Indian Criminal Laws: A brief Insight
India has a well-established statutory, administrative and judicial framework for criminal trials. Indian Penal laws are primarily governed by 3 Acts:
- The Code of Criminal Procedure, 1973 (Cr.P.C.);
- The Indian Penal Code, 1960 (IPC);
- The Indian Evidence Act, 1872 (IEA).
Cr.P.C. is a comprehensive and exhaustive procedural law for conducting a criminal trial in India, including the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, process of criminal trial, method of conviction, and the rights of the accused for a fair trial. The procedure for a criminal trial in India, is primarily, except as otherwise provided, governed by The Code of Criminal Procedure, 1973 (Cr.P.C.).
IPC is the primary penal law of India, which is applicable to all offences, except as may be provided under any other law in India.
IEA is a detailed treaty on the law of “evidence”, which can be tendered in trial, manner of production of the evidence in trial, and the evidentry value, which can be attached to such evidence. IEA also deals with the judicial presumptions, expert and scientific evidence.
There are certain other laws, which have been enacted to deal with criminality in special circumstances. It is also important to note that India follows the adversarial system, where generally the onus of proof is on the State (Prosecution) to prove the case against the accused, and until and unless the allegation against the accused are proved beyond reasonable doubt, the accused is presumed to be innocent. In certain exceptional cases, which may relate to terrorism, etc., the onus of proof has been put on the accused person, who claims to be not guilty. India has a highly developed criminal jurisprudence and prosecution system, supported by judicial precedents, however, there may be certain issues or concerns relating to the execution of the same by Police and implementation by Judiciary.
The courts in India, particularly High Courts and Supreme Court have been proactively guarding the rights of the accused. Even Article 21 of the Constitution of India has been interpreted in a highly dynamic manner to protect the rights, life and liberty of the citizens, by also incorporating the principles of natural justice.
To appreciate the Indian criminal law, it is necessary to understand following terminologies:
- Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authorized to give bail to the accused at the time of arrest or detention.
- Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.
- Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and dependent on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.
- Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.
- Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.
- F.I.R (First Information Report), is formal recordal of a complaint, by police in case of commission of a cognizable offence, and can be considered as a first step in the process of the investigation of a cognizable offence by Police.
- NOTE: Whether an offence/case is bailable or non-bailable, and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC. The Table II of the 1st Schedule of Cr.P.C., gives a general guideline to determine whether an offence is bailable, non-bailable, cognizable or non-cognizable.
The criminal investigation process and prosecution mechanism in India can be initiated in any of the following ways:
a. On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.]
b. In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the enquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence.
c. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C.
WHAT IS BAIL?
The term bail is originated from an old French verb bailer which means to give or to deliver. Bail refers to the provisional release of the accused in a criminal case in which the court is yet to announce the judgment. The term bail means the security that is deposited in order to secure the release of the accused.
TYPES OF BAIL IN INDIA
Depending upon the stage of the criminal matter, there are commonly three types of bail in India:
Regular bail- A regular bail is generally granted to a person who has been arrested or is in police or judicial custody. A bail application can be filed for grant of regular bail under section 437 and 439 of CrPC.
Interim bail- This type of bail is granted for a short period of time and it is granted before the hearing for the grant of regular bail or anticipatory bail.
Anticipatory bail- Anticipatory bail is granted under section 438 Cr.P.C, either by the Sessions Court or High Court. An application for the grant of anticipatory bail can be filed by a person who apprehends that he may be arrested by the police for a non- bailable offence.
CONDITIONS FOR GRANT OF BAIL IN BAILABLE OFFENCES:
Section 436 of Code of Criminal Procedure, 1973 lays down that a person accused of bailable offence under IPC can be granted bail. Conditions for bail in bailable offence are:
- There are sufficient reasons to believe that the accused has not committed the offence.
- There is sufficient reason to conduct further enquiry in the matter.
- The person is not accused of any offence punishable with death, life imprisonment or imprisonment up to 10 years.
CONDITIONS FOR GRANT OF BAIL IN NON-BAILABLE OFFENCES:
Section 437 of Code of Criminal Procedure, 1973 lays down that the accused does not have the right to apply for bail in non-bailable offences. It is discretion of the court to grant bail in case of non-bailable offences. Conditions for bail in non- bailable offence are:
- If the accused is a woman or a child, bail can be granted in a non-bailable offence.
- If there is lack of evidence then bail in non-Bailable offences can be granted.
- If there is delay in lodging FIR by the complainant, bail may be granted.
- If the accused is gravely sick.
CANCELLATION OF BAIL:
Court has the power to cancel the bail even at a later stage. This power is laid upon the court under section 437(5) and 439(2) of the CrPC. The court can cancel the bail granted by it and give directions to the police officer to arrest the person and keep in police custody.
LEGAL PROVISIONS IN INDIA FOR QUASHING OF CRIMINAL PROCEEDINGS:
Code of Criminal Procedure (hereinafter referred to as Code/CrPC), 1973 has laid out the provisions for quashing of criminal proceedings.
Section 482 Cr.P.C. says,
"Saving of inherent powers of High Court : Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
The decisions of High Courts in this regard, ought to be guided by following twin objectives, as laid down in Narinder Singh v. State of Punjab (2014) 6 SCC 466:
- Prevent abuse of the process of court.
- Secure the ends of justice.
RULES GOVERNING THE PETITIONS PRAYING FOR QUASHING OF CRIMINAL PROCEEDINGS:
Section 482 Cr.P.C, which deals with the power of the High Court to quash criminal proceedings, does not mention the contours of the jurisdiction of the High Court, but what exactly constitutes the inherent powers of court which are the subject matter of various decisions of the Hon’ble Supreme Court. In that sense, the Code is not specific as it does not lay out the grounds on which the foundations of the inherent power of court lay.
Nevertheless, there are some cases which have got wide acceptance in the legal fraternity and hence, are used as the minor guiding principles (landmark cases being the major ones) governing the cases of quashing of criminal proceedings.
Some of the guidelines are:
In order to determine the veracity of a prayer for quashing the criminal proceedings raised by an accused under Section 482 of the CrPC, the following questions have to be analyzed by the High Court:
- Whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
- Whether the material relied upon by the accused is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
- Whether the material relied upon by the accused, has not been refuted by the prosecution / complainant; and / or the material is such, that it cannot be justifiably refuted by the prosecution / complainant?
- Whether proceeding with the trial would result in an abuse of process of the court and hence, would not serve the ends of justice?
- Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised;
a) To secure the ends of justice.
b) To prevent an abuse of the process of any court.
Quashing of criminal proceedings in matrimonial cases, it has been held in the case of Geeta Mehrotra v. State of Uttar Pradesh (17 Oct, 2012)by the Supreme Court of India that making general allegations against husband without any conclusive proof is ground enough to quash criminal proceedings instituted under Section 498- A of IPC.
How Aneja and Aneja helps in matters related with Crimes?
Aneja & Aneja is fully equipped to handle filing of appropriate legal proceedings for criminal matters across New Delhi and NCR.
The services handled by Aneja & Aneja shall include, though not limited to, the following aspects:
- Study of the facts and documents pertaining to the criminal matter.
- Counseling, advising and formulation of strategy on the matter in dispute.
- Preparing and filing of the Criminal Petitions or any other appropriate legal proceedings before the competent Courts of jurisdiction.
- Representing clients before the competent Court(s) in proceedings related to aforesaid aspects.
We possess strong capabilities in securing your legal rights in the society and litigating appropriate criminal proceedings across New Delhi and NCR.