Criminal Procedure Code - Lecture Notes PDF

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CRIMINAL PROCEDURE CODEUNIT – IINTRODUCTORY AND PRE – TRIAL PROCESS1 Meaning of procedureThe organization of the functionaries under the Code; their duties, functions and powers; First Information Report, Complaint; Arrest; Types of trial and Features of a fair trial.INTRODUCTIONLaws are usually cla...

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CRIMINAL PROCEDURE CODE UNIT – I INTRODUCTORY AND PRE – TRIAL PROCESS

1.1 Meaning of procedure The organization of the functionaries under the Code; their duties, functions and powers; First Information Report, Complaint; Arrest; Types of trial and Features of a fair trial.

INTRODUCTION Laws are usually classified into two categories; 1) Substantive Law; 2) Procedural law. Substantive law determines the rights and liabilities of the parties, while Procedural law lays down the practice and procedure enforcement of those rights and liabilities. So far as administration of criminal justice is concerned, the Indian Penal Code is the substantive law. It defines various offences and also prescribes punishment for them. Likewise, Dowry Prohibition Act, Prevention of Food Adulteration Act, Prevention of Corruption Act etc., is substantive laws. The Code of Criminal Procedure, on the other hand, like Evidence Act, Limitation Act, etc, is procedural law.

Historical Background Prior to 1882, there was uniform Code of Criminal Procedure for the whole of British India. For the first time in 1882, the Code of Criminal Procedure was enacted for the whole of India in the presidency towns and in the mofussil, which was replaced by the Code of Criminal Procedure, 1898. The Code of 1898 underwent radical changes by Acts of 1923 and 1955. The final comprehensive report was submitted by the Law Commission in 1969 making detailed recommendations. The recommendations of the Commission were examined carefully by the Government in the light of the following basic and fundamental considerations; (i) An accused person should get a fair trial in accordance with the accepted principles of natural justice; 1

(ii) (iii)

Every effect should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to the society; The procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.

Object : As stated above, the Code of Criminal procedure lays down procedure for administration and enforcement of substantive criminal law. It is a procedural law and like all procedural laws, is designed to further the ends of justice and not to frustrate them by encouraging endless technicalities. The principal object of the Code is to ensure that an accused gets full and fair trial in accordance with the well established principles of law that accord with our notions of natural justice. Importance of procedural law : Though substantive laws determine rights and liabilities of parties and are very important, value and use of procedural laws cannot be under-estimated. Criminal justice system can be made effective by enacting proper substantive laws and by implementing them efficiently. The efficacy of substantive law largely depends upon effective implementation of procedural law. Unless the procedural law is simple, expeditious and inexpensive, substantive laws, however good efficient, are bound to fail in achieving its goal.

1.2 The Functionaries under the Code : The functionaries exercising powers and discharging duties under the Criminal Procedure Code are : a) The police, b) The prosecutors, c) Defence Counsels, d) Magistrates, and judges of higher courts, e) The Prison authorities and Correctional Services Personnel

Amongst these the role of the magistrate and courts is pivotal; the other functionaries are, in a way, accessories only. It is there, expedient to consider first, the constitution and hierarchy of the criminal courts, their territorial jurisdictions. 2

Territorial Divisions {Sec. 1 (2), ; 7 and 8} India, States, Sessions Divisions, Districts, Sub-divisions.

1.3 Powers of Criminal Courts : Section 26 to 35 deals with jurisdiction and powers of criminal courts offences under the I P C can be tried by the High Court or the Court of Session or any other court having jurisdiction to try them. Section 28 and 29 prescribe the extent of punishment which can be imposed by various criminal courts. Power to impose different sentence by different courts may be summarized thus: Powers of Various Criminal Courts Sl. Court Maximum sentence which can be imposed No 1 Supreme Court Any sentence authorized by law 2 High Court Any sentence authorized by law 3 Sessions Judge, Additional Sessions Any sentence authorized by law, Sentence of

4 5 6 7 8 9 10

Judge

death, however, is subject to confirmation by

Assistant Sessions Judge Chief Judicial Chief Metropolitan Magistrate Judicial Magistrate Class-I

High Court. Imprisonment up to ten years and or fine. Imprisonment up to ten years and or fine. Imprisonment up to ten years and or fine. Imprisonment up to three years and or fine

Metropolitan Magistrate

up to Rs. 10,000/Imprisonment up to three years and or fine

Judicial Magistrate Class-II

up to Rs. 10,000/Imprisonment up to one years and or fine up

Special Judicial Magistrate

to Rs. 5,000/Imprisonment up to three years and or fine up to Rs. 10,000/-

COMPLAINT 1.4 Meaning :

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Complaint means any allegation made orally or in writing to a magistrate, with a view to his taking action under the Code, that some person whether known to unknown has committed an offence. Complaint, however, does not include a police report. Essentials : A complaint in a criminal case is like a plaint in a civil suit. Filing of complaint is one of the important modes by which a magistrate can take cognizance of an offence. Before an accusation can be called a complaint. The following requirements must be satisfied; (i) (ii) (iii) (iv)

It may be made by a magistrate; It must be made with a view that the magistrate may take action on it; It must contain an allegation that some person, known or unknown, has committed an offence; It must not be a police report.

Ambit and Scope: The expression “complaint” is very wide. It includes even an oral allegation. What is necessary is that there must be an allegation prima facie disclosing commission of offence by some person. It is not necessary to set out details of the offence or mentioning of a particular section of the Indian Penal Code. It is sufficient if the necessary facts disclosing an offence have been stated in the complaint. Prosecution and trial against an accused cannot be allowed to be defeated merely because there is a technical defect in the complaint. The allegation must have been made with a view to the magistrate taking action under the Code. An express request to that effect is not necessary. But a mere statement made before the magistrate by way of information without inducing him to take any action is not sufficient and therefore, is not a complaint. Who may file : Crime is a wrong against the society at large and, therefore, as a general rule; any person having knowledge of the commission of an offence may set the law in motion by a complaint. There is nothing in the Code requiring complaint to be made by person injured. Aggrieved or affected. The word “complainant” has not been defined in the Code. But a

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complainant can be said to be a person who makes an allegation to a magistrate, which amounts to a complaint. Form : The Code does not prescribe a particular form in which a complaint should be made. All that is necessary is that there must be an allegation before a magistrate prima facie disclosing commission of offence with necessary facts for his to take action. It is the substance and not the form of the complaint that has to be considered. Thus, the heading of the complaint, use of wrong form, quoting of wrong section, etc., are not material. Thus, a letter or telegram addressed to a magistrate may constitute a complaint if other ingredients are satisfied. Police report : The expression “police report” has been defined as “a report forwarded by a police officer to a magistrate under Sec. 173(2) of the Code. It is the report forwarded by the police to a magistrate in the prescribed form containing the particulars requited by Sec. 173(2) (a) and (g) after completion of investigation. Limitation : Since a criminal offence is an injury against the society, mere delay in filing a complaint does not afford a good ground for its dismissal, if no limitation is prescribed for filing the complaint.

1.5 Distinction Between Complaint and First Information Report (FIR): A complaint must be distinguished from the first information report: 1) In a complaint, the allegations are made to a magistrate, whereas the first information report is given to police; 2) A complaint may relate to a cognizable or non-cognizable offence, while a first information report must relate to a cognizable offence on the face of it; 3) A magistrate takes cognizance on a complaint made to him, whereas a police officer starts investigation on first information report;

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4) A compliant does not include police report, but first information report may be given by anybody including a police officer; Complainant : Complainant is a one who applies to the court for legal redress. He is a person who makes formal accusation in court of law. It is he who moves magisterial court by making certain allegations against an accused who has infringed law so that actions may be taken against him.

1.6

Arrest of Persons And Rights of Arrested Persons :

Introduction : Section 41 to 60 of the Code of Criminal Procedure deals with arrest with arrest of persons and rights of arrested persons. As seen above, as far as possible a trial must be held in a presence of the accused. The trial before the magistrate commences ‘when the accused appears, or is brought before him’. The attendance of the accused before the magistrate can be secured by his arrest. Arrest is, therefore, the first step in the process of investigation and trial. Arrest of a person can be affected in two ways : (1) with a warrant; (2) without a warrant.

Arrest Meaning : The word “arrest” has not been defined in the Code. Simply speaking, arrest means taking of a person in custody under legal authority. Arrest is a restraint of the liberty of a person in order to compel obedience to the order of the Court of Justice or to prevent the commission of a crime or to ensure that a person charged with or suspected of a crime may be forthcoming to answer it. The terms ‘arrest’ and ‘custody’ are not synonymous. In every arrest, there is custody, but vice versa is not true. Custody may or may not amount to arrest. The arrest starts with an arrester taking a person in his custody and continues until such person is released. By who arrest can be made? Arrest can be made 1) by a police officer; 2) by a magistrate; 6

3) by a private person; Lets us consider a relevant provisions in detail. 1) By Police Officer : Sec. 41 and 42 confer very wide powers on a police officer to arrest any person without a warrant and without an order from a magistrate. These provisions however, are not exhaustive and an arrest can be made under other special laws: Indian Railway Act, Income-tax Act, Prevention Detention Laws etc., A police officer may arrest without warrant – a) Any person concerned in a cognizable offence; b) Any person in possession of any implement of house-breaking; c) Any proclaimed offender; d) Any person in possession of anything reasonably suspected to be stolen property; e) Any person obstructing a police officer in the execution of his duty or escaping or attempting to escape from lawful custody; f) Any deserter from the Armed Forces; g) Any person concerned in any offence committed outside India, which if committed in India world have been punishable as an offence; h) Any habitual robber, house-breaker, thief, forger, receiver of stolen property, protector or harbored of thieves or a habitual offender; i) Any desperate or dangerous person; j) Any person whose suspension or remission of sentence has been cancelled by the Government; k) Any person for whose arrest a requisition has been received; l) Any person concealing his presence with a view to commit a cognizable offence; Though Sec.41 of the code confers very wide powers on the police of arresting person without warrant, they can be exercised strictly in accordance with law. Sec.42 authorizes a police officer to arrest any person without warrant only if such person:7

(a) 1) Commits a non-cognizable offence in the presence of a police officer; 2) Is accused of committing such offence; (b) On demand by such officer A magistrate may arrest without warrant – (i) (ii)

Any person who commits an offence in his presence; Any person for whose arrest he is competent to issue a warrant.

2) By Magistrate :

(i) (ii)

A magistrate may arrest without warrant – Any person who commits an offence in his presence; Any person for whose arrest he is competent to issue a warrant.

Section 44(1) says that the magistrate is empowered to arrest a person who has committed an offence in his presence and also to commit his to custody.

Section 44(2) empowers the magistrate only to arrest a person who is suspected of having committed an offence. The power to commit the offender to custody is not conferred. 3) By Private Person : A private person can arrest without warrant(i) (ii)

Any person who commits a non-bailable and cognizable offence in his presence; Any person who is a proclaimed offender;

The principle underlying this section is that “for the sake of preservation of the peace, any individual who sees it broken may restrain the liberty of his whom he sees breaking it, so long as his conduct shows that the public peace is likely to be end angered by his acts”. The right of arrest by a private person under Sec. 43 must be exercised simultaneously with the commission of the offence. Against, the provision is merely enabling and does not make it obligatory on the part of a private person to make an arrest without warrant. Arrest of Woman: 8

Sec 46(4) as inserted by the Code Criminal Procedure (Amendment) Act, 2005 prohibits arrest of a woman after sun set and before sun rise except in unavoidable circumstances. In exceptional cases, where a woman is to be arrested after sun set and before sun rise, the provision requires such arrest by a woman police officer after obtaining prior permission in writing of the judicial officer of the first class where the offence is committed or arrest is to be made. How Arrest can be made? “Arrest consists of actual seizure or touching of a person’s body with a view to his detention. The pronouncing of words of arrest is not an arrest unless the person sought to be arrested submits to the process and goes with the arresting officer”. Section 46(1) states that in making an arrest the police officer or other person shall actually touch or confine the body of the person to be arrested, unless there is a submission to the custody by word or action by the person to be arrested. The essential elements of arrest are that:(i) (ii)

There must be an intention to arrest under the authority of law; It must be accompanied by seizure or detention of a person in the manner known to and recognized by law.

Rights of Arrested Persons: Apart from imposing certain duties on the police officers making arrest of a person, the Code confers specific rights by making express provisions in favour of a person who is arrested. Let us consider them in detail : a) Right to know grounds: A person arrested has right to know the grounds for his arrest. Every police officer or other person arresting any person shall have to communicate such grounds to the person arrested. Article 22 of the Constitution also confers a fundamental right on every arrested person to be informed of the grounds of his arrest or detention. b) Right to Bail : If a person is an accused in a bailable offence, he should be informed by a police officer arresting him of his right to be enlarged on bail. c) Rights to be produced before magistrate or court: 9

Any person arrested must be taken a magistrate or before a court without unnecessary delay and should not be detained for more than twenty four hours. d) Rights to inform relative/friend: An arrested person had right to have his relative or friend being informed about the fact time and place of arrest. e) Right to consult lawyer: Article 22 (1) confers on every person who is arrested the right to consult a legal practitioner of his own choice. He is also entitled to free legal aid if he is an indigent person and is not in a position to engage an advocate. f) Right to be examined by doctor : Sec. 54 confers right on a person arrested to have him medically examined to enable him to defend and protect himself effectively. Again, medical examination of a female should be made by a lady doctor or under her supervision.

1.7 First Information Report (FIR): Sec. 154 to 176 deals with “Information to the police and their powers to investigate”, a) Information to the police regarding the commission of an offence; b) investigation by the police; we will consider the information received by the police as to commission of a cognizable offence (Sec. 154); non-cognizable offence (Sec.155) and where the death of a person takes place in suspicious circumstances(Sec. 174); Meaning: As stated above, the first information report is not defined in the Code. However, it can be said to be information given to the police first in point of time relating to a cognizable offence. This is one of the modes by which criminal law is put in motion. It is the earliest report made to the police officer with a view to his taking action and on the basis of which investigation has commenced. Section 154 reads as under (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to 10

writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. Object : The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the commission of a cognizable offence with a view to taking suitable steps for tracing and bringing to books the offender. Another equally important object of recording of the first information report is to obtain early information of the alleged offence from the informant and to put into writing the statement before his memory fails or before he get time and opportunity to embellish it. The information is very important for the accused also inasmuch as he is entitled to know what where the facts stated immediately after the occurrence to connect him with the crime. Nature and Scope: The first information report is the first version of commission of a cognizable offence and on the basis of which investigation is commenced by the police. It is not an encyclopedia of the entire case and it is, therefore, not necessary that such information such be given by an eye-witness. It may be hearsay also. Such information may come from any quarter, even from anonymous sources. It need not be in writing or against a named person. Therefore, a telephonic message if it discloses a cognizable offence may constitute first information report. Likewise a anonymous telephone or oral message which does not clearly specify a cognizable offence but simply states that a person is lying injured or dead cannot be termed as first information report. Whether particular information would constitute FIR or not is a question of fact. Requirements : A first information report must fulfill the followi...