For an individual implicated in a criminal case, the provisions proffered by Indian criminal law are contained under three successive sections of the CrPC (Criminal Procedure Code), 1973. These are – Section 437, Section 438, and Section 439. Each section assumes pertinence in specified scenarios, as necessitated by nature, or severity, of the crime claiming implication.
In the instance of a non-bailable offense, the grant of bail is subject to the discretion of the courts of law. Section 438 of CrPC deals with the provision for anticipatory bail wherein a person can seek the court’s approval for bail prior to the possibility of an arrest gaining reality on the grounds of anticipation of implication in a criminal case pertaining to a non-bailable offense.
Post arrest, the provisions of Section 438 loose relevance. In such a scenario, the provision for bail, and the subsequent modalities, are outlined in Sections 437 and Section 439 of the CrPC.
The individual accused, and arrested in a criminal case is afforded the right to a comprehensive, quick, and unbiased trial. Criminal law holds that the delayed justice amounts to a denial of the same.
The individual being arrested is afforded the following rights –
- Right to the knowledge of the grounds for the arrest.
- Right to inform their family and acquaintances of the event of the arrest.
- Right to a lawyer for the representation of their interests in the court of law.
- Right to free legal aid in the case of an inability, on the part of the accused, to avail legal counsel.
- Right to seek release from arrest through bail.
- Right to remain silent.
- Right to be expediently produced before a judge.
- Right to seek inspection by the Medical examiner.
A cognisable offence, in the context of criminal law, is an offence in the context of which a police officer is empowered, under the First Schedule of IPC (Indian Penal Code), to register an FIR, arrest without a warrant, and commence investigations even in the absence of a court order. Instances of murder, theft, kidnapping, rape, dowry deaths, and the like, fall under the scope of cognisable offences. Broadly, such offences are grave in nature, and usually, entail a sentence of three years or more. They can be both bailable and non-bailable.
By contrast, a non-cognisable offence, following criminal law, is one in which the police lacks the authority to register a FIR, effect arrest, or initiate an investigation, without the availability of a warrant following the express permission of the court. Such offences can be termed as minor. Instances of intimidation, non-lethal scuffles, individual abuse, fraud, forgery, negligence, stalking, and the like, fall under this category.
In the case of refusal, on the part of the police, to file an FIR without credible justification, a complaint can be lodged with an officer at a higher rank in the hierarchy, such as the concerned Superintendent of Police. Criminal law holds that the police is bound to register an FIR for cognisable offences. If the application to the Superintendent of Police does not result in the desirable resolution, a complaint can be filed with the judicial magistrate, under Section 156(3) of the CrPC. The magistrate shall examine the credibility of the accusation, and if satisfied, direct the police to register the same in an FIR.
Following Section 151 of the CrPC, the police can effect an arrest, even without a warrant, in any such instance where the concerned officer can ascertain the possibility of commission of a cognizable offence, and the prevention of the same necessitates such an arrest. In any other scenario, criminal law dictates an arrest can only be effected following the express direction of a court of law.
Technically, a bail is a written permission from a court sanctioning the release of an accused individual from judicial custody. Post confirmation of an undertaking, on the part of the accused, that they would present themselves for judicial proceedings when deemed necessary by the concerned court under whose jurisdiction the relevant case has been registered, and given that the accusations are non-cognisable, the accused can stay out of jail while waiting for the result of the trial.
Criminal law holds that prior to a successful conviction, the grant of bail is admissible as a right. For any bailable offence, the grant of bail is admissible as a right. Instances of bailable offences include unlawful assembly, fraudulent intent, bribery in relation to elections, and the like.
However, in consideration of the conditions of a bail bond, pertaining to nature of the committed crime, any past criminal records, financial condition, social reputation, etc., a court can use its discretion to not accept a bail plea, even for a bailable offence.
SECTION 438 of the CrPC pertains to the provision for anticipatory bail.
In an instance where an individual is apprehensive of arrest in relation to the implication in a crime of a non-bailable nature, the person can petition for anticipatory bail even prior to the registration of a pertinent FIR. The only consideration is that the grounds for the apprehension of such an eventuality have to be established as logical or evident.
In the context of criminal law, a court summons is an express direction from a court of law necessitating the presence of a person in the court premises for the initialization of pertinent legal proceedings.
The name and type of the court issuing the summons, the court number, and the case particulars such as the name of the plaintiff, relevant details, and the parties to the proceedings, are mentioned in the court summon. It also specifies the due date when the respondent is required to present themselves for the proceedings.
If served upon a person, they are required to provide a written statement within a specified time, failing in which, the court may decide to continue with the proceedings sans representation of the interests of the respondent. The lack of a response to a court summons is equivalent to giving up the right, on the part of the respondent, to defend themselves in the proceedings. Furthermore, a court can cite the respondent for Contempt of court in the event of a lack of response to the summons. Hence, it is advisable to respond to a court summon if one has been served upon an individual.
FIR stands for First Information Report. It can only be filed in the instance of a non-cognizable offence. In case of a non-cognisable offence, a NCR can be filed. The context of an FIR is the assimilation of information pertaining to the commission of a cognisable offence. Such a report can be registered by the aggrieved party, or any other individual having a lucid knowledge of the circumstances. Such information is registered under Section 154(1) of the CrPC. An FIR is the first step in the investigation of the case by the police and the subsequent initialisation of court proceedings leading up to a possible prosecution.
Quashing an FIR, following criminal law, entails the cessation of the legal proceedings pertaining to the registered accusation of commission, or possible commission, of a cognisable offence. It is usually effected post the registration of the FIR, and prior to the filing of the chargesheet. Proceedings can be quashed even after a chargesheet has been filed, but such an instance is usually discouraged. The quashing of the criminal proceedings of an FIR falls under the jurisdiction of the high court.
The high court can exercise its powers to quash an FIR in the following scenarios.
- When the accusations levelled at the accused are proven as false.
- If the available evidence does not point at the commission of a cognisable offence.
- When the allegations, and the provided evidence, do not match with the offence reported. In such a scenario, the case against the accused loses legal validity.
- When the filed FIR pertains to a non-cognisable offence. In such a scenario, further proceedings are effected only after express directions from a magistrate.
- When the allegations made against the accused lack logical consistency, and cannot be proved in a court of law.
- When the FIR is lodged, and subsequent legal proceedings are initiated with the intent of exacting revenge, on the accused, for a personal motive.
- When the amassed evidence does not entail guilt on the part of the accused.
- Under Section 155(2) of the CrPC, when the offence does not stand out as being cognisable.
- When the FIR stands out as being absurd and lacks the possibility of a logical conclusion.
- When the registration of an FIR is effected for malevolent intentions.
In a case where a warrant has been issued for an individual, and the and the relevant court decides that such a person is absconding, or concealing themselves to prevent the execution of such a warrant, the court can, under the provisions of Section 82 of the CrPC, declare such an individual as a Proclaimed Offender.
The court can direct the police to arrest such an individual for presentation in the court. In the event of such an arrest, the passport of the concerned individual is confiscated to prevent the possibility of absconding. Furthermore, once an individual has been declared as a proclaimed offender, criminal law dictates that they lose the possibility of petitioning for the relief of Anticipatory bail.
What Are The Consequences For An Nri Involved In A Road Accident With Lethal Repurcussions For The Victim?
Criminal law makes no exception for an NRI involved in a road accident leading to the demise of the victim. The NRI will be subject to the same legal proceedings as would be effected against any other individual involved in such an incident.
Such a person would have to abide by the conditions of the bail bond, and ensure that they seek the express approval of the concerned court prior to undertaking any international enterprises as long as the proceedings of the case are active in the relevant court.
- Our expert team of criminal lawyers are concerned with dealing with cases pertaining homicide, murder, or attempt at the same.
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Our lawyers are also well versed in criminal law pertaining to cruelty against a woman (Section 498-A IPC), cheque bounces (Section 138 NI Act), and cases relating to proclaimed offenders.
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