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Criminal Trial & Procedure
A brief summary of what happens when a criminal case is registered against an individual and the procedures:
Introduction
This article is a brief outline of how and what happens once a crime takes place and how the investigation machinery leads the investigation under Cr.P.C and ultimately rests its case before the Judiciary in order to give the accused a chance of fair trial and to prove his innocence for the crime taken place.
Investigation
For investigation to kick start, there should be some crime, any act which is punishable under the Indian Penal Code or any other legal statute as passed by the Indian Parliament shall be termed as Crime.
Crime/Offence
For any investigation to begin crime has to be committed. Crime/offence can be a cognizable crime i.e Bailable or Non- Cognizable crime i.e. Non-bailable in nature. Indian Penal Code (herein after to be referred as IPC) has divided the types of Crimes/offences in several chapters. The classification of an offence so as to whether it is a cognizable offence, non-cognizable offence, bailable or non- bailable and compoundable or non-compoundable – is listed in the First Schedule.
Cognizable Offence
Most of such offences are non-bailable and are of a much more serious nature than that of the Non-cognizable offence. Cognizable offence is a case in which a police officer may, in accordance with the First Schedule or under any other law, arrest without warrant. As soon as it is intimated to the local police that any kind of cognizable offence has been committed in its local jurisdiction, the police are duty bound to register (First Information Report) U/s 154 of Cr.P.C; this FIR can be lodged at the instance of anyone who has the knowledge that the cognizable/Non-bailable offence has taken place. The police are at liberty to get their preliminary investigation done prior to registration of an FIR in few cases.
Non-Cognizable offence
Any offence which is not a cognizable offence is a Non- Cognizable offence. Non-cognizable offence is a case in which a police officer has no authority to arrest without a Warrant form the Magistrate; the police needs to take order u/s 155(2) of Cr.P.C from the Magistrate. Once such order is received form the Magistrate the police may treat the said case the same way as it is an Cognizable offence.
Section 156(3) Cr.P.C – If the police refuse on any point to register an offence, the aggrieved person can approach the Ld. Magistrate by making an application u/s 156(3) Cr.P.C in order to present its case before the Magistrate so that a direction can be given by the Magistrate to the police authorities to take cognizance of the case. Before approaching the Magistrate, the aggrieved person will have to comply with 154(3) i.e. to inform the S.P/DCP about the complaint and request him to take cognizance of the offence as the Police officials subordinate to him are refusing to do so.
Stage of Evidence
Once FIR has been registered by the police authorities, the evidence is mainly into 3 parts:
- Recording of Statements u/s 161 of Cr.P.C
- Collecting of Evidence in form of Documents and others
- Recording of confessions or statements u/s 164 Cr.P.C before the Magistrate.
Recording of 164 Statement
Is it mandatory for the police/Magistrate to record Statements u/s 164? It is not mandatory for the investigating agency to record 164 Statements in all the cases but as per the amendment to Sub-clause 5 i.e. 164(5A), in any case where offence is committed u/s 354, 376 or 509 of the IPC, the Magistrate has to record the statement, u/s 164, of the person against whom the offence has been committed.
Stage of Section 173 (Final Report )
After all the three states of evidence are over, the Police has to file, u/s 173, their Final Report before the Magistrate, which is in turn the conclusion of the investigation and the evidence collected by the Investigation Agency. If the Police Authorities, after investigation find that there is deficient evidence against the accused, it may file a report u/s 169 of Cr.P.C and release the accused on executing a Bond and undertaking for appearing as and when required before the Magistrate empowered to take cognizance.
The final Report will be of two kinds-
- Closure Report
- Charge Sheet /Final report
Closure Report
It simply means that there is no evidence to prove that the alleged offence has been committed by an accused under question. Once the closer report is filed by the Police, the Magistrate may:
- Accept the report and close the case.
- Direct the investigation agency to further investigate the matter, if they have left any lacunae in the investigation
- Or issue notice to the First Informant as he is the only person who can challenge the closer report as per the guidelines issued by the Hon’ble SC in the case of Bhagwan Singh vs. Commissioner of Police.
- In some cases, the Magistrate may directly reject the closer report and take cognizance of the case u/s 190 of Cr.P.C and issue summons u/s 204 of Cr.P.C to the accused and direct his appearance before the magistrate.
Charge Sheet
It contains elements of the offence in a prescribed form, and it also contains the complete investigation of the Police authorities and the charges slapped against the accused. It includes the facts in brief, the copy of the FIR, all the statements recorded u/s 161, 164 Panchnamas, list of witnesses, list of seizure and other documental evidence collected by the investigation agency during the investigation. On filing of the Charge sheet, the magistrate may issue summons/warrant to the accused named in the charge sheet and direct him to appear before him, on the date he so directs.
In cases where the offence is punishable with imprisonment of less than 10 years, the final report u/s 173 shall be filed by the investigation agency within 60 day,s and in cases where the offence recorded to have been committed is punishable with imprisonment for more than 10 years, life imprisonment or death penalty, the investigation agency, in such matters, have to file their report within 90 days from the date of the FIR being registered.
This part ends the Course of Investigation and the part of Trial starts. The police Aathorities have to hand over the case to the Prosecutor/Special Prosecutor, if so appointed, and act has per his instructions during the course of Trial.
Commitment of the Case u/s 209
Once the Charge Sheet is filed by the investigation agency before the Magistrate, irrespective of whether it is sessions triable case or not, the Magistrate will take cognizance of the case u/s 190 (1)(b) and issue warrant u/s 204 to the accused to secure his presence before him and further can direct the investigation agency to hand over the chargesheet to the accused u/s 207of Cr.P.C. If the offences are sessions trial then the Magistrate will commit the case and send all the papers and proceedings of the case to the District and Session court for the trial to begin.
Sessions Trial
Chapter XVII deals with the procedure of Sessions Trial. Section 225 to 233 deal, pointwise, how the trial has to be conducted by the Public Prosecutor.
Opening of the case
The Prosecutor appointed will have to open the case by explaining to the Court about the charges slapped on the accused in the Charge Sheet.
Discharge u/s 227 and Framing of Charges u/s 228 The accused, at any time before framing of charges against him, can file an Application u/s 227 for discharging him from the charges leveled against him in the charge sheet. The accused has to put, before the court, that all the charges leveled against him are false and are not strong or sufficient enough to proceed against him in the trial.
If the said application u/s 227 is rejected by the Court, then the court may go ahead and frame charges against the accused u/s 228, the hon’ble Court at this stage can even add or delete any charge if the material available on record does not support the said charge. The Hon’ble Court shall read out the charges to the accused and ask if he agrees with the said charges and pleads guilty for the same.
Conviction of Plea of Guilty u/s 229
If at this stage of trial, the accused pleads guilty of comitting the offence and agrees to the charges framed, he may be directly convicted for those charges u/s 229 of Cr.P.C. If the accused pleads not guilty, then the judge will direct to proceed with the Trial and the accused will have to face the Trial.
Stage of Evidence of Prosecution - Sections 230 and 231 of Cr.P.C
The stage of evidence comprises of examination of witnesses of the both sides, this includes Examination of Chief, Cross Examination and Re-Examination. Under the Indian Evidence Act, the Examination of Witnesses are covered Under Chapter X.
Statement u/s 313 of the accused
After the evidence of the Prosecution, if completed, the Judge will direct the appearance of the accused in the witness box and record his statement u/s 313 of Cr.P.C. At this time, it is the first time the court hears the accused and puts to him in question and answer form, all the testimony of the witnesses who have testified against him. Oath is not administered during the recording of the statement nor can anything recorded against the accused, be used against him in at the later stage.
Defense Witness
At this stage after recording of the Statement u/s 313 of Cr.P.C, the Judge may allow the accused, through his Advocate, to produce Defense Witness, if any, in order to get the said witness examined.
Final Arguments / Verdict / Quantum of Punishment / Judgment
Frequently Asked Questions
Please consult a lawyer at the earliest. They will advise you on the next steps to be taken if you are not in police custody/ have been arrested.
Yes, however there are various factors which are taken into consideration before the grant of bail/anticipatory bail. Some of the factors are witness tampering, previous criminal cases/record, flight risk, evidence on record, etc.
Bail can be applied before the magistrate. There is also an appeal provision before the sessions court, high court & the supreme court.
Before the jurisdictional sessions court or directly before the high court.
You will have to adhere to the bail conditions passed by the Hon’ble Court such as executing sureties, co-operating with the investigation, etc
Yes, it can be modified. However, this is simply the judges discretion whether they want to modify the conditions of bail.
Yes. It can be relaxed If you have been complying with the bail conditions originally imposed.
Yes. Given the appropriate facts and circumstances of the case, an extension of 2-4 weeks can be granted by the court to comply with the bail conditions imposed.
The bail granted shall automatically stand cancelled and the police will have powers to take you into judicial custody.
Yes. However, there needs to be change in circumstances in order to obtain a positive order from the Hon’ble court.
In short, when there is no “prima facie” case made out against the accused. The FIR/charge sheet will most certainly be quashed.
No. An application to dispense with your presence can be presented. However, you need to be present during three stages such as 207, 313 & judgement day.
Yes. Opting against the same could lead to severe ramifications such as a conviction and jail time.
In short, based on the facts, circumstances and evidence placed on record. The defense evidence, witnesses, cross examination also play a key part on the courts decision. In all cases, the prosecution has to prove “beyond reasonable doubt” that the accused is guilty of the offenses as alleged by the prosecution.
Yes, you are completely protected by attorney-client privilege.
Depends on the offense committed, the gravity of the offence & the work involved.