrest is made and;
  2. When with the issuance of warrant the arrest is made .

The Power to grant bail by police has been conferred upon them by the virtue of the following sections:

  1. Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of the Code.
  2. The powers of police to grant bail under head are controlled by directions endorsed under Section 71 of the Code. It is under Section 81 of the Code however, which empowers the police officer to grant bail when the person arrested or produced before him has been accused of the commission of a bailable offence even when no direction to such effect has been given in the warrant. In case of non- bailable offence the endorsement on the warrant has to be strictly followed. Endorsement on warrant however should be by name.

Bail when arrest made without warrant

  1. Bail under section 42 Cr. P.C.: Section 42 Cr. P.C. 1973 can be invoked when the offender refuses to give name and address or gives a name and address which the police officer considers to be false. If those particulars are within the knowledge of the police officer, neither the question of arrest nor the question of bail will arise. As soon as name and address has been ascertained the police officer cannot detain him, if he is willing to execute the necessary bonds. The power to arrest and to release on bail can be exercised by any Police Officer not necessarily by an officer-in-charge of the Police station because this section has been enacted to provide for a particular non cognizable offence does not put any restrictions on the power of a Police Officer to enlarge a person on bail after the correct name and residence have been ascertained.
  2. Bail under section 43 Cr. P.C.: The Code of Criminal Procedure provides for the arrest of a private person also though his powers of arrest are very limited. After the arrest has been made the arrested person should be, without unnecessary delay handed over to a police officer, or in his absence, be brought to the nearest police station. The question of bail will depend upon what opinion the police officer forms about the person brought before him. If there is no sufficient ground to believe that the arrested person has committed any offence, he shall at once be released. If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him and then the normal procedure of investigation, determination of the question whether a non-bailable case is made out or not and the desirability of release on bail etc. will arise. If there is reason to believe that he has committed a non-cognizable offence he shall be released as soon as his name and residence have been ascertained as provided under section 42 Criminal Procedure Code. A chowkidar, not being a police officer is not entitled to receive a person arrested under this section. But where a chowkidar is a police officer as under the Chota Nagpur Rural Police Act, (Act I of 1914) he can received a person arrested under section 59, Criminal Procedure Code (old) and detain him in custody.
  3. Bail under sections 56, 57 and 59 Cr. P.C.: Section 56 mandates that a police officer affecting an arrest without warrant must take or send the offender arrested, before a magistrate having jurisdiction in the case of before the officer in charge of a police station. But in section 56, there is an inbuilt provision authorizing police officer to admit the arrested offender to bail, but power of the police officer is subject to the provisions herein contained as to bail. Section 56 of the new Code corresponds to section 60 of the old Code. Section 57 provides that person arrested not to be detained more than twenty four hours. The intention of the legislature is that an accused person should be brought before a Magistrate competent to try or commit with as little delay as possible. Section 57 is pointer to the intendment to uphold liberty and to restrict to the minimum curtailment of liberty. It has been stated in Section 59 of the Code that any person who has been arrested by a police officer shall be discharged only by his own bond, or on bail, or under special order of a magistrate.
  4. Bail under section 169 Cr. P.C.: The section refers to the grant of bail not at the start but only on the making of an investigation under Chapter XII of the Code. Till then bail is not authorized under the provisions of this section. The power to release on bail a person in custody vests in the officer in charge of the police station or the police officer making the investigation. An officer-in-charge of the Police Station or an investigating officer cannot release a person on bail if he has appeared as an accused before the magistrate on the basis of a complaint in respect of the incident which the police is also investigating. If the officer in charge of the police station on the investigating officer takes a bond from the accused for his appearance before the police it is void ab initio. The admission to bail, therefore, is only a provisional arrangement and the magistrate may either discharge the bond in order the re-arrest of the accused. The powers of an officer in charge of the police station on the investigating officer to admit a person to bail are not hampered by the nature of offence of which he is accused.
  5. Bail under section 170 Cr. P.C. : Under this section the authority to grant bail accrues to an officer in charge of the police station, “if the offence is bailable”. It is submitted that a station officer is empowered to grant bail if investigation has disclosed the offence to be bailable and it is immaterial what the initial accusation against him was. Under the imperative provisions of section 170, therefore, an officer in charge of the police station has either to forward the accused in custody or if the offence is bailable or on investigation found to be bailable, to accept bail for his appearance before a magistrate, he cannot entertain an application for the withdrawal of a complaint and, therefore, he cannot be discharged an accused.
  6. Bail under section 437 Cr. P.C.: The power to release on bail a person accused of a non-bailable offence is conferred upon only one class of police officers, namely an officer-in-charge of the Police Station under section 437 sub Section (I). When an officer in charge admits an accused to bail, it is mandatory for him to record the reasons or special reasons in the case diary and preserve the bail bonds until they are discharged either by the appearance of the accused in court or by the order of a competent court. For the purpose of bail in non-bailable offence, the Legislature has classified them under two heads: (1) those which are punishable with death or imprisonment for life; (2) those which are not so punishable. The age or sex or sickness or infirmity of the accused cannot be considered by a police officer for the purpose of granting bail. These matters may be taken in view by a court only. An officer in-charge of the police station may grant bail only when there are no reasonable grounds for believing that the accused has committed a non-bailable offence or when the non-bailable offence complained of is not punishable with death or life imprisonment.

Bail by Police when arrest made in pursuance of warrant

The relevant provisions of Code of Procedure in connection with above heading are confined in section 71 and 81 of Criminal Procedure Code.

  1. Bail under section 71 Cr. P.C.: The relevant provisions of Code of Procedure in connection with above heading are confined in section 71 and 81 of Criminal Procedure Code. It is a matter entirely at the discretion of the court issuing a warrant under this section to give a direction for the release of the arrested person on bail or not. Even in bailable offence, a court may not give such direction. In the case of Lachhmi Narain Vs. Emperor, the above has been stated.  When a person who is to be arrested is not arrested until the date on which he has to attend the court, the direction regarding the taking of bail lapses.
  2. Bail under section 80 & 81 Cr. P.C. : When a warrant of arrest is executed outside the district in which it was issued any police officer who is not a District Superintendent of police or the Commissioner of Police may release an arrested person according to the directions contained in the endorsement. But a District Superintendent of Police, the Commissioner of Police in presidency town with in the local limits of whose jurisdiction the arrest was made shall release on bail the arrested person, if the offence is bailable and such person is ready and willing to give bail to their satisfaction.

A police officer cannot release a person on bail simply because the arrested person is accused of a bailable offence. He has to comply strictly with the contents of the endorsement if any.

Bail to Lunatics :

Section 330, Cr. P.C. Bail cannot be claimed as a matter of right for persons of unsound mind. Courts have been vested with great powers and wide discretion in the matter of grant or refusal of bail. A Magistrate may release a person of unsound mind on bail even though he is charged of an offence of the most heinous type and may refuse bail in bailable case if he is of the opinion that bail should not be allowed.

An accused of unsound mind may be released on security, irrespective of the offence with which he is charged not only on the finding by the court that the accused is of unsound mind, but also prior to such finding, during the pendency of the inquiry into his state of mind [section 328 (2)]

Bail for Contempt in presence of Court under section 346 of Cr. P.C.

When an offence, as is described in section 175, Section 178, 179, 180 or 228 of I.P.C. is committed in the view or presence of a Criminal Court and that court, instead of proceeding under section 345, Cr.P.C., considers that the person accused of any of the offences referred to above should be imprisoned otherwise than in default of fine, or that a fine exceeding two hundred rupees should be imposed upon him, then the court after it has recorded the facts constituting the offence and the statement of the accused, may forward the case to a Magistrate having jurisdiction to try the same, and for the appearance of such accused person may require security to be given before such Magistrate or shall forward such person in custody to such Magistrate in case sufficient security is not given under this section as under the provisions of section 340, the person complained against has not to apply for bail to the court. It is the discretion of the court forwarding the complaint either to ensure the attendance of the accused by demanding a security for his appearance before the transferee Magistrate or it may just inform the accused of the date on which he has to appear before that court. He cannot be taken in custody merely because he has not applied for bail. He can be taken in custody if security is demanded from him and he does not give sufficient security.

Bail to First offender under section 360, Cr. P.C.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a Magistrate of the second class specially empowered by the State Government in this behalf, to release a convicted offender on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Magistrate may direct, and in the mean time to keep the peace and be of good behaviour. The Magistrate thus has discretion either to punish the offender with imprisonment or release him on probation of good conduct.

Basic Rule

India is a democratic country and the basic concept of democracy is that every individual must have personal liberty and freedom. It is the basic right of an individual which is protected by the state. Thus the concept of bail and personal liberty goes hand in hand and therefore every individual including the accused person has the right to seek bail in order to get himself released from custody until and unless proven guilty by a court of law. As enshrined under Article 21 of the Indian Constitution that the life and personal liberty of a person can’t be deprived except by the procedures laid down by the law.

Object

The basic goal behind arresting and detaining a person behind the jail is that when the accused is required by the court during the trial he must appear in court for the trial. The process of bail is a complex mechanism, it is considered to be very delicate and conflicting at the same time. The reason it is very delicate is that an accused seeks for bail when the trial is pending in the court and it can’t be said that the accused is innocent or culprit. Sometimes when the bail is not granted to the accused person it may curtail the liberty of the innocent accused or while granting bail may result in giving extra-liberty and freedom to the actual culprit.

It is a comprehensive statement used in general that an accused person may escape his crimes but an innocent shall not pay the price of some other person’s deed. Based on this ideology the code of criminal procedure has bifurcated the offences into two categories.

Cases in which bail to be taken (section 436 of CR.PC)

In this case, if a person who is not guilty of any non-bailable offence and gets arrested without a warrant by the police authority and is prepared to give bail, then it is the duty of the police authorities to release him. The person arrested may be released on the bond without submitting any sureties.

Appealability of the order (section 439 of the code)

Section 439 of the code states that any orders passed under section 436 of the code shall be appealable.

  1.   The order made by the magistrate to the session’s judge is appealable.
  2.   In case when the court of sessions passes an order to the court where an appeal lies from an order made by such court.

Investigation incomplete (section 167 of the code)

Under section 57 of the code states that a person arrested or taken into custody has to be released after 24 hours. Within those 24 hours, he has to be presented before the magistrate with a notice. The period of 24 hours can be extended if the investigation regarding the offence or crime committed has not been completed. Section 167 states that in order to extend the period of 24 hours for the purpose of investigation prior order has to be obtained from the magistrate. If the investigation is not completed the person arrested or detained shall be released. The period of detention shall not exceed 90 days (in case where the offence is punishable with the death penalty or life imprisonment) and 60 days (in case where the offence is punishable for a term less than ten years).

The maximum period for which an under-trial prisoner can be detained (section 436-A of the code)

Under section 436 A of the code states that the detention period for an undertrial prisoner other than the one who is accused of the criminal offences punishable with death or life imprisonment shall be released from detention if the person has been detained for one half of the maximum sentence provided for the offence committed by him.

When may bail be taken in case of non-bailable offences (section 437 of the code)?

It depends upon the discretion of the court or the police officials that they may release the person arrested for non-bailable offences until and unless there exists any reasonable grounds or apprehension that person arrested has committed any crime and is not guilty of any criminal liabilities which is punishable with life imprisonment or the death penalty.

Bail to require accused to appear before the next appellate court (section 437 A of the code)

Under section 437A of the code, it has been stated that in order to appear in the higher court as and when the higher court issues the notice against the judgment of the court it becomes mandatory for the trial court or the appellate court which requires the accused to execute the bail bond with sureties.

What do you mean by the Anticipatory Bail?

Under section 438 of the code, it has been stated that the term anticipatory bail can be understood through the expression anticipatory. Anticipatory bail is the bail granted by the court in anticipation of the arrest. When this bail is granted to a person it ensures that in case if the person is arrested in the near future then such person shall be released on this anticipatory bail. No questions can be raised on the release unless the person executing this bail is arrested and therefore it totally depends upon the arrest that the order granting such bail becomes operative.

The following provision of section 438 of the code was recommended by the law commission. On its 48th report, they expressed their observations regarding the provision of anticipatory bail and stated that such provision is a useful addition to the code but it should be used in extraordinary or exceptional cases only.

Section 438 of the code runs as follows:

When any person having the reasonable apprehension that he may be accused of committing the offence of non-bailable nature then such person can apply for anticipatory bail in the high court or the sessions court. The role of the court having competent jurisdiction shall give him direction under section 438 of the code that during the time when he gets arrested he shall be released on bail after taking into consideration the following conditions shall accept or reject the application filed for anticipatory bail by the person getting arrested.

Following are the factors:

  • The accusation made shall be grave and serious
  • Likelihood of the applicant to flee or abscond from justice
  • When the accusation is made with the intention of humiliating or injuring the person by making him arrested through that accusation.

Conditions under section 438 of the code involve the following things.

  • The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting arrested
  • The arrest of such person shall be in respect of the accusation of him committing non-bailable offence or cognizable offence and the courts having competent jurisdiction shall direct that in the event of the arrest the person shall be released.

Following conditions are imposed on the person seeking the anticipatory bail by the courts having competent jurisdiction

  • It is the duty of the person to appear or make himself available whenever required by the police officials for the investigation.
  • He must not induce or threat for dissuading him from disclosing facts of the case.
  • The applicant shall not go outside the territory of India without taking the prior permission of the court.
  • Or if the following conditions stated in point one and two are fulfilled and such person is ready to give bail, he should be released from custody subject.

Distinction between Bail and the anticipatory bail

Under section 437 of the code, it has been stated that a regular bail is available and granted to a person after the arrest when he is in the judicial or police custody,  however in the case of an anticipatory bail is available to a person before the arrest or if the person has reasonable apprehension of arrest.

Post-Conviction and Pre-Appeal Bail under section 389 Cr. P.C. :

The section contemplates post-conviction and pre-appeal period. Pending an appeal against conviction appellate Court may release the convict on bail and High Court can exercise this power when appeal lies to Sessions Court. So far as the court convicting the accused is concerned, the court is bond to admit the accused to bail pending order passed by appellate court or High Court when (a) the accused was already on bail and has been sentenced to imprisonment for a term not exceeding three years; or (b) when the offence was a bailable one. Even on fulfilment of the condition court on convicting the accused may refuse bail if there exists a special reason. Under this section an intention to present an appeal on the part of the convicted person is sufficient reason to justify the release of a convicted person on bail. It may further be noted that an order of bail under this section is for a limited period only and is applicable only to “convicted” persons and not to those who are bound over.

Bail while making reference under section 395 Cr. P.C. :

When a Magistrate makes a reference under section 395, CrPC, to the High Court for its opinion on the validity or otherwise of any act, Ordinance or Regulation or under any other section of this act, he may then in such case, pending the High Court’s decision, either commit the accused to jail or release him on bail to appear when called upon. The Magistrate will exercise his discretion in favour of the accused or against him according to the seriousness of the charge and severity of punishment provided in that act, Ordinance or Regulation.

Bail During Revision Under Section 397 Cr. P.C. :

The Sessions Court and the High Court in exercise of revisional power can call for records of inferior courts for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. When such revisional Court calls for the record of an inferior Court, he may direct that the execution of the sentence or order be suspended and, in case the accused is in confinement, then he may be released either on bail or on his own bond pending the examination of the record.

Bail under Section 437 Cr. P. C. Section 437:

It deals with bail in bailable offences. Grant of bail is a rule whereas refusal in this context is an exception. A person accused of bailable offence has the right to be released on bail. Bail in cases of bailable offences is compulsory bail. It is a discretionary option to grant a bail to a person accused of bailable offence. When a person who is suspected of committing a bailable offence is produced before a Magistrate and he is prepared to give bail, Magistrate has to release him on bail without having any other option.

Bail for non-bailable Offence: Under Section 437 Cr. P. C.:

The provisions of section 437 empower two authorities to consider the question of bail, namely-

  1. a “court” which includes a High Court and a Court of Session, and
  2. an officer-in-charge of the police station who has arrested or detained without warrant a person accused or suspected of the commission of a non-bailable offence. Although this section deals with the power or discretion of a court as well as a police officer in charge of police station to grant bail in non- bailable offences it has also laid down certain restrictions on the power of a police officer to grant bail and certain rights of an accused person to obtain bail when he is being tried by a Magistrate.

Section 437, Criminal Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by the police or the accused surrenders or appears, to grant or refuse bail to person accused of, or suspected of the commission of any non-bailable offence.

Criteria for Judicial Discretion to Grant or Refuse Bail

This judicial discretion has to answer one of the most important fundamental rights guaranteed under Article 21 of the Constitution, namely, personal liberty. Grant of bail may he gifting personal liberty to a person who has been arrested or who is anticipating an imminent arrest. On the other hand, refusal of bail implies sending that person to jail, or to police custody, as the case may be, and thereby depriving that person of his personal liberty.

In fact, the question of “bail or jail?” has a bearing not only on the individual concerned but also on the society in general, for, an innocent person sent to jail may not augur well for a just society whereas a dangerous and hardened criminal released on bail can do more harm to the society by way of destroying the evidence, threatening the witnesses, evading the judicial process or may be by committing more offences. The importance of this judicial discretion cannot therefore be understated.

Frequently Asked Questions:

  1. When can a bail be denied?
    1. As per section 436 (2), if a person has violated the conditions of the bail bond earlier, the court may refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay penalty for not appearing before the court in the proceedings against him
    2. It is clear that the provisions related to bail in case of non-bailable offences gives a discretionary power to the police and to the court. However the power is not without any restraint. Section 437 disallows to be given bail under following conditions:
      • If it appears there is a reasonable ground for believing that he has committed an offence punishable with life imprisonment or death.
      • If such offence is cognizable and the person has been previously been convicted of an offence with death or life imprisonment
  2. Is cancellation of bail possible?
    • Although there was no provision for cancellation of bail but in Talib’s case (AIR 1958) it has been held by the hon’able court that the absence of such provision not as a lacuna but as a recognized power of high court for cancellation of bail. According to section 437 (5), any court which has released a person on bail may direct a person to be arrested or put into custody. Section 439 CRPC also grants power to the high court and the courts of session to cancel the bail and put the person into custody.
  3. Can a bail be refused in cases of bailable offences?
    • Section 436 (2) of chapter 38 of Crpc has empowered the court for denial of bail in   cases of bailable offences if the accused fails to comply with the conditions of bail bonds.

Section 138 Of Negotiable Instruments Act: Overview

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A cheque is a widely used method of payment and post-dated cheques are frequently used in various transactions in business life. Post-dated cheques are given to provide a certain accommodation to the drawer of the cheque. Therefore, it becomes necessary to ensure that the drawer of the cheque does not abuse the accommodation given to him. The Negotiable Instruments Act, 1881 (“Act“) deals with negotiable instruments, such as promissory notes, bills of exchange, cheques etc. Chapter XVII containing Sections 138 to 142 was introduced with the aim of inculcating confidence in the efficacy of banking operations and giving credibility to negotiable instruments employed in business transactions. If a party issues a cheque as a mode of deferred payment and the payee of the cheque accepts the sameon the faith that he will get his payment on due date, then he should not suffer on account of non-payment.

The penal provisions contained in Sections 138 to 142 of the Act have been enacted to ensure that obligations undertaken by issuing cheques as a mode of deferred payment are honoured. Section 138 of the Act provides for circumstances under which a case for dishonour of cheques is filed.1 The ingredients required for complying with Section 138 are as follows:

  • a person must have drawn a cheque for payment of money to another for the discharge of any debt or other liability;
  • that cheque has been presented to the bank within a period of three months;
  • that cheque is returned by the bank unpaid, either because insufficient of funds or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;
  • the payee makes a demand for the payment of the money by giving a notice in writing to the drawer within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;
  • The drawer fails to make payment to the payee within 15 days of the receipt of the notice.

Procedure that is followed in matters with regard to Section 138 of the Act is as follows:

  1. A legal notice is to be issued to the drawer within 15 days of dishonor of cheque by registered post with all relevant facts. The drawer is given a time of 15 days to make the payment, if the payment is made then the matter is served and the issue is settled. On the other hand if the payment is not made then the complainant is to file a criminal case process under Section 138 of the Act, against the drawer within 30 days from the date of expiry of 15 days specified the notice,with the concerned magistrate court within the jurisdiction.
  2. The complainant or his authorized agent should appear in the witness box and provide relevant details for filing the case. If the court is satisfied and finds substance in the complainant, then summons will be issued to the accused to appear before the Court.
  3. If after being served with the summons the accused abstains himself from appearing then the court may issue a bailable warrant. Even after this if the drawer does not appear a non-bailable warrant may be issued.
  4. On appearance of the drawer/accused, he may furnish a bail bond to ensure his appearance during trial. After which the plea of accused is recorded.In case he pleads guilty, the court will post the matter for punishment. If the accused, denies the charges then he will be served with the copy of complaint.
  5. The Complainant may present his evidence by way of affidavit and produce all documents including the original in support of his complaint. The complainant will be cross examined by the accused or his counsel.
  6. The accused will be given an opportunity to lead his evidence. The accused will also be afforded an opportunity to submit his documents in support of his case, as well as witnesses in his support. Accused and his witnesses will be cross examined by the complainant.
  7. The last stage of the proceeding is that of the arguments after which the court will pass a judgment.If the accused is acquitted then the matter ends, but the complainant can go on further appeal in the High Court, similarly if the accused is convicted he can file an appeal in the Sessions Court.

It must be noted that the offence under Section 138 of the Act, has been made compoundable.

Recent Supreme Court rulings for speedy disposal of cases under Section 138 of the Act:

In 2017, Delhi High Court in Dayawati v. Yogesh Kumar Gosain took into account the question whether an offence under Section 138, which is a criminally compoundable case, could be settled by mediation.2 The Court held that even though an express statutory provision enabling the criminal court to refer the complainant and accused persons to alternate dispute redressal mechanisms has not been specifically provided by the Legislature. The Code of Criminal Procedure (“Cr.P.C.“) does permit and recognize settlement without stipulating or restricting the process by which it may be reached. Thus, there is no bar to utilizing the alternate dispute mechanisms including arbitration, mediation, conciliation (recognized under Section 89 of Civil Procedure Code, 19083) for the purposes of settling disputes which are the subject matter of offences covered under Section 320 of the Cr.P.C. It also stated the proceedings under Section 138 of the Act is distinct from other criminal cases and are really in the nature of a civil wrong which has been given criminal overtones.

In Meters and Instruments (P) Ltd. v. Kanchan Mehta, the Honourable Supreme Court after taking into consideration the object of introducing Section 138 and other provisions of Chapter XVII of the Act, observed as under4:

“18. From the above discussion following aspects emerge:

18.1. Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C.5 will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

18.2. The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

18.3. Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C.6 to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C.7 With this approach, prison sentence of more than one year may not be required in all cases.

18.4. Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank’s slip being prima facie evidence of the dishonour of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C.8 The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.”

Recent amendment:

The Negotiable Instruments (Amendment) Act, 2018 which came into effect from September 1, 2018 allows the Court trying an offence related to cheque bouncing, to direct the drawer to pay interim compensation not exceeding 20% of the cheque amount to the complainant within 60 days of the trial court’s order to pay such compensation. This interim compensation may be paid either in a summary trial or a summons case where the drawer pleads not guilty to the accusation made in the complaint; or upon framing of charge in any other case. Furthermore, the Amendment also empowers the Appellate Court, hearing appeals against conviction under s. 138, to direct the appellant to deposit a minimum 20 % of the fine/compensation awarded, in addition to interim compensation.

Our observations:

The recent steps undertaken by the judiciary and the changes brought by the legislature are steps in the right direction. But there is a need to realise the commercial realities in India and further expedite the process of recovery to discourage delays caused by the accused, unnecessary adjournments and frivolous appeals. Courts in India are overburdened and lack basic infrastructure to deal with dishonoured cheque cases.It is vital that people have faith in the integrity and honesty of the system. However, reliability of cheques in commercial dealings has been eroded to a great extent. Dishonour of cheque causes financial loss, inconvenience and injury to the payee.

We, accordingly, recommend as under:

  1. The number of Magistrates exclusively meant for cheque bounce cases should be doubled. Special Courts can be set up to deal with such cases. The Government mustprovide for funds needed to meet the costs involved in increasing the number of Magistrates, their supporting staff and other infrastructure.
  2. There should be no more than fifty matters before a judge on a particular day. Twenty-five in the morning session and twenty-five in the afternoon session.
  3. In order to address the time concern, the following suggests the following:
    1. Before the Court’s time i.e. before 11 AM. the Court’s Judicial clerk should sit for one hour, take roll call and entertain applications for adjournment by consent, adjourn the cases which appear to him require adjournment. In case where the Magistrate’s judicial attention/time is required, can be put up with remark by the Judicial clerk and those cases should be kept at 11 AM for judicial scrutiny.
    2. Judicial time from 11 AM should be exclusively devoted to taking down the evidence.
    3. The above will save Court’s time of almost 1 to 2 hours a day.
  4. No court fees for victims of cheque-bounce cases as he is not making a fresh monetary claim.
  5. Further, Section 139 of the Act9 mandates that unless the contrary is proved, it is to be presumed that the holder of a cheque received the cheque of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. This presumption is rebuttable by the accused by leading cogent evidence that there was no debt or liability. Once such rebuttal evidence is adduced and accepted by the court the evidential burden shifts back to the complainant. In this regard, it has to be noted by the Courts that the accused is given an opportunity twice to prove his innocence, first when the bank informs him about insufficiency of funds, and the second time he can raise his defence at the time of notice served under Section 138 of the Act. If he fails to do so, then the Court should presume that he is guilty and start process forthwith. In case of false cases, heavy costs should be imposed on the complainant.
  6. Since it is a quasi judicial proceeding, the intent is that the Court should take innovative approach and not succumb to technicalities. Technicalities should be found and turned down with firm hand.
  7. Magistrates must take suo moto action and a four hearing procedure should be followed. If the accused does not show up at the first hearing, a non-bailable warrant must be issued. At the second hearing the accused must show cause and file a defence. At the third hearing cross examination should be conducted. At the fourth hearing arguments should take place after which a judgment must follow.

Credit is given on trust and good faith. It is in the interest of the justice system that these reforms are brought as expeditiously as possible to further ease the process of doing business in India. Section 138 of the Act should not be used by person who borrows money on credit to delay his commitment to pay and it is the duty of the Court to ensure that it is not made a party to such dilatory tactics.

Footnotes

1. Dishonor of cheque for insufficiency, etc., of funds in the accounts: Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both:

PROVIDED that nothing contained in this section shall apply unless-

a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation: For the purpose of this section, “debt or other liability” means a legally enforceable debt or other liability.

2. Dayawati v. Yogesh Kumar Gosain 2017 SCC Online Del 11032.

3. Settlement of disputes outside the Court: (1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-

a) arbitration;

b) Conciliation

c) judicial settlement including settlement through Lok Adalat; or

d) mediation.

(2) Where a dispute had been referred-

a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.

b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat;

c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed.

4. Meters and Instruments (P) Ltd. v. Kanchan Mehta (2018) 1 SCC 560.

5. Power to stop proceedings in certain cases: In any summons- case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.

6. Order to pay compensation: (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-

a) in defraying the expenses properly incurred in the prosecution;

b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855 ), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto,

(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal,

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced,

(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision,

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

7. Money ordered to be paid recoverable as a fine: Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures ‘under Section 357’, the words and figures ‘or an order for payment of costs under Section 359’ had been inserted.

8. Judgment in cases tried summarily: In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.

9. Presumption in favour of holder: It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.

Source credits

REFORMS IN CRIMINAL LAWS

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REFORMS IN CRIMINAL LAWS

Why in news?

Recently, the Union Ministry asked all state governments to send their suggestions for Reforms in Criminal Laws as a major overhaul and recasting of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), thus paving way for reforming criminal justice system of India.

REFORMS IN CRIMINAL LAWS

REFORMS IN CRIMINAL LAWS

More about news

  • Bureau of Police Research and Development (BPRD) will undertake review of the laws such as IPC, CrPC, Indian Evidence Act and Narcotic Drugs and Psychotropic Substances Act.
    • BPRD under Ministry of Home Affairs was set up in 1970 in furtherance of the objective of the Government for the modernisation of police forces.

Need for reforms in Criminal laws (IPC and CrPC)

  • To make the laws more moral and ethical:
  • Some penal code offences need to be dropped
  • to make the code consistent with the new
  • ideals of constitutional morality, viz. the narrowest possible definitions of crimes, presumption of innocence etc.
  • To give a fair share to individual: In a criminal justice system, since an accused as an individual is pitted against the might of the state, criminal law must ensure that the state does not take undue advantage of its position as prosecutor.
    • To get rid of obsolete and archaic provisions: Criminal and penal codes need substantial changes to fit into the liberty model and its obsolete provisions must go. IPC was intended to be regularly revised by legislative amendment. This did not happen, as a result the courts had to undertake this task upon themselves. The result was not very satisfactory as most amendments have been ad hoc and merely reactive.
    • To remove ambiguity and vagueness: For instance, the distinction between ‘culpable homicide’ and ‘murder’ is criticised as the ‘weakest part of the code’ as definitions are obscure. ‘Culpable homicide’ is defined, but ‘homicide’ is not defined at all.

Way Ahead for Reforms in Criminal Laws

Any revision of the IPC, therefore, needs to be done while keeping several principles in mind. Such as:

  • Reforms must be introduced to uphold democratic values, and human rights must be given a high priority. Victimological underpinnings ought to be given a major thrust in reforming laws to identify the rights of crime victims.
  • Construction of new offences and reworking of the existing classification of offences must be informed by the principles of criminal jurisprudence which have substantially altered in the past four decades.
  • New types of punishments like community service orders, restitution orders, and other aspects of restorative and reformative justice could also be brought in this fold.
  • Classification of offences must be done in a manner conducive to management of crimes in the future.
  • Unprincipled criminalisation must be avoided to save the state from dealing with too many entrants into the criminal justice system.
  • On the procedural side, sentencing reforms are highly imperative. Principled sentencing is needed as judges at present have the discretion to decide the quantum and nature of sentence to be imposed.

Criminal justice is in a state of policy ambiguity therefore there is a need to draft a clear policy that should inform the changes to be envisaged in the IPC or CrPC.

About IPC and CrPC

  • IPC determines the definition of crime, while the CRPC informs about the criminal investigations process
  • Indian Penal Code: It is the official criminal code of India. It is a comprehensive code which covers all substantive aspects of criminal law. The then British Legislature drafted the Code in 1860 on the recommendations of first law commission of India established under Lord Macaulay. Legislature has amended the Code has several times and is now supplemented by other criminal provisions.
    • Ex: Section 377(Unnatural offences), Repealed Section 309(Suicide), Section 497(Adultery), now repealed
  • CrPC: It is the main legislation on procedure for administration of substantive criminal law in India. Legislature enacted it in 1973, though initially created in 1882. It provides the machinery for the investigation of crime, apprehension of suspected criminals, collection of evidence, determination of guilt or innocence of the accused person and the determination of punishment of the guilty.

Effect of lost / stolen cheque on Cheque Bouncing 138 NI Act case

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Section 138 of the Negotiable Instruments Act, 1881 provides for a punishment if a person who has issued a cheque is unable to clear the cheque and the said cheque gets dishonored. A criminal case is made against the person who had issued the cheque (drawer) for issuing a cheque and fraudulently not having sufficient funds in his account or for a stop payment direction to the bank. The maximum punishment in such cases is upto 2 years imprisonment, or fine amounting to double the cheque amount, or both. The intent of the legislature behind such an offence was that if a person has issued a cheque for payment to somebody, in that case he should respect such action and if he fails to make the payment due to insufficiency of funds then he would be criminally tried.

In various cases, the cheque has been lost / stolen by someone and then because the cheque was not credited and the payment was not made by the bank in favor of the person who had presented the cheque to the bank, in such a case will the offence still be made under the provisions of Section 138 of the Negotiable Instruments Act, 1881?

According to Section 138 of the Negotiable Instruments Act,

“138. Dishonour of cheque for insufficiency, etc. of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation.—For the purposes of this section, ‘debt or other liability’ means a legally enforceable debt or other liability.”

On a simple reading of the above section, we can understand from the said provision that a legal fiction has been created that the person who had drawn the cheque is presumed to have committed an offence under the act in the said circumstances. However, “A legal fiction, as is well known, although is required to be given full effect, has its own limitations. It cannot be taken recourse to for any purpose other than the one mentioned in the statute itself”[1]. On this aspect, the Supreme Court has observed in the case of State of A.P. v. A.P. Pensioners’ Assn. [2] that,

“30. … In other words, all the consequences ordinarily flowing from a rule would be given effect to if the rule otherwise does not limit the operation thereof. If the rule itself provides a limitation on its operation, the consequences flowing from the legal fiction have to be understood in the light of the limitations prescribed. Thus, it is not possible to construe the legal fiction as simply as suggested by Mr Lalit.”

The Supreme Court in the case of Raj Kumar Khurana v. State of (NCT OF DELHI) and Another,[1] had decided whether if a cheque is lost or reported stolen, can a case of cheque bouncing under 138 NI Act be still made, and observed that,

“Section 138 of the Act moreover provides for a penal provision. A penal provision created by reason of a legal fiction must receive strict construction. (See R. Kalyani v. Janak C. Mehta[3] and DCM Financial Services Ltd. v. J.N. Sareen[4]) Such a penal provision, enacted in terms of the legal fiction drawn would be attracted when a cheque is returned by the bank unpaid. Such non-payment may either be:

(i) because of the amount of money standing to the credit of that account is insufficient to honour the cheque, or

(ii) it exceeds the amount arranged to be paid from that account by an agreement made with that bank.

Before a proceeding thereunder is initiated, all the legal requirements therefor must be complied with. The court must be satisfied that all the ingredients of commission of an offence under the said provision have been complied with.”

The Supreme Court further observed that since the parameters for invoking the provisions of Section 138 NI Act are limited, the Bank’s refusal to honor the cheque is not mischief as per the provisions of Section 138 NI Act.

Thus, as per the Supreme Court, if it can be proved that the cheque was reported stolen or lost and the same was intimated to the bank and / or to the police, a complaint under Section 138 NI Act cannot be made out as there has to be a strict interpretation that has to be given to the provisions of Section 138 because of the legal fiction that has been made in it.

——————–

[1] (2009) 6 SCC 72

[2] (2005) 13 SCC 161

[3] (2009) 1 SCC 516

[4] (2008) 8 SCC 1

Criminal Liability of Corporate Officials in India

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For a long time, corporations in India were not held liable for criminal offences due to the requirement of mens rea or the intention to commit the offence and inability to award imprisonment or arrest, etc. However, corporations are no longer immune.

Laying the Theoretical Framework: Corporate Criminal Liability

The recognition of the company as a separate legal entity is the basic cornerstone of laws relating to corporate liability around the world. However, courts struggled in attempting to fasten liability over companies for acts which were considered criminal offences. The courts had historically struggled on two main fronts in this regard

(1) to assign mens rea, i.e. a criminal intent factor to fictional entities such as companies, and

(2) to punish corporates where statutory punishments were mostly corporal in nature, i.e. requiring punishment via imprisonment.

On the face of this need, emerged the doctrine of corporate criminal liability, which basically enables the courts to single out individuals responsible for criminal acts committed in the name of companies. For offences which did not require the proof of mens rea, the simple answer that courts came up with was to introduce a modified version of the Doctrine of Vicarious Liability through which the controlling persons of the company would be made liable[i]. But soon company directors were also brought to answer for the criminal acts for which criminal intent was also necessary to be proven[ii]. This was called the theory of ‘Identification’ or ‘Attribution’, a modified form of vicarious liability, where for the purpose of the criminal act, the person in control of the affairs of the company (that is to say its directors and managers) and the company were considered one and the same.

Jurisprudence of Corporate Criminal Liability of Directors

Gone are the times when the world viewed Indian Companies as ‘family businesses’. With time, the structures adopted in Indian companies have grown increasingly specialized and complex, with specific directors being nominated to take charge of specified activities of the Company. As we will see, the provisions for making the direction and management of a company liable are mostly deeming provisions. However, there can be an opinion amongst stakeholders while dividing duties amongst the board members that in case criminal liability arises against the company then the director nominated for overlooking that aspect of its business shall also be held criminally liable. The legal approach, though, is a little more complex than that.

Earlier, the courts in India only recognized that companies can act through their managers and directors, but the law as it stands now however, consolidates the position that companies are as culpable as any living person and can be prosecuted and punished for the same, this is governed by two major decisions in this regard. First is the case of Standard Chartered Bank v. Directorate of Enforcement[iii] wherein the constitution bench of the Supreme Court held that a company can be prosecuted and convicted for an offence requiring minimum imprisonment. And secondly, in Iridium India Telecom Ltd. v. Motorola Inc[iv], wherein the issue was whether a company could be held liable under Section 420 of the Indian Penal Code, 1860, the Apex Court answered in the affirmative and clarified further, that even if the offence would require the proof of mens rea, a company can be made liable to the act as the guilty mind of the person in control of the company’s affairs is ‘attributed’ to the company as well.

Director’s Liability under India’s Legislative Framework

Certain legislations have a provision titled as ‘Offences by Companies’, which makes the person in charge of and responsible at the time of commission of the offence liable for that offence along with the company unless the person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commissioning of such offence. Under the said provision, the director, manager, secretary or any other official of the company may also be held liable if it is shown that the offence was committed with his consent or connivance.

The Companies Act, 1956 employed the concept of “officer who is in default”, to impose the liability for defaults by a company over officers responsible for its management. However, penalties under the Companies Act, 1956 were seen as largely ineffective against cases of serious internal frauds committed by the promoters and senior management of companies. But, with the enactment of the Companies Act, 2013 ( the “Act”), came also the statutory recognition of the duties of a director, such as exercise of due and reasonable care, skill, diligence, and independent judgement.  Earlier, by virtue of their positions, only the MD, whole-time directors, and company secretaries used to fall within the scope of “officer who is in default”, but the Act has significantly expanded this scope to include any person who would, in the given scenario, have had superintendence/ control/ direction/ management over the affairs of the company. Under the Act, independent directors can also be made answerable for lapses in performing their duties. The Act also includes the elements of knowledge and intent in determining who is an officer who is in default. Moreover, section 447 of the Act, which deals with fraud, makes persons liable who act or abuse their position with intent to deceive, to gain undue advantage, or to injure the legitimate interests of others (company/ shareholders/ creditor/ persons) whether or not there is wrongful gain or loss. Nevertheless, it is necessary to prove intent and knowledge in most cases.

Apart from the Companies Act, 2013, offences by companies are also stipulated under various other legislations. These provisions extend the liability for contravening the provisions under the relevant statute to companies, and the persons in charge of and responsible for the conduct of the business of the company. Further, these provisions typically provide for a non-obstante clause which stipulates that if it is proved that the director, manager, secretary or other officer of the company connived, consented to the offence or can be attributed to the negligence, then such director, manager, secretary or other officer shall also be deemed guilty and proceeded and punished accordingly.

Some of the legislations that contain the above-mentioned provision would be as follows:-

  • the Air (Prevention and Control of Pollution) Act, 1981;
  • the Water (Prevention & Control of Pollution) Act, 1974;
  • the Prevention of Money Laundering Act, 2002;
  • the Securities Contracts (Regulation) Act, 1956;
  • the Securities Exchange Board of India Act, 1992;
  • the Competition Act, 2002; and
  • the Income Tax Act, 1961.

Supreme Court on Liability of Corporations and its Officials

The law on this aspect has evolved over time. Now, a corporation can be convicted of offences involving mens rea by applying the doctrine of attribution[1]. Thus, the corporation can be held responsible for offences committed in relation to the business of the corporation by the persons in control of its affairs. The legal position in the US and UK has also crystallised to ensure a corporation can be held liable for crimes of intent. In the UK, the courts have adopted the doctrine of attribution to the corporation liable for acts committed by the directing mind, i.e., the directors and managers.

It is now clear that the criminal intention of the company’s directors or officials can be attributed to the company to make the company liable. However, the question then arises whether the reverse is possible – i.e. whether the officials of the company can be held responsible for acts of the company? This question was recently answered by the Supreme Court of India in Sunil Bharti Mittal v. Central Bureau of Investigation ((2015) 4 SCC 609). The Apex Court in this case in no uncertain terms held that an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company. However, to make an individual liable, there must be sufficient evidence of his active role coupled with criminal intent and/or a provision must be specifically incorporated into the statutory regime that attracts the doctrine of vicarious liability[2]. It may thus be noted that when the company is the offender, vicarious liability of the directors cannot be imputed automatically, in the absence of any statutory provision to this effect.

The question that arises basis the above discussion, then, is whether any person simply designated as an officer in default by the Company, can be held criminally liable.

In Sunil Bharti Mittal v. Central Bureau of Intelligence[v] the Supreme Court gave recognition to the theory of attribution/ identification in determining whether a director or person in charge of the company can be prosecuted for an offence by the company. The court stated that the person upon whom the acts of the company must be attributed must be the ‘alter-ego’ of the company, that is the degree of identity between the acts of the company and the ‘directing mind and will’ of the responsible persons must be high enough for the courts to infer them as one and the same. Moreover, just because a person is at the helm of the affairs, that would not make him/her liable for crimes requiring intent. In this case, the Supreme Court held that the special court was right to not accept charge sheet against the managing director just because he was the head of the company.

The discerning criteria thus is whether the proof of intent is required to prove an offence. An officer who is in default for contraventions which do not require proof of intent, may, thus, be prosecuted by virtue of his/her position, but the same is simply not tenable in offences where proof of intent is required.

An example of a statute which allows the nomination of person-in-charge for the obligations under a legislation is under section 66 of the Food Safety and Standards Act, 2006,. The provision in this enactment state that a director or manager can be nominated to be responsible for any contraventions of the provisions of the respective enactments.

It is to be noted, that only when the legislation permits the nomination of the responsible director, and such nomination is made before the commission of the offence, only then a director specifically nominated for offences under an act can be prosecuted, even if there is no direct intent[vi].

Hence,

The thumb rule is thus that unless it is specifically provided in a statute, a director may be made criminally liable only if there is existing proof of intent against the director. The directors must ensure that they diligently avoid the commission of such offences in the name of the Company, the onus shall nevertheless remain upon them to prove that the offence was committed without their knowledge or consent[vii].

Who can be held liable?

It is worth clarifying that a person cannot be held liable merely on the basis of the designation. No presumption can be drawn against the person occupying the position of a chairman or managing director only on the basis of their position. There is no universal rule that a director of a company is in charge of its everyday affairs. A person should fulfil the ‘legal requirement’ of being a person in law (under the statute governing companies) responsible to the company for the conduct of the business of the company and also fulfil the ‘factual requirement’ of being a person in charge of the business of the company.

The concept of vicarious liability of corporate officials has evolved substantially over the past decade. It is worth noting that it has become a tendency to implead the senior management officials of the company along with the company to exert pressure on the company to settle. In a lot of instances, such senior officials may also be summoned by the investigating authorities. There is almost unanimous judicial opinion that a clear case needs to be spelt out against the person in the complaint before fastening criminal liability.

Furthermore, in case the court is required to issue summons, there has to be strict compliance with statutory requirements. Summoning is a serious issue and criminal law cannot be set in motion as a matter of routine, and summons should only be issued after recording reasons in writing. The Indian Courts have so far been very cautious in their approach and have generally protected the corporate officials from harassment by the investigating agencies unless there is enough material against the official concerned.

It may be interesting to note that the above provision attaching liability to the directors, etc., is similar to the law in the UK to some extent wherein the corporate officials can be held liable if they consented, connived or neglected in their duties. Consent and connivance both presuppose knowledge.

Similarly, in the US, the corporate officials are held liable under the ‘Responsible Corporate Officer Doctrine’, which holds a corporate officer criminally liable for the criminal violations committed by a subordinate where the said officer occupies a position of responsibility and authority in the company and has the power to prevent such a violation, but fails to do so.

However, it must be noted that as opposed to the US and UK, there is no provision for Deferred Prosecution Agreements (DPA) in India, wherein the company can reach any settlement with the prosecution to avoid criminal sanctions.

To the comfort of corporates, so far we have seen that courts have taken a balanced view. They have not shied away from acting against the senior official if it is established that the official was responsible for the crime. At the same time, however, they have protected senior officials where their personal involvement could not be proved. Having said that, the need of the hour is to take certain deterrent measures to impose costs or punish complainants for initiating frivolous proceedings.

 

[1] Doctrine of Attribution– The doctrine of attribution implies that the criminal intent of the “alter ego” of the company / body corporate, i.e., the person or group of person that guide the business of the company, would be imputed to the corporation. Mens rea is attributed to the company on the basis of the alter ego of the company.

 [2] Doctrine of Vicarious Liability- This doctrine implies that the officials of the company shall be held responsible for the acts of the company by virtue of their position in the company.

[i] Queen v. Great North of England Railways Co., [1846] 9 QB 315; State v. Morris & Essex Rail Co.,23 N.J.L. 360 (1852); Commonwealth v. Proprietors of New Bedford Bridge, 68 Mass (2 Gray) 339 (1854)

[ii] New York Central and Hudson River Rail Road Co. v. United States, 212 US 431 (1909); Moussell Brothers Ltd. v. London & North West Railway Co Ltd, [1917] 2 KB 836; Lennard’s Carrying Co Ltd v. Asiatic Petroleum Co Ltd, [1915] AC 705

[iii] AIR 2005 SC 2622

[iv] (2011) 1 SCC 74

[v] AIR 2015 SC 923

[vi] R. Banerjee v. H.D. Dubey, MANU/SC/0731/1992

[vii] Ministry of Agriculture v. Mayhco Monsanto Biotech (India) Limited, (2016) 137 SCL 373 [CCI]

 

PROCESS OF TRIAL OF CRIMINAL CASES IN INDIA

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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:
Offence Cognizable or Non-Cognizable Bailable or Non-bailable
Punishable With Imprisonment For Non-cognizable Bailable
Punishable With Imprisonment For Cognizable Non-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

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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.

STAGES OF CRIMINAL TRIAL

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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

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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.