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Pre-Trial Stage - Step By Step

NIKHIL THAKUR
27 Feb 2021 12:11 PM GMT
Pre-Trial Stage - Step By Step
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INTRODUCTION Under the criminal procedure, there are mainly 3 stages of criminal proceedings in India namely: The Pre-Trial Stage.The Trial Stage.The Post-Trial Stage. In order to understand the various stages of the Criminal Law Proceedings or Trial in India, it is important to understand what is Crime and Trial? Crime is a term which has evolved from the concept...

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INTRODUCTION

Under the criminal procedure, there are mainly 3 stages of criminal proceedings in India namely:

  1. The Pre-Trial Stage.
  2. The Trial Stage.
  3. The Post-Trial Stage.

In order to understand the various stages of the Criminal Law Proceedings or Trial in India, it is important to understand what is Crime and Trial?

Crime is a term which has evolved from the concept of law, and is regarded as an act/omission or violation of law against which there lies a punishment which is imposed upon the accused by the State and the said punishment may vary from direct injury to indirect injury.

Crime has been derived from a Latin term called "CRIMEN" which means to charge.

Many Criminologist propounded and expounded the terminology and meaning of Crime. But every such definition given by them was highly criticized due to the fact that they have left something in the definition or extended the scope which is usually not a part of the same. So, the conclusion is that it is difficult to explains the definition of Crime in a single line statement, as it is a Multi-dimensional term.

According to Oxford's Dictionary[i] the definition of Crime is:

  1. Activities that involve breaking the law
  2. An illegal act or activity that can be punished by law
  3. An act that you think is morally wrong or is a big mistake.

1. PRE-TRIAL STAGE

The phase is said to be Pre-trial stage once the criminal proceedings have initiated after the registration of FIR under the Section 154 of CRPC, 1973 which is followed till the filing of the Charge sheet once the magistrate is of the view that there lies a reasonable ground for initiating the Trial.

This stage plays a pivotal or critical role under the process of Justice because under this phase only majority of cases comes to an end informally through settlement between the parties therefore, these cases never come before the Court of Justice.

2. TRIAL

After the completion of the Pre- Trial Stage/ Proceedings, then starts a new phase called as Trial stage which is also known as the 2nd phase of the criminal proceedings.

Although, Trial is not defined or explained under the CRPC, 1973 but it is a process of determining the guilt or innocence of the person through adjudication by the competent court.

In Laymen language, trial refers to a TEST or legally it means "a formal gathering of the parties namely prosecution and the respondent in front of Hon'ble court, where both the parties put forth their claims, evidence, proofs and etc. and the court upon hearing the same and giving equal opportunities to both the parties to present their views come to a conclusion whether to acquit or convict".

In India, the Criminal Trial is divided into 3 parts namely: -

  1. Warrant case- where punishment for an offence is 7 year or more.
  2. Summon case- where punishment for an offence is 2 year or less.
  3. Summary Trial- where punishment for an offence is 6 month or less.

According to Section 26[ii] of the CRPC, 1973: the offences as mentioned under the Indian Penal Code, 1860 shall be triable by: -

  1. The High Court
  2. The Session Court and
  3. Any other court by which the offence is shown under the 1st schedule of the CRPC, 1973.

Further, if the case relates to rape and attracts the provision of Section 376[iii], 376A[iv], 376B<[v], 376C[vi] and 376D<[vii] of Indian Penal Code, 1860 in such situation the case shall be tried by a woman Judge



 3. POST TRIAL

Under this stage, generally lies following: -

  1. Appeal/ Revision,
  2. Hearing of quantum of punishment or
  3. Execution of sentence.

India has an overarching and elaborative Substantive and procedural laws dealing with the various stages of Criminal proceedings which are as:

  1. INDIAN PENAL CODE, 1860- Substantive Law
  2. INDIAN EVIDENCE ACT, 1872- Procedural Law
  3. CODE OF CRIMINAL PROCEDURE, 1973- Procedural Law

Code of Criminal Procedure (CRPC) is a Procedural Law and it deals with the regulation of criminal law procedure and its rules, it put forth the steps and provisions which are to be followed if the criminal case has been made out. Further, it provides the mechanism for proper imposition and working of Criminal Law in India.

While on the other hand, Indian Penal Code (IPC) is a Substantive Law and is a primary criminal law of India further it deals/ covers all the Crimes and their related punishments.

Indian Evidence Act is also a Procedural Law and it generally comes into play after the initiation of Trial, where it deals with Evidences production, Facts, Examination, Cross-Examination, Leading Questions and etc.

INITIATION OF CRIMINAL PROCEEDINGS

PRE-TRIAL STAGE

The criminal proceedings initiate with the commission of Crime which may be Cognizable or Non-Cognizable.


 


1. NON-COGNIZABLE OFFENCE

When an act or omission is executed and the offences for the same is Non-cognizable (arrest warrant mandatory to arrest), then there are two options available to aggrieved or one to accused.

  1. In case of the aggrieved, when non-cognizable case is made out: the aggrieved can file a private complaint to the Appropriate authority/ Magistrate of first class or second class as per the section 190 of the CRPC, 1973.
  2. And it is the duty of the Magistrate receiving the complaint to examine the same upon oath and shall reduce such in writing (Section 200 of CRPC).
  3. Further, if the complaint is filed before incompetent Magistrate the same can transfer it to proper court for consideration if the complaint is in writing. But, if it is not in writing Magistrate directs or tell the complainant regarding the appropriate court (Section 201 of CRPC).
  4. Moreover, if the magistrate upon receiving the complaint is of the opinion that the grounds stated are not sufficient enough to institute the proceedings then the magistrate is empowered to dismiss the complaint (Section 203 of CRPC).

If the magistrate has ordered for the dismissal of the complaint as per section 203 it does not preclude the complainant to file for the second complaint on same facts (exceptional case).[viii]

  1. In case of the Accused, when non-cognizable case is made out: the police release the accused upon Bail as a matter of right of the accused.
  2. And lastly, the Magistrate is empowered to order the Police authority to Register the FIR.

As per Section 204, if the magistrate has taken cognizance and is of the opinion that a case has been made out for the purpose of initiation of the proceedings and:

  • If the summon case has been made out: the magistrate is empowered to issue summons to the accused to call the attendance in physical.
  • If the warrant case has been made out: Magistrate is empowered to issue the warrant.

Upon arrest it the right of the arrested to file an application for the BAIL under section 436 of CRPC, 1973.

2. COGNIZABLE OFFENCE

When an act or omission is executed and the offences for the same is Cognizable (arrest warrant not mandatory to arrest), then there are two scenarios available, which are as:

  • Registration of FIR.
  • Investigation by Police
  • Arrest
  • Anticipatory Bail
  • Application for quashing the FIR before High Court.

  • Refusal to register FIR by the Police Authority.

Filing of complaint to the Magistrate or appropriate authority.

A complete flow chart has also been provided to better understand various stages of the criminal proceedings.

Step wise flow chart upon each proceeding has also been provided.




 WHEN FIR IS REGISTERED

1) IN CASE OF INVESTIGATION BY THE POLICE 

A)FIR

FIRST INFORMATION REPORT is a provision which is enshrined under the chapter 12, Section 154 of the CRPC, 1973. FIR is a document generally written by the police officer in-charge of the police station upon the request or Information received by the complainant/ informer.

Most importantly the FIR shall be reduced into writing. and there are some pre-requisite conditions for a valid FIR which are as:

  1. The FIR lodged shall be signed by the person who has given the information.
  2. And to record and enter the substance presented by the informer in the book by the police.

In case a woman is the informer, and she want to register the FIR under sections namely 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or 509 of the Indian Penal Code, 1860- for that purpose a women police officer shall be the in-charge for recording and writing the FIR.

IN CASE, THE POLICE IN CHARGE OF THE POLICE STATION REFUSES TO LODGE THE FIR, THE INFORMER AS A MATTER OF RIGHT AND USING SECTION 154(3) OF CRPC, 1973 MAY SEND THE INFORMATION ALONG WITH THE SUBSTANCE TO THE SUPERINTENDENT OF THE POLICE (SP).

FIR put the case under motion, it plays a pivotal role in criminal justice system, only after the lodging of the FIR the police is empowered to conduct investigation and it is the first information received by the police in relation to a case or an act or omission thus is known as FIRST INFORMATION REPORT.

B) INVESTIGATION BY THE POLICE

After the police in-charge of the police station lodge the FIR the police authority may execute the investigation procedure as per Section 156 of the CRPC, 1973.

Under the cognizable case, the police authority who execute the investigation are empowered enough to conduct the investigation procedure without the order from the court or magistrate.

And this power of the investigating officer to conduct the investigation cannot be at any time of the period of investigation or after be called in question on the premises that the officer was not empowered to do so (Section 156(2) of CRPC, 1973).

If no such investigation has taken place after the lodging of FIR, the magistrate using its power under Section 190 may order the Police to conduct the investigation (Section 156(3) of CRPC, 1973).

What all things can Investigation officer may conduct during his investigation:

  1. To proceed to the spot of crime (Section 157 of CRPC, 1973)
  2. To investigate the facts (Section 157 of CRPC, 1973)
  3. To investigate the circumstances (Section 157 of CRPC, 1973)
  4. Take measures for the discovery and arrest of the offender (Section 157 of CRPC, 1973)
  5. To call for attendance of the witnesses who in the opinion of the investigating officer is acquainted/ familiar with the facts and circumstances of the case (Section 160 of CRPC, 1973).
  6. To Examine the witnesses orally who in the opinion of the investigating officer is well acquainted with the facts and circumstances of the case. (Section 161 of CRPC, 1973).

Investigating officer has the sole duty or object to investigate the allegations and during the period of investigation the investigating officer shall take into consideration all those facts and circumstances whether against or in favor of one party or not.[ix]

  1. Collection of evidences.
  2. To conduct interrogation.
  3. May arrest the offender (to be dealt under arrest provision).
  4. To execute search of such substance or thing which in opinion of the investigating officer is highly important and is within his jurisdiction and for that purpose he shall give in writing the grounds for such a SEARCH (Section 165 of CRPC, 1973).

C) INVESTIGATION CONCLUSION

After the completion of Investigation, the investigating officer comes to 3 conclusions:

  1. UPON COMPLETION OF THE INVESTIGATION THE POLICE IS OF THE VIEW THAT THE CASE HAS BEEN MADE OUT.
  2. UPON COMPLETION OF THE INVESTIGATION THE POLICE IS OF THE VIEW THAT NO CASE HAS BEEN MADE OUT
  3. ARREST- to be dealt under the Arrest provision

According to the 1st provision, if after the completion of the investigation the police is of the opinion that there is no ground or sufficient or reasonable justification to forward the offender before the magistrate, it can release the offender as per the Section 169 of CRPC, 1973, and further submits the case closure report before the magistrate as final report under the Section 173 of CRPC, 1973.

According to the 2nd provision, After the completion of the investigation the police is of the opinion that there is sufficient ground or reasonable justification to constitute a case shall transfer the same to the magistrate who is empowered to take the cognizance (Section 170 of CRPC, 1973).

And soon after the completion of the investigation it is the responsibility of the investigating officer to submit the Police Report/ Charge Sheet before the magistrate under the Section 173 of CRPC, 1973.

Along with the Police report the Investigating officer shall also submit all the documents and the statements recorded under the Section 161 of CRPC, 1973 (Section 173(5) of CRPC, 1973).

Police Report is a conclusion of the investigating officer which is drawn on the basis of the materials, evidence collected throughout the investigation, and police report just form the basis for the court to take the cognizance.[x]

2) IN CASE OF ARREST BY THE POLICE

Upon registration of the FIR under Section 154 of CRPC, 1973 and the case involves the cognizable offence, the police has two options either:

  1. ARREST or
  2. INVESTIGATION.

Upon investigation the investigating officer is of the view/ opinion that there lies reasonable and strong ground to arrest the offender, in that case the police can arrest the offender without any warrant from the magistrate as per Section 41 of the CRPC, 1973. And the duty lies upon the police to communicate to the offender the ground of his arrest in case of arrest without warrant as per Section 50 of CRPC, 1973.

Arrest in specific words means "to take or keep in custody by authority of law"[xi]

It is clear from the Section 41 of the CRPC, 1973 that the police officer is competent enough to arrest the offender of cognizable offence without the permission or warrant of the magistrate if certain conditions are fulfilled[xii]: -

  1. The person commits cognizable offence in presence of the Police.
  2. Against whom the FIR has been registered for cognizable offence.
  3. Police is of the view that the offender has committed the cognizable offence.
  4. To prevent the person from committing further crime.
  5. For the purpose of investigation.
  6. To avoid tampering of the evidences.

After the Arrest the arrested has some rights namely

  1. The right to meet the Advocate of Choice.[xiii]
  2. The right to know the grounds of arrest and the right to Bail.[xiv]
  3. To inform the arrest of the person to his/ her friends, relatives and etc.[xv]

But, if the arrest is not essential or required as per the provisions of section 41 of CRPC, 1973, then it is the responsibility of the police authority to "issue notice" to the person against whom a complaint or FIR has been registered to appear before the Police when there is a strong, reasonable, certain and credible ground that the person has committed a Cognizable offence (Section 41A of CRPC, 1973).

Now upon receiving the Notice from the Police for appearance, the receiver is duty bound to follow the same and comply with the terms of the notice. Now two scenarios can be seen namely:

  1. That the person upon receiving the Notice comply with the same and appear before the police, in that case the person shall not be arrested unless the police give reasonable justification for the purpose of arrest. OR
  2. That the person upon receiving the Notice do not comply or fails or omit to follow the terms and condition of the same and attempt to hide his/ her identity in such a case the police may upon the order of the competent court, arrest such person.

  • HOW ARREST IS EXECUTED

Before arresting the person/ accused or against whom a FIR is registered, the Police officers who are going to make the arrest shall follow some procedure mandatorily (Section 41B of CRPC, 1973)[xvi] or shall follow the verdict of D.K BASU V. STATE OF WEST BENGAL AIR (1997):

  1. Police shall bear/ wear accurate, visible and clear identity of themselves.
  2. To prepare memorandum of arrest, which shall be attested by at least one witness and the same shall be counter signed by the person who is arrested.
  3. To make aware the arrested about his right to inform his/ her relative, family or friends about his arrest in case the Memorandum is not attested by the relative/ family/ friends.
  4. Time, Place and Venue of the Police Station shall be informed to arrestee's friend, relatives, and other within 8-12 Hours of arrest.
  5. A Diary for the same shall be prepared which contains the content namely: Place of Detention, the person informed of such arrest (friends, relatives, family) and the officer in whose custody such person is.
  6. To prepare a memo of Major and Minor injuries on the arrested upon the request of arrestee himself/ herself.
  7. Arrestee shall be examined by a professional Doctor every 48 hours.
  8. All the information as to arrest, arrestee, place of detention and police officer who made the arrest shall be displayed on every district and State High court concerned.

The officer who is making the arrest is empowered to touch or even confine the person who is going to be arrested (Section 46 of CROC, 1973). But in case, the person against whom the complaint was made and arrest is in process and the same attempt to evade or forcefully resist the arrest, the police officer in that case may use all those necessary means in order to stop the escape of the accused (Section 46(2) of CRPC, 1973). But, this power to the police to use any means to restrict the escape of the accused evading arrest do not further empower them to kill the person accused of an offence which is not punishable with Death or life imprisonment (Section 46(3) of CRPC, 1973).

THE POLICE OFFICER WHO IS MAKING THE ARREST SHALL NOT ARREST/ TOUCH/ CONFINE A WOMAN AGAINST WHOM THE COMPLAINT HAS BEEN MADE, for that purpose a Female Police Officer shall be the one to make the arrest of the woman accused.

CERTAIN GUIDELINES TO BE FOLLOWED BEFORE MAKING ARREST OF WOMAN:

  1. That no woman shall be arrested after the SUNSET and before the SUNRISE (Section 46(4) of the CRPC, 1973).
  2. The above rule is not an absolute one, as in exceptional cases if the arrest of the woman is essential then in such case female/ lady police officer shall prepare a report in writing and submit the same to the Judicial Magistrate of first class for the purpose of taking permission of arrest after Sunset or before Sunrise (Exception of Section 46(4) of the CRPC, 1973).

The legislative intent before arrest of a woman and provisions of Section 46(4) of CRPC, 1973 is that to protect, preserve, safeguard the modesty, respect, status, character of woman and to further protect them from any kind of insult, allegation or harassment by the police.

In a Landmark Supreme Court Judgement of SHEELA BARSE V. STATE OF MAHARASHTRA[xvii] the Supreme Court of India prescribed some guidelines in respect to protection of woman accused in Police Lock-Ups: -

  1. For woman there shall be a separate lock-up and which shall be headed by a Female Constable.
  2. For the purpose of interrogation of a woman, it shall be executed or conducted by a Female/ Woman police Constable/ Officer.
  3. Empowered the Session Judge (preferably Female Judge) to visit the jail premises and conduct a survey that the guidelines put forth by the Supreme Court of India in respect to protection of Woman are complied with and are strictly followed, and if the Judge found anything contrary or the guidelines not followed strictly the Judge may inform the same to the Commissioner of Police.

If the commissioner takes no action upon such information, then the session judge may communicate the same to Home Department, and if still no actions are taken then finally to approach High Court.

Upon arrest it is the obligation of the police officer to present the arrested before the Magistrate within 24 hours as per Section 57 of CRPC, 1973 but if the police authority is not satisfied with their investigation or has not completed the investigation within 24 hrs and want the offender to be in their custody they can seek permission from the Magistrate to take the offender in REMAND which shall not exceed the period of 15 days after presenting the offender before the magistrate as per Section 167 of CRPC, 1973.

After the Arrest the offender may be put under Police Custody or under the Judicial Custody (Judicial custody to take place only after the orders from the magistrate).

  • BAIL

Bail is the release of the accused on conditions that he will present himself/ herself before the court of law when required by the court itself.

After the arrest of the accused the accused as a matter of right can file an application for BAIL before the Magistrate under the Section 437 of CRPC, 1973.

If the magistrate rejected the Bail application under Section 437 of CRPC, 1973 the accused as matter of right can file the same application for Bail before the Sessions Court and if rejected by the Sessions then to High Court.[xviii]

If the applicant is rejected by both the Session and High Court he/ she can still file the Bail Application before the Supreme Court of India.

3) IN CASE OF ANTICIPATORY BAIL

Upon registration of the FIR offender is of the view that he may be arrested and has reasonable apprehension that he may get arrested, the offender can file an application before the Session Court of Anticipatory Bail as per the Section 438 of CRPC, 1973.

If the Session Court rejects the Anticipatory Bail of the offender the offender still has the right to file for Pre-arrest Bail application/ Anticipatory Bail before the High Court.

If the High court also rejects the Anticipatory Bail application then final attempt is before the Supreme Court of India where the Offender/ Accused file Anticipatory Bail before Supreme Court by way of Special Leave Petition invoking Article 136 of the Indian Constitution, 1950 as a matter of right and right against arrest and detention[xix] and using Article 21<[xx] of the same.

4) IN CASE OF QUASHING OF THE FIR UNDER THE SECTION 482 OF CRPC

After the registration or lodging of FIR as to cognizable offence, the person/ Accused against whom the FIR has been lodged. may as a matter of right can file an application before the High Court Invoking its Inherent Power under Section 482 of CRPC, 1973 regarding the Quashing of the FIR and request for stay of proceedings against him/ her.

The situation of quashing of the FIR arises when the accused is of the opinion that there are no substantive proof or ground for the FIR against him/ her.

And it is the discretion of the High Court whether to Stay the FIR or Quash the FIR.

WHEN REFUSAL TO REGISTER FIR BY THE POLICE AUTHORITY

If the aggrieved or compliant/ informer come before the police authority to lodge FIR and the Police in-charge of the police station refuses to enter or lodge the FIR, the Informer can use Section 154(3) and send the information along with the contents and substance of the same in writing to Superintendent of Police (SP). If the SP is satisfied with the information and draws an opinion that a cognizable case is made than he can by himself undergo for investigation or order the subordinate officer to investigate.

Moreover, other options available to the informer is that "the aggrieved/ Informer can file a private complaint to the Appropriate authority/ Magistrate of first class or second class as per the section 190 of the CRPC, 1973". (already dealt in previous pages) when the FIR is Refused to be registered. In that case, upon receiving the private complaint the Magistrate can either:



 

ENDNOTES

[i] Oxford Learner's Dictionaries.

[ii] Courts by which offences are Triable.

[iii] Rape

[iv] Punishment for causing death or resulting in persistent vegetative state of the victim.

[v] Sexual intercourse by husband upon his wife during separation.

[vi] Sexual intercourse by person in authority.

[vii]Gang Rape

[viii] Mohinder Singh v. State (Chandigarh Admn), (1997) 3 Crimes 142 (P&H)

[ix] Mohd. Jainal Aladin v. State of Assam, (1997)2 Crimes 660(Gau)

[x] Kaptan Singh v. State of Madhya Pradesh (1997) 4 Supreme 211.

[xi]Merriam Webster Dictionary

[xii] Section 41 of CRPC, 1973

[xiii] Section 41D of CRPC, 1973

[xiv] Section 50 of CRPC, 1973

[xv] Section 50A of CRPC, 1973

[xvi] Procedure of arrest and duties of officer making arrest

xvii] AIR 1883 378, 1983 SCR (2) 337

[xviii] Section 439 of CRPC, 1973: Special Power of the High Court or Session Regarding Bail.

[xix] Article 22 of the Indian Constitution, 1950.

[xx] Right to Life and Personal Liberty.PRE- TRIAL STAGE IN CRIMINAL LAW


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