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Stages in Criminal Proceedings in India

By: Muskan Sharma

The Criminal Law regime in India is regulated by the following statutes:

  1. The Indian Penal Code, 1860 (hereinafter referred to as “IPC”)
  2. The Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”)
  3. The Indian Evidence Act, 1872 (hereinafter referred to as “Evidence Act”)

The IPC provides for classification between different offences. It also provides the punishment to be awarded to a person convicted of any offence. The CrPC provides for the procedure to be followed during the proceedings to conclude the case. The Evidence Act provides what evidence is admissible and relevant during the trial.

However, studying the IPC, the CrPC, and the Evidence Act separately will not make one understand the gist of Criminal Law. It is pertinent to study these three legislations in their entirety to know about different stages in criminal proceedings in India.

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Following are the different stages in criminal proceedings in India:

  1. Commission of an Offence

Criminal proceedings take place only when an offence is committed. This stage is surely not a part of the trial. However, only the commission of an offence can lead to criminal proceedings.

  1. Information to the Police
  2. Information as to the Commission of a Cognizable Offence

After the commission of an offence, it is pertinent that the Police receive information about it. If the offence is a cognizable offence, then the Police have to act according to Section 154 of the CrPC. Section 154 (1) of the CrPC provides that information relating to the commission of a cognizable offence shall be reduced in writing by the officer-in-charge of the concerned Police Station and must be read over to the informant. The person, who provided such information, must sign on it.

Section 154 (2) provides that a copy of such FIR shall be given free of cost to the informant. In case the officer-in-charge of a Police Station refuses to record such information, the concerned person may then write the substance of such information and post it to the Superintendent of the Police. If the Superintendent of the Police is satisfied that such information discloses the commission of a cognizable offence, he shall either investigate the case himself or direct an officer in subordination to him, to investigate such a case.

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  1. Information as to the Commission of a Non-Cognizable Offence

If in case, an officer-in-charge of a Police station receives information about the commission of a non-cognizable offence, he must prepare NCR i.e. Non-Cognizable Report which contains all the information of such offence reduced into writing. In Non-cognizable offences, the Police cannot arrest a person without a warrant. However, if a person is accused of committing a cognizable offence, the police can arrest him even without a warrant.

If the information provided to the officer-in-charge of the Police station discloses that the act of the accused person is partly a cognizable offence and partly a non-cognizable offence, then it will be considered as a Cognizable Offence.

  1. Investigation by Police

Chapter XII of the CrPC provides for the investigation of an offence by the Police. Section 156 of the CrPC empowers a police officer to investigate a cognizable case without the order of a Magistrate. Further, Section 156 (2) provides that the no proceedings handled by a police officer in such a case cannot be called into question on the ground that the officer was not empowered to investigate the case under this section. A Magistrate may order the investigation of such a case under Section 190, CrPC.

Section 157 of the CrPC provides for the procedure to be followed for investigation. It states that when the officer-in-charge of a Police Station is empowered under Section 156, he must send a report to the Magistrate empowered to take cognizance of such offence on a report by the Police and either proceed in person or depute any of his subordinate officers to investigate the facts and circumstances of the case. However, provisos to Section 157 (1) provide that an officer-in-charge must refrain from investigating the case if the offence is not of a serious nature or if there is no sufficient ground for entering into the investigation. The concerned officer-in-charge must state reasons for not complying or not investigating the case in his report, as provided by Section 157 (2) of the CrPC.

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The purpose behind the conduct of the investigation by the Police is to obtain the following:

  1. Evidence
  2. Attendance of Witnesses
  3. Interrogation statement of the accused
  4. Statement of Witnesses
  5. Expert Opinion

However, the procedure to be followed in the course of the investigation may be different in special categories of cases or if the procedure cannot be completed in 24 hours.

  1. Anticipatory Bail

Anticipatory bail is a direction from the Court to release a person on bail even before the arrest. In Balachand Jain v. State of MP, the Court has described anticipatory bail as ‘bail in anticipation of arrest’.

In Gurbaksh Singh Sibbia v. State of Punjab, the Supreme Court observed that the court must be satisfied that the person invoking Section 438 (1) of the CrPC shall have reasons to believe that he will be arrested for non-bailable offence and his belief must be based on reasonable grounds.

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The Court must provide anticipatory bail after taking into consideration the following factors:

  1. The Gravity of the alleged offence.
  2. Antecedents of the person applying for anticipatory bail i.e. whether he has been previously convicted of a cognizable offence.
  3. If the accused person can flee from justice.
  4. Where the accusations are backed by the intention of causing injury or humiliation to the accused.

The Court may also impose the following conditions to be fulfilled by the accused when seeking an order of anticipatory bail:

  1. He must be available for interrogation by the police officer, as and when required.
  2. He must not, directly or indirectly, induce, give threats, or promise to any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or to any police officer.
  3. He must not leave India without the permission of the Court.
  4. Arrest of the Accused

The Police officer may arrest the accused person without the warrant if the offence is of cognizable nature. However, the concerned police officer must obtain the approval of the Magistrate in the form of a warrant if the alleged offence is of non-cognizable nature.

  1. Production of the Accused to the Magistrate

After the accused person is arrested, the concerned police officer must produce the accused before the Magistrate within 24 hours of the arrest as stated in Article 22(2) of the Indian Constitution. Hence, an arrested person has a fundamental right to be produced before the Magistrate within 24 hours of arrest.

  1. Remand

If the accused person is arrested and the investigation cannot be completed within 24 hours, then such person is to be produced before a Magistrate for extension of Police or Magisterial Custody.

  1. Closure Report

A closure report is filed when upon the investigation, it is discovered that no offence can be made out. Also, the accused person must be released under Section 169 of the CrPC in such cases.

  1. Filing of Charge sheet

However, a Charge sheet must be filed according to Section 173 of the CrPC if, upon the investigation, it is discovered that an offence appears to have been committed. The Charge sheet must contain all the charges to be leveled against the accused person.

  1. Cognizance by Magistrate

After a charge sheet is filed under Section 173 of the CrPC, a Magistrate is empowered to take cognizance of such offence under Section 190 of the CrPC. Section 190 (2) further provides that a Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance of any such offence within his competence to try.

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  1. Service of Summon/Warrant

The Court then serves to summon or warrant to the accused person to present himself before the Court. A Summon or Warrant is issued with the aim to compel the appearance of accused persons under Chapter VI of the CrPC.

Section 61 of the CrPC provides that Summon issued by a Court shall be reduced to writing in duplicate signed by the presiding officer or any such officer prescribed by the High Court, and it must have the seal of the court.

Section 70 of the CrPC describes the form of a warrant of arrest. Every warrant issued shall be in writing, signed by the presiding officer of such Court and must bear the seal of the Court. Such warrant shall remain in force until cancelled by the Court or until executed.

  1. Bail Application

A Bail Application is filed before the Court under Form No. 45 of the Second Schedule to release the accused person from custody. The accused person can be granted bail only if he furnishes bond and sureties before the Court.

The procedure to obtain bail is different in bailable and non-bailable offences.

  1. Bail in Bailable offences

Section 436 of the CrPC provides for the procedure to obtain bail in bailable offences. Section 436 provides that in case of bailable offences, the accused person can be released on bail. However, such officer or Court may, if deem it reasonable to do so, instead of taking bail, discharge him by executing a bond without sureties for his appearance.

Section 436 (2) further provides that if a person does not comply with any of the provisions of the bail bond regarding the time and place of his attendance, the Court is empowered to refuse to release him on bail. Such refusal shall be considered without prejudice to the powers of the Court to call upon any person bound by the bond to pay penalty under Section 446.

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Further, Section 436A has been inserted in the CrPC in 2005 for the undertrial prisoners. It says that if a person has already completed half of the maximum sentence to be awarded for the alleged offence, then he must be released on personal bond with or without surety.

  1. Bail in Non-bailable offences

Where it is alleged that the accused person has committed a non-bailable offence, he may be released on bail.

The Court may refuse to grant the bail in the following cases:

  1. There are reasonable grounds to believe that he is guilty of an offence punishable with death or imprisonment for life.
  2. The alleged offence is cognizable and the accused person is previously convicted of an offence punishable with death, imprisonment for life, imprisonment for seven years or more, or has been convicted twice or thrice of a non-bailable and cognizable offence. However, the Court may release such an accused person on bail if it is just and proper to do so for any other reason. It has been further provided that identification by witnesses is no sufficient ground for refusal to grant bail if the accused person is otherwise entitled to be released on bail.

Also, the Court may not refuse bail to a person below sixteen years of age, a woman, sick or infirm person.

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Section 437(2) further provides that if there are no reasonable grounds to believe that the accused has committed a non-bailable offence but sufficient grounds for further inquiry into his guilt are there, the accused may be released on bail, subject to Section 446A, or execution of a bond by him without sureties for his appearance.

Section 437 (3) says that a person accused of an offence punishable with imprisonment which may extend to seven years or more in Chapter VI, Chapter XVI, or Chapter XVII of the IPC or abetment of, or conspiracy or attempt to commit such offence, the Court may impose any condition while releasing the person on bail.

  1. Plea of Guilty/Not Guilty

The Court, before commencing the trial, must ask the accused person whether he wishes to plead guilty or not guilty. The Court may convict the person on his plea of guilty under Section 253, CrPC. This provision has been inserted in the Criminal Law regime so the speedy delivery of justice can be made effective.

  1. Commencement of Trial

The Trial of a case is said to be commenced when it is posted for the examination of witnesses. A Trial may be classified into the following categories:

  1. Sessions Trial
  2. Warrant Trial
  3. Summons Trial
  4. Summary Trial
  5. Stages of Evidence of Prosecution

The prosecution is required to prove the guilt of the accused through the examination of witnesses and documentary evidence. It involves Examination of Chief, Cross-examination, and re-examination. This whole cycle is known as ‘examination-in-chief’.

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After this, the Court records the statement of the accused person under Section 313 of the CrPC. The accused is given the opportunity of being heard and explain the facts and circumstances of the case. The defence is then, asked to present any evidence before the Court that may support the acquittal of the accused person. Usually, the burden of proof is on the prosecution, the defence is rarely asked to present evidence before the Court.

  1. Final Arguments

After examining all the evidence and other relevant facts and circumstances, the court decides upon what questions are to be addressed during the final arguments of the case. The Public Prosecutor and the Defence Counsel both present their arguments to the Court on the disputed issues.

  1. Judgment

After hearing final arguments from both sides, the Court has to deliver judgment addressing if the accused is convicted or acquitted, the quantum of punishment if convicted, grounds of conviction/acquittal, etc.

The Judgment must be clear and precise. It should state the facts of the case, arguments presented by the Counsel from both sides, acquittal/conviction of the accused, and grounds for the same.

  1. Appeal

After the judgment is delivered by the Court, the aggrieved party may file for an appeal. Before the appellate court, arguments of both sides are placed. The Appellate Court, then decides if the judgment rendered by the subordinate court had any merits or not.

  1. Revision

The aggrieved party may alternatively file a Revision petition to prevent a faulty judgment from being enforced.

  1. Execution

The last stage is the execution of the orders of the Court. The stage of execution is when all the remedies of appeal, revision, etc. are exhausted and the decision is final.

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