At SSP Legal we believe in educating the client in order to enable the client to be on the same page as the lawyers themselves. Therefore, we have provided some basic notions in criminal law that every prospective client or a layman must equip himself about.
Click on the title to know more.
Offence is defined under section 2 of Code of Criminal Procedure (for short “CrPC”). An offence is any act or omission made punishable by any law for the time being in force.
Offences can be of the following types:
Cognizable Offence & Non Cognizable Offence
A cognizable offence means an offence for which a Police Officer may arrest without warrant. (as defined in Section 2(c) of CrPC)
A Non Cognizable offence means an offence for which a police officer has no authority to arrest without warrant (as defined in section 2(n) of CrPC)
Bailable & Non Bailable Offence
A Bailable offence is an offence for which the Accused has a right to get himself released on Bail in the event of an Arrest. The concerned Court cannot order the Accused person to be put in police or judicial custody if the offence is designated as “bailable offence” in CrPC. Lastly if the Accused persons offers surety (in other words, guarantee) that is acceptable to court the Accused person cannot be put in police or judicial custody.
As against bailable offence, a non bailable offence is one wherein the Accused person cannot be simply released on bail in the even of an Arrest as a matter of right. The Court cannot as a rule order the release of a man against whom there is prima facie evidence of murder. Serious offences like rape, murder are usually categorized as Non Bailabale offences.
Imp: Schedule I, Column 5 of CrPC lay down the offences which are Bailable & Non Bailabale.
Compoundable & Non Compoundable Offence
Compounding means settling with the Complainant or with the aggrieved party/First Informant. In other words, compoundable offences are offences that can be settled between the rival parties, involved in the particular criminal case.
Non Compoundable cases are cases which cannot be settled under the four corners of the law and in Court. Usually, serious offences like Murder are Non Compoundable Offences.
Imp: Compoundable Offences are listed in Section 320 CrPC. Offences which are specifically not listed in Section 320 CrPC cannot be settled under the four corners of law and are hence Non Compoundable.
Registration of First Information Report (F.I.R.)
Registration of an F.I.R. is usually the first step to set the criminal law in motion. It is, in a general scenario, first step that precedes commencement of an investigation. Before we understand the intricacies of an FIR, it is important to grasp the grassroots of an investigation. Following are the common items which form a part of the investigation:
- “if necessary- arrest the offenders (-Section 157(i), CrPC)
- Statements of Witness (-Section 154, CrPC)
- Panchnamas (in other words, Inquest)
- Collection of biological products (for example: blood, saliva, hair, nail clippings etc.)
- Collection of physical material (for example: knife, clothes, photographs etc.)
- Statements of the accused person leading to the discovery of an incriminating article (-Section 27, Evidence Act)
- Dying Declaration
- Statements of Expert Opinion (Section 45, Evidence Act)
- Medical Certificates
- Confession before a Magistrate (Section 164, CrPC)
- Voice Recording/ Video Recording
Imp: The afore mentioned list is not exhaustive. Every investigation is carried out differently depending on the facts and circumstances of the case. Hence, the afore mentioned list only gives an idea into the various steps in an investigation.
First Information Report
F.I.R. means information given to the Police that person, known or unknown has committed an offence. It is mandatorily signed by the Complainant/Informant. A copy of the FIR has to be given to the informant as a matter of right after it is read out to the Informant. An FIR is a first foundation of a prosecution case and is pivotal during the investigation and various stages of criminal procedure, like the trial, bail etc.
Imp: Courts have believed that the FIR is first, untainted unguided version of the offence and generally cannot be false.
Anticipatory Bail Application
Anticipatory Bail Application is an application, which is filed by any person when he/she apprehends arrest. In other words, a person has ‘reason to believe’ that he will be arrested on accusation of having committed an offence. The person has a remedy to approach the Court and file an application to pray for ‘release in the event of an arrest’.
Imp: The Jurisdiction to grant Anticipatory Bail is vested with the High Court of Bombay and the Learned Sessions Court.
An arrest is only a step in any investigation, as opposed to the general belief of it being a ‘punishment’. It is not mandatory for the police to arrest either in a Non Bailable or a Bailable offence. The Police have to take the Accused person to the Magistrate for remand after arrest as early as possible, within 24 hours of being arrested.
Every arrested person has a right to secure from the Police the copies of the Remand Application and the FIR to enable him to efficiently prepare and instantly argue the Application for Bail.
Imp: Any female of any age cannot be arrested between sunset and sunrise.
When an Accused person who is suspected of a commission of a crime is arrested by a police officer and is brought before the concerned Court, the Accused person can apply for Bail.
When a person is accused of a Bailable Offence and is brought before the Court after arrest, such person shall mandatorily be released on bail.
A non-bailable offence does not mean that in no case bail can be granted. It means that in non-bailable offences, bail is not a statutory right of the Accused person. In Non bailable offences, it is the discretion of the concerned Court to be exercised on a consideration of all the facts and circumstances of a given case.
Imp: The Hon’ble Supreme Court of India in the case of Prahlad Singh Bhati v. NCT, Delhi & Ors. has given the following guidelines for consideration of Bail:
“While granting the bail, the court has to keep in mind:
- The nature of accusations,
- The nature of evidence in support thereof,
- The severity of the punishment which conviction will entail,
- The character, behavior, means and standing of the accused,
- Circumstances which are peculiar to the accused,
- Reasonable possibility of securing the presence of the accused at the trial,
- Reasonable apprehension of the witness being tampered with,
- The larger interests of the public or state and,
- Similar other considerations
The word ‘trial’ is not defined. The essence of a trial is that it is a judicial proceeding par excellence. The hallmark of a judicial proceeding is that every witness who gives evidence is required to give evidence on oath. This needs to be contra distinguished immediately from the stage of investigation. During investigation, the police record statements and gather material. These statements are not on oath. The Police have no authority to give oath. Only a Judge or a Magistrate has authority to give oath.
Imp: A trial may be defined as adjudication of guilt or innocence of an accused in accordance with criminal law, i.e. Criminal Procedure Code and the Indian Evidence Act.
Summons Case and Warrants Case
In Criminal law, any given case can be of two types:-
- Summons Case or,
- Warrants Case
Generally, a Summons Case is one wherein the maximum punishment will be less than two years.
Warrants Case is one wherein an offence would be punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
Imp: The procedural difference between a summons case and a warrant case is very technical although very similar at the same time.