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PROVISIONS RELATED TO ARREST UNDER CRPC (Part1)

PROVISIONS RELATED TO ARREST UNDER CRPC (Part 1)

Introduction

An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.

The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what an arrest constitutes can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’. 

All you need to know about Preventive Arrest Laws in India - iPleadersIf broadly characterized arrest is of two types-

  1. Arrest made in pursuance with a warrant issued by the magistrate.
  2. Arrest made without any warrant but within the established legal provisions.

Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

Section 41 says the police officer has to be satisfied that such arrest is necessary:

  1. To prevent such person from further committing such offence
  2. For purposes of investigation
  3. Prevent the person from causing evidence to disappear. 

If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such an arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property.  Section 41(1) of CrPC,1973 explains when a person can be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. Section 41A –  gives direction to the police officer to issue a notice to the person if he feels the person is not required to be arrested. This in effect means that contrary to popular perception, a police officer is not required to arrest a person if he does not think such arrest is not required for the purposes mentioned in Section 41 mentioned above. 

Section 41B – enjoins that while making an arrest the police officer shall: –

  1. a) bear an accurate, visible, and clear identification of name which will facilitate the identification.
  2. b) prepare a memo of arrest which shall be:
  3. Attested by one family member or member of the society.
  4. counter signed by the accused.
  5. This evidently is in terms of Article 20/21 which insulates a person from

arbitrary arrest. 

Section 41-C: When a memo is not attested by a family member, the person so arrested must be informed that he has a right to inform a family member. This once again protects a person from arbitrary arrest and prevents mysterious disappearances.

Section 41-D: The person arrested can meet an advocate of his choice during interrogation. This is once again in line with the constitutional right of a person to counsel, even if it is free.

Arrest on refusal to give name and residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence. 

Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.

Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.

Section 42(3) says that if the true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.

Procedure of arrest by a private person

The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.

Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.

Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.

Arrest by magistrate

Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.

Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct any person in his presence, within his local jurisdiction of whom he is competent to arrest at that time and in the circumstances to arrest. 

An exception of the Armed forces

The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.

Section 45(1) states that no member of the armed forces can be arrested for anything done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.

Section 45(2) lays out that the State Government may through a notification can direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).

Provisions related to arrest of women

Section 46(1) There should be a female officer to arrest a female.

Section 46(4) prescribes that no women shall be arrested after sunset and before sunrise, unless in exceptional cases, and female officers shall make the arrest in exceptional cases with permission of the Judicial magistrate.

Section 50 enjoins the police officer to inform the arrested person about the grounds of arrest and that he is entitled to the right of bail and he could arrange the sureties.

Section 50(A)(1) makes it obligatory for the police officer making the arrest to

immediately inform the arrestee’s friends, relatives or such other persons about the place

where the arrested person is being detained and inform the arrested person of such

rights. Entries of all the arrests shall be kept at the police station.

Section 50(2) says “the police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station”.

Under Section 56, a police officer is to immediately take a person arrested without a warrant before the magistrate having jurisdiction or to the officer in charge of the police station.

Section 57 (A) says that the arrested person shall not be detained for more than 24 hours except the time taken during the journey before the production bef

ore the magistrate.

Section 58 says that the cases of all persons arrested without warrant must be reported to the local DM or SDM.

Under Section 60(A), arrests are to be made strictly according to the code, no arrest shall be made except in accordance with the provisions of the code.

Sec 50 (A)(4) prescribes that it shall be the duty of the magistrate before whom such arrested person is produced to satisfy himself that the requirement of section 50(2) – i.e., that the police had an obligation to inform relatives or such nominated persons where he is being kept in custody and the arrestee had been informed of such an obligation have been complied with.

Section 167 prescribes the procedure after the arrested person is brought before the magistrate. The police officer has to produce the relevant papers, including entries of the case diary. Sub section 3 gives discretion to the magistrate to remand an accused to police custody but only on recording his reasons.

Section 47 of CrPC provides for the search of a place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise. 

But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.

Any police officer or person making the arrest is authorised to break open the door in order to liberate himself if he is detained in that process. 

Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful. 

The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.

Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay (usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC. However, there is a practice of detaining the person in isolation due to Covid -19, and the duration is not calculated towards 24 hours; which in the eyes of the author bad; because if a person is required to be produced before magistrate in 24 hours, then he can be so produced even through video conferencing, without having to produce him personally. Therefore, compromise with the constitutional provisions should not be taken lightly by the courts. 

Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion that he may commit a cognizable offence. However, this comes with certain conditions: the anticipated offence should be cognizable and the officer should feel that the offence would be prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate. However, Numerous petitions have been filed questioning the constitutional validity of these sections as it gives plenty of room for the misuse of powers under these sections.

 

ARREST WITH WARRANT

  1. Form of warrant of arrest and duration.—

(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court. 

(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed. 

  1. Power to direct security to be taken.

(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody. 

(2) The endorsement shall state— (a) the number of sureties; (b) the amount in which they and the person for whose arrest the warrant is issued, are to be respectively bound; (c) the time at which he is to attend before the Court. 

(3) Whenever security is taken under this section, the officer to whom the warrant is directed shall forward the bond to the Court. 

  1. Warrants to whom directed.

(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the Court issuing such a warrant may, if its immediate execution is necessary and no police officer is immediately available, direct it to any other person or persons, and such person or persons shall execute the same. 

(2) When a warrant is directed to more officers or persons than one, it may be executed by all, or by any one or more of them. 

  1. Warrant may be directed to any person.— 

(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. 

(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. 

(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71.

RIGHT TO LEGAL REPRESENTATION

The Supreme court upheld the right of consulting a legal practitioner by an accused as a Constitutional right under Articles 21 and 22(1) of the Constitution of India.

Article 22(1) of the Constitution of India states that a person who is arrested shall not be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Therefore, this mandatory procedural requirement, reiterated by the Supreme Court in the 1997 case of DK Basu v. Union of India, entails that the person arrested has to not only be informed of the grounds of such arrest, but should also be asked by the Magistrate as to whether he/she requires to consult and be defended by his choice of lawyer.

In the 2018 case of Gautam Navlakha v. State (NCT of Delhi), it had been submitted by the State the “seriousness of the offence and the urgency of the situation” may lead to overlooking the requirements of law in letter and spirit. However, the Delhi High Court observed that in such cases, the concerned Magistrate would have to be satisfied with the explanation offered for non-compliance – “the departure from the mandatory requirement of the Constitution and the CrPC ought not to be lightly countenanced”.

Moreover, mere representation by a legal aid lawyer, without ensuring whether the accused had the opportunity to consult a lawyer of her own choice, will not satisfy the requirement of Art 22(1) of the Constitution, the High Court ruled. The Court also held that the mere fact that there was a legal aid lawyer representing the accused will not satisfy the requirement of Article 22(1), if it was not an effective representation. The Court noted that the legal aid lawyer in that case had not made any submissions before the Magistrate issued the transit remand order, and therefore the representation was merely “cosmetic”.

Two paragraphs from the judgment are worthy of being quoted here : “Turning to the order dated 28thAugust 2018 of the learned CMM in the present case, the Court finds that a duty lawyer empanelled pursuant to the Scheme of the National Legal Services Authority (“NALSA‟), the statutory body under the Legal Services Authorities Act, 1987(LSAA), was shown representing the person arrested, i.e., the present Petitioner. However, the Magistrate does not appear to have asked the arrested person, as mandated by Article 22 (1) of the Constitution, whether he was informed about the grounds of arrest and whether he wishes to consult and be defended by a legal practitioner of his choice. This requirement does not get diluted one bit only because the proceedings are for transit remand”. “There is no mention of the legal aid lawyer having made any submission whatsoever. The learned CMM did not even think it necessary to record any such submission. It thus appears to the Court that the appearance of the Duty lawyer for the Petitioner was cosmetic and not in the true spirit of Article 22(1) of the Constitution read with Section 12 (g) of the LSA which guarantees free legal aid to every person in custody.

GUIDELINES FOR INTER-STATE ARREST

In Sandeep Kumar v State, a division bench of Justices Dr S Muralidhar and Talwant Singh of the Delhi High Court had also directed for the implementation of guidelines that had been proposed by the Committee and pertained to protocol that must be followed by the police in the event of inter-state investigation or arrest. Relying on Sections 48, 77, 79 and 80 of the CrPC,

The guidelines stated the following guidelines for inter-state arrest:

  1. The Police Officer after assignment of the case to him, must seek prior permission/sanction of the higher/superior officers in writing or on phone (in case of urgency) to go out of State/UT to carry out investigation.
  2. In a case when the police officer decides to effect an arrest, he must set out the facts and record reasons in writing disclosing the satisfaction that arrest is necessary for the purpose of investigation. At first instance, he should move the Jurisdictional Magistrate to seek arrest/search warrants under Section 78 and 79 Cr PC except in emergent cases when the time taken is likely to result in escape of the accused or disappearance of incriminating evidence or the procurement of arrest/search warrant would defeat the purpose. The Police Officer must record reasons as to what were the compelling reasons to visit another State without getting arrest/search warrants.
  3. Before proceeding outside the State, the police officer must make a comprehensive departure entry in the Daily Diary of his Police Station. It should contain names of the police officials and private individuals accompanying him; vehicle number; purpose of visit; specific place(s) to be visited; time and date of departure.
  4. If the possible arrestee is a female, a lady police officer will be made part of the team. The Police Officers should take their identity cards with them. All police officers in the team should be in uniform; bear accurate, visible and clear identification and name tags with their designations.
  5. Before visiting the other State, the Police Officer must endeavour to establish contact with the local Police Station in whose jurisdiction he is to conduct the investigation. He must carry with him the translated copies of the Complaint/FIR and other documents in the language of the State which he intends to visit.
  6. After reaching the destination, first of all, he should inform the concerned police station of the purpose of his visit to seek assistance and cooperation. The concerned SHO should provide/render all legal assistance to him. Entry to this effect must be made at the said police station.
  7. After reaching the spot of investigation, search, if any should be strictly conducted in compliance of the procedure laid down, u/s 100 Cr PC. All endeavour should be made to join independent public witnesses from the neighbourhood. In case of arrest, the police officer must follow the procedure u/s 41A and 41B and Section 50 and 51 Cr PC. The process of arrest carried out by the police must be in compliance with the guidelines given in DK Basu case (Supra) and the provisions of CrPC.
  8. The arrested person must be given an opportunity to consult his lawyer before he is taken out of State.
  9. While returning, the police officer must visit the local police station and cause an entry made in the Daily Diary specifying the name and address of the person(s) being taken out of the State; articles if any, recovered. The victim’s name can also be indicated.
  10. Endeavor should be made to obtain transit remand after producing the arrestee before the nearest Magistrate unless exigencies of the situation warrant otherwise and the person can be produced before the Magistrate having jurisdiction of the case without infringing the mandate of S. 56 and 57 of Cr.P.C. within 24 hours.
  11. The magistrate before whom the arrestee is produced, must apply his mind to the facts of the case and should not grant transit remand mechanically. He must satisfy himself that there exists material in the form of entries in the case diary that justifies the prayer for transit remand. The act of directing remand of an accused is fundamentally a judicial decision. The magistrate does not act in executive capacity while ordering detention of the accused. He must ensure that requirements of S. 41 (l)(b) are satisfied. The police officer must send the case diary along with the remand report so that the magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. The magistrate should briefly set out reasons for his decision. (Manubhai Ratilal Patel v. State of Gujarat, (2013) 1 SCC 314).
  12. Another mandatory procedural requirement for the Magistrate considering a transit remand application is spelt out in Article 22 (1) of Constitution of India. This entitles the person arrested to be informed as soon as may be the grounds of such arrest. The Magistrate has to ensure that the arrested person is not denied the right to consult and to be defended by a legal practitioner of his choice. The Magistrate should ask the person arrested brought before him whether in fact he has been informed of the grounds of arrest and whether he requires to consult and be defended by any legal practitioner of his choice. (DK Basu, Supra) After the pronouncement of this judgment by the Hon’ble Supreme Court, new Sections 41A to 41D have been added to prevent unnecessary arrest and misuse of powers. Denying a person of his liberty is a serious matter.
  13. In terms of S. 41C, control rooms are established in every district. Names and addresses of the persons arrested and designation of the Police Officers who made the arrest be displayed. The Control Room at State level must collect details of the persons so arrested.
  14. The police officer must record all the proceedings conducted by him at the spot and prepare an ‘arrest memo’ indicating time, date of arrest and name of the relation/friend to whom intimation of arrest has been given. It must reveal the reasons for arrest.
  15. Since the arrestee is to be taken out of his State to a place away where he may not have any acquaintance, he may be permitted to take along with him (if possible), his family member/acquaintance to remain with him till he is produced before the jurisdictional Magistrate. Such family members would be able to arrange legal assistance for him.
  16. The arrested person must be produced before the jurisdictional Magistrate at the earliest, in any case, not beyond 24 hours from the date of arrest excluding the journey time so that arrest of such person and his detention, if necessary, may be justified by a judicial order. The 24 hours period prescribed u/s 57 Cr PC is the outermost limit beyond which a person cannot be detained in police custody. It does not empower a police officer to keep a person in a police station a minute longer than is necessary for the purpose of investigation and it does not give him an absolute right to keep a person till 24 hours.
  17. On arrival at the police station, the police officer must make an entry in the record and indicate the investigation carried out by him, the person arrested and the articles recovered. He should also inform his senior police officers/SHO concerned about it immediately. The superior Police Officer shall personally supervise such investigation.
  18. The police officer should effect arrest u/s 41(l)(b) Cr PC only when he has reasonable suspicion and credible information. He must satisfy himself about the existence of the material to effect arrest. There must be definite facts or averments as distinguished from vague surmises or personal feelings. The materials before him must be sufficient to cause a bona-de belief. He cannot take shelter under another person’s belief or judgment. He must affect arrest at his own risk and responsibility as the effect of illegal arrest could be commission of offence of wrongful confinement punishable u/s 342 IPC. Burden lies on the IO to satisfy the Court about his bona-de. No arrest can be made because it is lawful for the police officer to do so. Denying a person of his liberty is a serious matter.
  19. Medical examination soon after arrest to avoid possibility of physical torture during custody should be conducted.
  20. The IO must maintain a complete and comprehensive case diary indicating the investigation carried out by him.
  21. The log book of the vehicle used for transportation must be maintained and signed. The IO must indicate whether the vehicle was official or a private one; name of its driver and how and by whom it was arranged. Only official vehicles should be used for transportation to the extent possible.
  22. At the time of recovery of the prosecutrix, the police officer, if he is satisfied that she is an adult, should ascertain from her at the spot, whether she was present there with her free will. If the victim/prosecutrix is not willing to accompany the police officer or her relatives, the police officer must not exert force on the prosecutrix to take her away against her wishes. However, if the prosecutrix/victim of her own accord expresses willingness to accompany the police officer/relatives, her consent in writing should be obtained at the spot.
  23. In cases where the police officer finds the victim/prosecutrix to be a ‘minor’, soon after recovery, she should be produced before the local Child Welfare Committee for further decision regarding her custody. She must not be made to stay in the Police Station during night hours.
  24. Statement of the prosecutrix u/s 164 Cr.P.C. must be recorded at the earliest.
  25. MHA/Central Govt/Commissioner of Police must frame suitable guidelines for police officers to render all suitable assistance. The failure to adhere to the rules/guidelines should render the police officer liable for departmental action as well as contempt of the Court.
  26. The public prosecutor should provide required assistance to the police officer visiting his State at the time of seeking transit remand.
  27. The MHA/State Government should circulate the Rules/Guidelines/Notifications etc. from time to time to the Police officers in the State to create awareness. Periodically training should be provided to the Police Officers to sensitize them.
  28. Instructions/Guidelines of similar nature should exist in all the States/UTs for speedy, smooth and effective inter-State investigation.
  29. The delinquent Police Officer can be directed to pay compensation under the public law and by way of strict liability.
  30. If, in case of urgency or other considerations in the interest of investigation, it is not found feasible to inform the police station encompassing the jurisdiction of the search, seizure, arrest or investigation before the event, this should be done soon after the search, seizure, arrest etc. has been conducted.

What is Bail Bond? | Criminal Law

What is Bail Bond?

Introduction

A bail bond is an arrangement made by a convicted suspect to appear for trial or to pay the amount of money set by the judge. The bail bond is co-signed by a bail bondsman, who charges the prisoner a fee in exchange for obtaining the ransom. When someone is charged and booked for a serious crime, they have to wait for a bail hearing. During the hearing, the judge must weigh the charges and circumstances before determining the size of the bond. If the defendant is unable to pay the bail fee, they may either remain in jail until their court date or employ a bail bond agent. The bail bond attorney will charge a percentage of the bail amount as a non-refundable fee and then give bail to the defendant when the bail bond paperwork is done.Provisions for bail in trial court & inherent powers of high court : a webinar brief - iPleaders

The following article deals with the whole process of Bail Bonds and the Role of Bail bond agents with some advantages and disadvantages of this facility provided to the suspects. A remarkable case law issued under the topic of Bail bonds was of Hussainara Khatoon V. State of Bihar, 1979 Where it has been shown that the transgression of justice which might poorly accused little Indian or forced into longer cellular servitude for small offenses because their bail proceedings go beyond their meager means and trials do not begin and even if they never conclude. The Apex court has suggested that instead of money factors, other factors such as family ties, roots in the community, job security, membership for stable organizations etc should determine the grant of bail and in appropriate cases, the accused be released on his personal bond without monetary obligations.

Provisions as to bail bond are provided in chapter 33 of the Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C.). Section 440 of the Code clearly states that the amount so fixed by the court should take due regard to the circumstances of the case and should not be excessive. Sessions court and high courts are empowered under this section that they may direct the magistrate or the police officer to reduce the amount of the bail bond. 

Section 441 of the Code provides that the offender so released on bail or on his own bond, needs to sign a bond of such money as the police officer or the court deems necessary for ensuring his presence when at the time mentioned in the bond or until any time as directed by the court. Thus, bond provides for a surety of the presence of the offender to the court when called upon either to answer the charge or otherwise. In case where a minor is required to execute a bond, the police officer or the court in lieu may execute it only by surety or sureties only. Bond can contain conditions. Such conditions need to be mentioned in the bond itself while executing it. 

The court is empowered to commit the person released on bail to jail in two cases: if the surety or sureties are found to be insufficient or afterwards become insufficient; or of the surety or sureties apply before the court for the direction of discharge of either whole bond or any part as related to the applicants. The court, before committing such person to jail may ask him to find sufficient surety to grant him bail again.

When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court of officer may if in lieu of executing such bond.

The courts have to limit their power where there is only delay in payment to the bail or just because the indemnitor decides not to be responsible for the bail anymore. However, under Section 466 of the Code, the court can forfeit the bail bond on the ground that the condition of production of any property is not fulfilled or if the penalty is not paid without a sufficient cause. Forfeiture here means the retainment of the bond money even after the case is over. In the latter case, if even the surety does not come up for the offender rescue then, the offender may be imprisonment which may extend to 6 months. It also in the discretion of the court to remit any amount of penalty after recording the reasons for doing so and allow the part performance. Further, if the offence for which the offender has furnished security under Sections 106 or 117 or 360 of Cr.P.C. result into conviction of the offender which resultantly breach any condition (such as tampering evidence, commission of any offence, hamper investigation, runs away, commits any act of violence against police) of his bond, the judgement of conviction shall be used against him and his sureties unless the contrary to this proved. Such forfeiture of bond is appealable against as mentioned in Section 449 of the Code. On appellate court has the power to levy such amount due on a bond for appearance before such court.

But what happens after the bond is forfeited? On the event of death of the surety or his becoming insolvent or when any forfeiture is carried out in the above cases, the court shall order such person from whose security was demanded to furnish a fresh security bond failure of which the magistrate of first class may proceed as if there been a default in complying with the original order of bond.

Following any forfeiture of bond in case of any breach of the conditions mentioned in it, result into cancellation of such bond where the alleged offender thereafter cannot seek release on bail on his own bond except when the police officer or the court is of the view that no sufficient cause of failure can arise of the person bound by the bond to comply with its condition. 

Above were the provisions of bail bond but what actually happens after an order is passed in this regard? How to execute a bail bond after the passing of such order? 

The documents required for practical execution are:

  1. Bail application
  2. Id proof of the person executing it
  3. Id proof of the surety giving guarantee for the person
  4. Demand draft or cheque for the sum to be paid for the bond 
  5. Property papers in case a property is being charged for the purpose of furnishing the bail bond and tax return receipts.
  6. Declaration by the surety or sureties 
  7. Letter of undertaking 

The surety has to provide for an application of undertaking of the bail bond for the offender. He is also having to be certified that he is not insolvent and possess enough property to enable and stand surety. Besides he also has to declare as an indemnitor he has the knowledge of the conditions on which the bail bond is executed and that he provides for the surety of fulfilment of the conditions on behalf the offender. Thus, at the police station, after signing the requisite documents and paying the bond money, the execution of bail is completed.

Advantages

It’s easy to see the negatives when you’re involved in the bail bond process, whether you’re the one who needs to get out of jail or you’re the one who’s helping a loved one out. It’s a terrible situation that nobody wants to be in, so it’s pretty hard to see the light of the situation. A few advantages of issuing bail bonds are that most bail bond companies are open on a daily basis, in fact, on a 24-hour basis. As such, one can obtain bail bonds at any time they need them. With bail bonds, only 10% of the bail amount needs to be paid. The rest is going to be the job of bail bondsman to sort out. 

Most of the agents that run bail bond companies are professionals in court cases, prosecution, and bail and bond issues. As such, you will benefit from their vast experience and knowledge. You can pay bail bonds with some kind of payment plan and thus, ease your financial burden when you’ve been arrested. You pay only 10% of the full bail amount, leaving you with 90 percent to save or spend as much as you need. You can pay your small bail bond installments with cash, credit or debit and checks. A secure online payment portal is also available. There is no need to worry about going to the courthouse with a large amount of bail money. You will be assigned a professional and helpful bail agent. They’ll give you advice throughout the entire process and you’ll know exactly what’s going on. Like a lawyer, they want you to get the best result.

Disadvantages

The bail bond system is considered discriminatory by many, even in the legal profession, as it requires low-income defendants to stay in jail or scrap a 10% cash fee and the rest of the bail-in collateral even before they stand trial for any crime. According to a report conducted by prison policy organizations, about 536,000 people are being held in jail because they can’t afford bail or bail bondsman services. At the end of the process, you won’t get the bail bond money. The bondman accepts the 10% premiums as their fees. You can only take advantage of the bail bond company in the state where it is licensed. You may not benefit from this if you are not located within their jurisdiction.

Conclusion

In my opinion, whilst granting bail may also consider the socio-economic factors of the accused flight of the accused may also be taken into account and compassionate attitude towards them, the court may take into account certain conditions prior to granting bail which are the nature of the offense committed by the accused, which are considering, the nature of the offense charged and the apparent likelihood of conviction. It may also include any other factor indicating the relationship of the accused shall be the community or barring the risk of intentional failure to appear, the character and former criminal record of the defendant shall be the determination of the amount of bail in the present case. At the time of bail, the person does not have the right to live outside the jurisdiction of the court, he/she does not have the power to go abroad and in other states without the permission of the court, because you have to appear at the court and police station at any time and you have to pay a fixed deposit in court.

What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?

What are Small and Commercial Quantity of Narcotic Drugs under NDPS Act?

What is the Narcotic Drugs and Psychotropic Substances Act (NDPS) Act of 1985?

According to Section 2 of NDPS Act:

‘Commercial quantity’, in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the official gazette.

‘Small quantity’, in relation to Narcotic Drugs and Psychotropic Substances, means  any  quantity lesser than the quantity specified by the central government by notification in the Official Gazette.

Intermediate Quantity: that although the terminology “Intermediate Quantity”, is nowhere defined in the Act in definition part, but the terminology used is “lesser than commercial quantity but greater than small quantity”, when it comes to stipulating the punishment for the offences. 

Offences  under commercial quantities are non-bailable  U/S 37 NDPS Act 1985. However,  if  the court finds that the accused is not guilty of offence or is not likely to indulge in sale/  purchase of narcotic drugs, bail can be granted.

The punishment for many offences  under Sections 1523 of NDPS Act depends on the type and quantity of drugs involved—with three levels of punishments for small, Intermediate Quantity, i.e. quantity more than small and lesser than commercial quantity. 

The punishment prescribed for different quantities is as follows:

Where the contravention involves small quantities, with  rigorous  imprisonment  for  a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.

Where the contravention involves quantity lesser than commercial quantity but greater than small quantity,  with rigorous imprisonment for a term which may extend to ten  years and with fine which may extend to Rs. 1,00,000.

Where the contravention involves commercial quantity,  with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years  and shall also be liable to fine which shall not be less than Rs. 1,00,000 but which may extend to Rs. 2,00,000s.

Section 27 of NDPS Act: Punishment for Consumption of Any Narcotic Drug or Psychotropic Substance. 

Whoever, consumes any narcotic drug or psychotropic substance shall be punishable,- 

Where the narcotic drug or psychotropic substance consumed is cocaine, morphine, diacetyl-morphine or any other narcotic drug or any psychotropic substance as may be specified in this behalf by the central government by notification in  the  Official  Gazette, with rigorous imprisonment for a term which may extend to one year, or with fine which may extend to Rs. 20,000; or with both.

Where the narcotic drug or psychotropic substance consumed is other than those specified in or under clause (a), with imprisonment for a term which may extend to six months, or with fine which may extend to Rs. 10,000 or with both.

Brief legislative history

Vidhi Centre for Legal Policy issued a report entitled: ‘From Addict to Convict’: Working of the NDPS Act in Punjab’. The Report, which is based on a review of 13,350 cases from Courts trying NDPS cases in Punjab from 2013 to 2015, concludes that the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”) has not deterred drug use or drug trafficking and is in need of reform.

Possession for personal use v/s small quantity

The Report examines the law in relation to ‘small quantity’ and possession of drugs for personal use without appreciating the legislative history of section 27 of the NDPS Act.

The NDPS Act, as it stood in 1985, prescribed a minimum punishment of rigorous imprisonment for 10 years along with a fine of Rs 1 lakh for most offences with the exception of offences involving ganja and the cultivation of the cannabis plant, which attracted punishment upto 5 years imprisonment and fine of upto Rs 50,000.

The other exception was contained in section 27, which prescribed punishment of a maximum term of 6 months/1 year imprisonment (depending on the drug) or fine or both for consumption or illegal possession of any narcotic drug or psychotropic substance in ‘small quantity’, if the drug was proved to have been intended for personal consumption and not for sale or distribution. ‘Small quantity’ meant “such quantity as may be specified by the Central Government by notification in the Official Gazette.” The onus of proving that the drug was intended for personal consumption and not for sale or distribution lay on the accused person.

After the amendment in 1989, the Central Government issued fresh Notifications specifying the ‘small quantity’ of 220 narcotic drugs and psychotropic substances for the purposes of imposing lesser penalty under section 27 of the NDPS Act. The Report contains the recommendations of the Committee constituted by the Ministry of Health and Family Welfare for this purpose.

Though beneficent, section 27 was not used  

In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantities. Despite the possibility of imposing a lesser sentence under section 27 of the NDPS Act, persons caught with small quantities of drugs were still sentenced to 10 years imprisonment and hefty fines, as most of the time; the accused  the person was unable to prove that the drug was meant for personal consumption and not for sale.

In several such cases, it was the Supreme Court that ultimately provided relief to the accused appellant by invoking the provision on small quantity. For instance in Raju v State of Kerala, the Appellant was found with possession of 100 mg heroin worth Rs. 25. The Appellant’s plea that the drug was for personal use was rejected by the lower Courts on the ground that he showed no symptoms of withdrawal while he was in custody and not using heroin. The Supreme Court expressed doubt whether such a small quantity of heroin could have been intended for sale to make profit. Ultimately, the Court invoked section 27 of the NDPS Act and modified the punishment from 10 years imprisonment to 1 year on the basis that the heroin was meant for personal use, even though the same was not ‘proved’.

Another reason why drug users did not invoke the plea of personal use under section 27 of the NDPS Act was that it would amount to an admission of being in possession of drugs and risk certain conviction.

The requirement of ‘admitting’ to illicit drug-possession and ‘proving’ personal use made section 27 of the NDPS Act inaccessible. As a result, a large number of persons including those who use drugs languished in jail without the possibility of bail and/or lenient sentences.

It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities

It was in this backdrop that the NDPS (Amendment) Bill, 1998 was introduced and passed in 2001 to introduce graded quantities.

Object and import of the 2001 Amendments – far reaching

The NDPS (Amendment) Act of 2001 was a watershed moment, as Parliament, in a rare occasion, acknowledged the harmful consequences of harsh provisions of the NDPS Act and sought to correct course by introducing graded penalties, on the basis of whether the offence involved drugs in ‘small’, ‘intermediate’ or ‘commercial quantity’.

Though the proposed changes were criticized in Parliament for being ‘soft on drug offenders’, Shri Yashwant Sinha, the then Finance Minister who introduced the Amendment Bill, remained firm and saw through its adoption by the House.

The Report however, faults the 2001 Amendment by stating that that it resulted in treating “anyone caught with drugs, whether for self-use or for sale, as a criminal.” This criticism is misplaced.

The NDPS Act has always criminalized consumption and possession of drugs for personal use. Drug users did not become criminals as a result of the NDPS (Amendment) Act, 2001.

Doing away with ‘personal use’, extended protection of the law. The Legislature’s decision to do away with the requirement of proving possession for personal use for imposing lesser punishment and adopting the uniform criteria of ‘small quantity’ offences must be seen in the context of non-application of section 27, discussed above.

The 2001 Amendments were far-reaching in that they extended lenient sentencing  (imprisonment upto 6 months and/or fine of Rs 10,000) and diversion (under sections 39 and 64A) to ‘anyone’ caught with a small amount of drugs, irrespective of whether the drug was meant personal use or sale. This also helped drug users who may be involved in sale or supply of small quantities to peers.

Problem is that quantity alone determines penalty

 The real drawback of the NDPS Amendment Act, 2001 is that quantity was made the sole determinant for the severity of penal measures imposed under the law including   restrictions on bail, pre-trial detention and sentencing. Other factors such as the role and involvement of the accused in the crime – whether he is a mere carrier or controls the illicit trade are rendered irrelevant.  The Report fails to examine this aspect completely.

Bail under NDPS act when small, intermediate and commercial quantities are involved

Union of India v. Shiv Shanker Kesari (2007) 7 SCC 798 

Hon’ble Supreme Court has explained the approach that a Court should adopt in an application for bail under Section 37 of the NDPS ACT:

“The Court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty.

It is for the limited purpose essentially confined to the question of releasing the accused on bail that the Court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds.

But the Court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty.

Additionally, the Court has to record a finding that while on bail the accused is not likely to commit any offence and there should also exist some materials to come to such a conclusion.”

Therefore, even in commercial quantity if the courts are satisfied of the reasonable ground for believing that the accused is not guilty of such offences ( Non compliance of mandatory provisions of the NDPS Act i.e. Section 42 or Section 50, disclosure statement of co-accused or accused is not corroborated by any independent incriminating evidence etc) along with the condition that the accused will not likely to commit offence if he was granted bail (keeping into consideration the antecedents of the accused, his propensities and the nature and the manner in which he is alleged to have committed the offence), the courts can grant regular bail even in commercial quantity cases.

Punishment for Offences

The NDPS Act views drug offences very seriously and penalties are stiff. The quantum of sentence and fine varies with the offence. For many offences, the penalty depends on the quantity of drug involved – small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Small and Commercial quantities are notified for each drug.

Under NDPS Act, abetment, criminal conspiracy and even attempts to commit an offence attract the same punishment as the offence itself. Preparation to commit an offence attracts half the penalty. Repeat offences attract one and half times the penalty and in some cases death penalty. Since the penalties under this Act are very stiff, several procedural safeguards have been provided in the Act. Some immunities are also available under the Act. 

The penalties for various offences under the NDPS Act are as follows.

OFFENCES

PENALTIES

SECTIONS OF THE ACT.
Cultivation of opium, cannabis or coca plants without licenseRigorous imprisonment-up to 10 years + fine up to Rs.1 lakhOpium –  18(c) Cannabis – 20 Coca-16
Embezzlement of opium by licensed farmerRigorous imprisonment -10 to 20 years + fine Rs. 1 to 2 lakhs (regardless of the quantity)19
Production, manufacture, possession, sale, purchase, transport, import inter- state, export inter-state or use of narcotic drugs and psychotropic substancesSmall quantity – Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. More than small quantities but less than commercial quantities – Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity – Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 LakhsPrepared opium-17 Opium – 18 Cannabis – 20 Manufactured drugs or their preparations-21 Psychotropic substances -22
Import, export or transhipment of narcotic drugs and psychotropic substancesSame as above23
External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside IndiaRigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)24
Knowingly allowing one’s premises to be used for committing an offenceSame as for the offence25
Violations pertaining to controlled substances (precursors)Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs25A
Financing traffic and harboring offendersRigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs27A
Attempts, abetment and criminal conspiracySame as for the offenceAttempts-28 Abetment and criminal conspiracy – 29
Preparation to commit an offenceHalf the punishment for the offence30
Repeat offenceOne and half times the punishment for the offence. Death penalty in some cases.31 Death – 31A
Consumption of drugsCocaine, morphine, heroin – Rigorous imprisonment up to 1 year or fine up to Rs. 20,000 or both. Other drugs- Imprisonment up to 6 months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution27 Immunity – 64A
Punishment for violations not elsewhere specifiedImprisonment up to six months or fine or both32

 

SMALL AND COMMERCIAL QUANTITIES

For several offences under the NDPS Act, the punishment depends on whether the quantity of drug involved is small, is more than small but less than commercial or is commercial. Small and Commercial quantities for each drug have been notified.

 

The quantities for some common drugs are as follows

DrugSmall QuantityCommercial Quantity
Amphetamine2 grams50 grams
Buprenorphine1gram20 grams
Charas/HashishCharas/Hashish1 kg
Cocaine2 grams100 grams
Codeine10 grams1 kg
Diazepam20 grams500 grams
Ganja1 kg20 kg
Heroin5 grams250 grams
MDMA0.5 gram10 grams
Methamphetamine2 grams50 grams
Methaqualone20 grams500grams
Morphine5 grams250 grams
Poppy straw1 kg50 kg

 

 

India: Framing Of Charges: An Overview

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

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

Relevant Legal Provisions of Criminal Procedure Code (CrPC)

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

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

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

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

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

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

Basic Procedure regarding charge & its trial

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

Section 218 reads as Separate charges for distinct offences

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

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

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

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

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

Amendment/Alteration of charge

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

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

Withdrawal of remaining charges on conviction on one of several charges

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

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

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

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

Conclusion

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

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

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

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

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

Hierarchy of Criminal Trial and Criminal Trial in Indian Law

 

hierarchy of criminal courts in india.png(Note: This is an article written for layman having no knowledge of law. If you are a lawyer or a legal expert, please feel free to point out if there is any mistake in the article. If you want to give your inputs to make this better, please leave a comment at the bottom.)

Many a times we come across the term called criminal trial. In general parlance, we understand trial means that a person is facing a case in court of law. But generally people are not aware of the process of criminal trial in India. So here is the procedure for criminal trial that generally takes place in India.

Types of Criminal Trials

Before we proceed further, we must note that according to Criminal Procedure Code, criminal trial can be of tree types namely Trial in Warrant cases, Trial in Summon Cases and Summery Trial

Trial in Warrant Cases

Warrant cases are those cases in which an offence attracts a penalty of imprisonment for more than seven years and it includes offences punishable with death and life imprisonment. In such cases, the trial starts either by filing of FIR or by filing a complaint before a magistrate. And if the magistrate finds that the case relates to an offence carrying a punishment for more than two years, the case is sent to the sessions court for trial.

Section 193 of the Criminal Procedure Code clearly states that the session court can not take cognizance of any offence unless the case has been sent to it by a magistrate. The process of sending it to sessions court is generally called committing it to sessions court.

Trial in Summon Cases

A summon case is a case which is not a warrant case. So in simple words, those cases in which an offence is punishable with an imprisonment of less than two years is a summon case. In this case, one must understand that if a magistrate, after looking into the case, thinks that a case is not a summon case, he may convert it into a warrant case. In respect of summons cases, there is no need to frame a charge. The court gives substance of the accusation, which is called “notice”, to the accused when the person appears in pursuance to the summons.

Summary Trial

Case of offenses punishable with an imprisonment of not more than six months can be tried in a summary way. It is also to be noted that if the case has been tried in a summary way, a person can not be awarded a punishment of imprisonment for more than three months.

Pretrial stages

Registration of FIR

FIR stands for first information report which is lodged under section 154 of the Criminal Procedure Code. The FIR is only the basis information which is made available to the police when a cognizable offence takes place. FIR is the first stage from which a criminal case takes the birth.

Investigation

FIR in a criminal case leads to investigation in the case. Investigation leads an investigating officer to reach to a conclusion whether a chargesheet has to be filed or a closure report has to be filed in the case. If the investigation result in discovery of an offence, a chargesheet is filed, otherwise a closure report is filed before the concerned court.

Trial

If the investigating officer finds out that a case is fit for trial then he files a chargesheet in the case.

Filing of the charge sheet

The charge sheet is the brief summary of how an offence had been committed? What was the role of each person who was involved in the crime and the sections under which the investigating officer had charged all the accused. The charge sheet also contains the names of the person who were investigated but could not be charged due to lack of evidence in the eyes of the investigating agency. Filing of the charge sheet generally means that the investigation in the case is over and now the court has to consider the evidence collected by the investigating agency. It is to be noted, that if during the course of trial, some new facts come to the light, the agency may file additional charge sheets.

Framing of charges/Serving the Notice

if it’s a summon case, a simple notice is given and a response is sought from the accused. But in warrant cases, the court frames the charges.

Framing of charges mean that the court looks into the evidence collected by the investigating agency and applies its mind so as to what are the charges under which an accused has to be booked. For example, the police has filed a chargesheet accusing a person of murder under section 302, but the court deems it proper to charge the person for culpable homicide not amounting to murder under section 304. At this stage, if an accused pleads guilty then the court will apply its judicial mind and decide the punishment accordingly. And if the accused pleads not guilty, he is informed the charges under which he would be required to face the trial.

On the other hand, if the judge finds that no offence against an accused is made out, the accused is discharged from the case. The court has to apply its mind and record the reasons for discharging an accused.

Recording of the Prosecution Evidence

After the charges have been framed against an accused, the prosecution is required to produce  before the court, all the evidence collected by the investigating agency. It is to be noted that when the investigating agency produces the evidence before the court, the evidence has to be supplemented with the statement of the prosecution witnesses (PWs). The process of recording the statement of PWs is called Examination-in-Chief. The evidence which is brought before the court and which the court considers is called “Exhibit” .  The witnesses brought by the prosecution are expected to support the case presented by the prosecution and if they fail to do so, they are declared hostile and the prosecution may request the court not to rely on the statement of such a witness.

In case the witness supports the case of the prosecution, the defense is entitled to cross examine the witness so that they could find out the discrepancies in the statement of the witness concerned. If the defense succeeds in finding the discrepancies in the statement of the witnesses, they may ask the court not to rely on the statement of the said witness.

Statement of the accused

Section 313 of the Criminal Procedure code empowers the court to ask for an explanation from the accused if any. The basic idea is to give an opportunity of being heard to an accused an explain the facts and circumstances appearing in the evidence against him. Under this section, an accused shall not be administered an oath and the accused may refuse to answer the questions so asked. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him.

Evidence of Defense

After the statement of the accused is over, the court applies its mind and tries to find out if the accused has committed any offence or not. If the court reaches the conclusion that no offence has been committed by the accused, he is acquitted. It must be noted that while acquitting an accused, the judge is expected to give reasons for acquitting the accused.

In cases of accused not being acquitted by the court, the defense is given an opportunity to present any defense evidence in support of the accused. The defense can also produce its witnesses and the said witnesses are cross examined by the prosecution. In India, generally the defense does not provide defense evidence as the criminal justice system in India puts burden of proof on the prosecution to prove that a person is guilty of an offence beyond the reasonable doubt.

Final Arguments of both the sides

Once the defense evidence of the accused is over, the prosecution presents its final arguments. In final arguments, the prosecution generally sum up its case against the accused. After the final arguments of the prosecution are over, the defense also present its final arguments. After the final arguments of both the sides are over, the court generally reserve its judgment.

Delivery of Judgment

After application of mind, the judge delivers a final judgment holding an accused guilty of offence or acquitting him of the particular offence. If a person is acquitted, the prosecution is given time to file an appeal and if a person is convicted of a particular offence, then date is fixed for arguments on sentence.

Arguments on sentence

Once a person is convicted of an offence, both the sides present their arguments on what punishment should be awarded to an accused. This is generally done in cases which are punished with death or life imprisonment.

Judgment with punishment

After the arguments on sentence, the court finally decides what should be the punishment for the accused. While punishing a person, the courts consider various theories of punishment like reformative theory of punishment and deterrent theory of punishment. Court also considers the age, background and history of an accused and the judgment is pronounced accordingly.