While most people recognize that the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) lists out all the criminal offences, only a handful are aware that the IPC must necessarily be read along with the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”). The CrPC is what outlines the different procedures that must be followed before, during, and after initiating a criminal complaint.
The procedure to initiate proceedings varies largely in terms of the kind of offence that has been committed - cognizable or non-cognizable. A cognizable offence has been defined as one in which the accused may be arrested without a warrant, whereas a non-cognizable offence requires a police officer to arrest the person only after obtaining a warrant from the Magistrate. There is no straitjacket formula on how a criminal process begins. There are certain standard procedures the order of which might alter depending on the case, but the elements of a trial remain common to both kinds of cases regardless. After the trial, the judiciary then determines the liability of the different persons involved - the stage that most of us are familiar with.
In case a non-cognizable offence has been committed, such as a case of criminal defamation, it becomes a question of filing a private criminal complaint before the Magistrate directly. If the Magistrate so desires, he may order the police to investigate if he or she finds the nature of the case to be one requiring the State’s resources.
This vastly differs from filing a First Information Report (hereinafter referred to as “FIR”) as per Section 154 of the CrPC before a police station when a cognizable offence has been committed. For example, in case a murder or a rape has been committed, or grievous hurt caused, the first step would be to file a FIR before the Station House Officer (hereinafter referred to as “SHO”) of the local police station within the vicinity in which the crime was committed. While this step seems rather obvious, we’ve seen in the past and continue to witness how many of these officers refuse to register FIRs and send the complainants away. In the landmark case of Lalita Kumari v. State of UP, the Supreme Court had held that no preliminary investigation would be required while reporting a cognizable offence, except in certain cases such as those of medical negligence and corruption. Oftentimes, the reason provided the police officers for not taking down that FIR is that the crime was not committed within their jurisdiction. This was later resolved with the introductions of a “Zero FIR”. This mechanism allows officers to take the complaint down regardless of where it was committed and compels them to transfer it to the appropriate police station.
In the last couple of days, major developments in the media pertaining to the use and abuse of police power has compelled me to write this with a sense of urgency.
The most crucial step to initiate a criminal proceeding in case of a cognizable offence is to file an FIR before the police station. Once this has been done, the officer is empowered to either undertake investigation on his own or can command his subordinate to do so.
When can someone be arrested?
If the officer witnesses the commission of a cognizable offence, or otherwise receives any “reasonable complaint”, or “credible information”, or has a “reasonable suspicion” against any individual of having committed a cognizable offence with imprisonment for a term of seven years or lesser, the said officer is empowered under Section 41(1)(a) or 41(1)(b) to make an arrest. In these cases, he or she can only make the arrest if they have a reason to believe that the person so arrested has committed the offence.
As per 41(b)(ii)(a) to (e) of the CrPC, they may arrest in order to prevent the said person from tampering with any further investigation, procuring their presence for trial if they fear that they may abscond, etc. In case the crime prescribes imprisonment for a term greater than 7 years, the officer can arrest the accused as per Section 41 (ba) of the CrPC.
In some cases, the officer may find that the reasons mentioned under Section 41(1) do not apply. For instance, the person against whom the complaint has been made may not be one likely to abscond and has, for instance, cooperated with the police in previous criminal complaints. In these cases, the officer may send out a “Notice of Appearance” to the accused under Section 41A. If the person complies with the notice, he cannot be arrested unless after duly recording reasons for doing so the police officer decides to later arrest him or her. In case of non-compliance, arrest will ensue.
Section 41B talks about some indispensable rules while arresting someone. The officers must wear a visible identification of his or her name. They must then prepare a memorandum of arrest (or an arrest memo) that shall be attested by at least one witness - who is either a member of the accused’s family or locality - and must be countersigned by the accused.
Section 46 deals with how arrests ought to be made. Sub-clause (4) was added later on and stipulates that women cannot be arrested after sunset and before sunrise.
Therefore, the kind of arrest that the media tends to talk about is that in case of a cognizable offence. This then raises an alarm when we study the arrest of Prashant Kanaujia, the journalist who was arrested for his tweets regarding Yogi Adityanath. The arrest was downright illegal. The police officers suo moto filed the FIR on grounds of “criminal defamation”, which is a non-cognizable offence, and Section 66 of the Information Technology Act, 2000 which does not apply in this case. While the initial stage of filing the complaint is not to test the veracity of these claims, filing an FIR on false grounds invokes the wrath of various other legal provisions that can be used to challenge them, such as Section 482 of the CrPC. This allows the accused to approach the High Court regarding the wrongful proceedings from the very beginning, and to try and get the FIR quashed on those very grounds before proceeding further.
Rights of the Accused
In his book Human Rights and the Indian Police, Dr. S Krishnamurthy talks about the basic principles of human rights and individual liberties that have evolved to incorporate the rights of the accused. The accused has the right to be informed of his or her grounds of arrest forthwith. If the arrest is made without a warrant in a bailable case, the accused has the right to be released on bail after furnishing sureties.
The accused has a right to legal counsel. In case the person is indigent and doesn’t have the means to procure the services on his or her own, the State is bound to do so by granting legal aid. Most fundamentally, the accused is protected from ex-post facto laws, i.e. they can only be tried for breaches of laws already in place at the time of making the accusation. The law prohibits “retrospective imposition of criminality”. The right against double jeopardy protects the accused from not being convicted of the same offence more than once. This means that the same person cannot be punished based on the same facts. It does not mean that a person who murders more than one person cannot be convicted again if he commits the same crime. If the person is either convicted or acquitted of any charge, the case remains closed. It is only when fresh evidence against him or her is furnished that new set of facts is constituted.
The accused is also protected under the right against self-incrimination which means that he cannot be compelled to be a witness in his own cause. The right of silence and the right of privacy of the accused is yet to evolve completely in India, as we do not follow the Miranda Rights based approach as in the United States of America.
Apart from the type of arrest contemplated under Section 41 and others, in case of a non-cognizable offence, the police can issue a “summons” to the accused to appear before them, or a court can issue a warrant of arrest to the police officer to arrest the accused.
Once the arrest has been completed, or the summons been sent, or a warrant been issued, the police can search the person and/or the property of the arrested and others involved and seize any and all property that they may possess. Investigation continues and the police is empowered under Section 161 to take down statements made by witnesses. These statements are not to be recorded by the police and therefore cannot be used during trial as evidence. They are strictly stated in order to proceed with the investigation and to aid the police with the same. Even if the accused were to admit his guilt while making these statements, the law protects him or her because the statements will not be good on their own. The reason for this is that police interrogations are often not made without the threat or use of force, which may compel the witnesses to say more than they would have liked to.
What was also laid down in the case of Nandini Satpathy v. PL Dani was that the accused has no right to remain silent during these interrogations and ought to answer all of the questions fired at them. This was upheld in the case of Ajmal Kasab v. State of Maharashtra. If the police wish to use these witness statements for trial, they must get the statements recorded as per Section 164. This means that the witnesses will now be making their statements before the Magistrate directly, who must ensure that there is no police-person in the room while this is happening. These statements once recorded can be used during trial. All of these statements, along with the original FIR and the other documents produced throughout the investigation will eventually be filed before the Magistrate as the “chargesheet”. Once accepted, it is legally said to be the taking of cognizance by the Magistrate. Following this is where the trial then commences.
We must not forget that one of the most crucial aspects of individual liberties is to grant bail to the accused when the courts deem it fit. An individual has the right to seek bail to be released from the arrest. In India, the Bail Bond System is the default system that one can avail if they’ve committed a “bailable” offence, as per Section 436.
One may file as many bail applications as possible either before or during the trial. However, the Court decides for the very first time on whether or not to grant bail when the accused is brought before the Magistrate under Section 56 and Section 57 of the Code immediately after the arrest. Article 22(3) of the Constitution of India mandates that the accused arrested be brought before a Magistrate within 24 hours of his or her arrest – another indispensable human right.
In case the accused has committed a non-bailable offence, he or she is still eligible under Section 437 of the CrPC to receive bail. In theory, a court must not consider whether or not to grant bail based on the past history of the accused or the seriousness of the crime. Bail can be granted so long as the court is certain that the person released will not abscond, comply with the notices served to him or her, not repeat any offence or tamper with evidence if released, and not threaten or intimidate other witnesses of the case. However, the Code itself mentions gravity and past conduct as grounds for not granting bail, which flies in the face of justice and curtails individual freedoms based on pre-conceived notions. Section 437(2) of the CrPC permits the court to grant bail in a case where they have reason to believe that the person did not commit the offence, but still need to probe into his or her guilt. The CrPC also allows a person to seek “Anticipatory Bail” under Section 438, wherein a person can seek protection from arrest even prior to it on grounds mentioned in the code.
The accused and the witnesses are expected to be present at trial. Ordinarily, trials ought to take place on a day-to-day basis, but the reality in India is unfortunately not the same. Cases are delayed for years on end. Once the trial fully takes place, the judgment is delivered. A sentencing hearing will follow to decide the extent of the accused’s liability and the term of his or her punishment. However, the legal system adds a certain level of flexibility and the decision is not set in stone as either party is empowered to file an appeal against the said decision.
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About the Author
Kamya Vishwanath is a first year law student at the Jindal Global Law School. She is extremely passionate about her political opinions and reads extensively about the subject. A strong advocate of mental health and combating stigma around the same, she has interned with the Spastics Society of Karnataka and the Center for Law and Policy Research and continues to write passionately about mental illness. A strong believer in the philosophy of individualism, Kamya aims to leave behind a lasting legacy in every task she undertakes.