delhicriminallawyers

We advise our clients to approach nearest police station and report the crime on first instance.
We strictly advise them to make complaint in written form and take a receiving for the same if possible and maintain a record of minutes of meeting.
We are standing side by side to our clients whenever and wherever they require as a support.
Additionally for the best result we advise our client to consult us before taking any step as a precaution, so as an output we get the best result in favour of our client and fetch the relief they sought.

India has a well-established statutory, administrative and judicial framework for criminal trials. Indian Penal laws are primarily governed by 3 Acts:

1. The Code of Criminal Procedure, 1973 (Cr.P.C.);
2. The Indian Penal Code, 1960 (IPC);
3. 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 evidentiary 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.

By the flowchart hereinbelow, an attempt is being made to make the reader briefly understand the process of criminal investigation and trial in India, as a lot of foreign companies and Ex-pats are coming to India, and due to unfortunate circumstances, they may, at times find themselves embroiled in unnecessary criminal cases.

To appreciate the process of Indian criminal law, it is necessary that to understand following important terminology:

1. 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 authorised to give bail to the accused at the time of arrest or detention.
2. 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.
3. 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 dependant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.
4. 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.
5. 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.
6. Whether an offence/case is bailable or not 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.
7. 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.
8. 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 criteria in the table below, is applicable in those cases which are silent on this aspect. For easy understanding, the following criteria may be understood:

Offence	Cognizable or Non-Cognizable	Bailable or Non-bailable
Punishable With Imprisonment For Less Than 3 Years or with fine only	Non-cognizable	Bailable
Punishable With Imprisonment For 3 Years or more	Cognizable	Non-Bailable

9. The criminal investigation process and prosecution mechanism in India, can be started in any of the following manner:
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.

source: http://www.mondaq.com/india/x/318472/Crime/Process+Of+Trial+Of+Criminal+Cases+In+India

After the expiry of the period of police custody if any, the accused is sent to Jail. U/s 437 and 439 Cr.P.C., such accused has a right to be released from custody. Regular bail, therefore means release of accused from custody to ensure his presence in the trial.

437. When bail may be taken in case of non- bailable offence. 1

(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his 1 guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice.

(4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its 1 reasons or special seasons] for so doing.

1. Subs. by Act 63 of 1980, s. 5 (w. e. f. 23. 9. 1980 ).

(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

439. Special powers of High Court or Court of Session regarding bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in subsection (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub- section.

(b) that any condition imposed by a Magistrate when releasing an person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Appeal from the decisions of the District Court in the Civil or Criminal Matter lie to the High Court.

As per the hierarchy system of the Courts, the trial courts are subordinate to the High Court to administer the civil and criminal cases. The Code of Criminal Procedure regulates the civil court where as the Criminal Procedure Code governs the Criminal Court.

There are mainly three types of jurisdiction by which the matters are entertained by the civil or criminal court. These are as follows:

Territorial Jurisdiction

Pecuniary Jurisdiction

Jurisdiction with respect to the subject matter of the case.

Any person who is aggrieved by the decision of the court can challenge decision before the higher court for appeal.

Appeal is considered to be a process by which the judgment or the order of the subordinate court is challenged before the high court. This can be filed any person who is a party to the dispute and in case of death of the person, the legal heirs or the representative files the same before the high court or can continue to maintain such appeal. The person who files the appeal or continues to maintain the appeal on behalf of the deceased person is known as appellant. The court which hears such appeal is termed as appellate court. The law has not given any inherent right to challenge the order of the subordinate court. The appeal can only be filed if it is specifically allowed by the law in the specific manner as mentioned by the Specific Courts.

Appeals in Civil Matters

Appeals filed either against the order or judgment of the civil cases is considered as the Civil Appeals which are governed by the Civil Procedural Code. However, the high court has the authority to frame its own procedures and rules to conduct the civil appeals.

Appeals from original decree

Any judgment/order or decree passed by the district judge or the additional District judge can be challenged before the High Court.

Second Appeal

The decree or the judgment passed by the appellate civil court is considered to be the first appeal and if such judgment or the decree is challenged before the high court then in that case the appeal is considered to be the second appeal. In a case where the substantial question of law is involved then the second appeal can be filed against an exparte decision of the appellate court.

Grounds of Appeal

The decree or judgment passed by the court can be challenged on the basis of the facts of the case and the legal interpretation of the legal provisions.
In the cases where the party to the dispute raises any objection with respect to the territorial and pecuniary of the court passing the judgment and the decree.
On the basis of the failure of justice relating to the incompetency of the court.
In the cases where the parties to the dispute have not joined in the original suit, in such matters appeal lie against the judgment/ decree of such court.
Where there is a challenge to the interpretation of law which are applied by the subordinate court
On the grounds of any defect or error or irregularity in the legal proceedings of the case
In the cases where the substantial question of law exists and it is affecting the rights of the parties.

No Appeal

With the consent of the parties, no appeal can be filed against the judgment/decree passed by the Court. Where the value of the subject matter is less than Rs. 3000/- and the question of law arises, in such cases the appeal can be filed before the superior court. In the cases where the decree is passed by the single judge of the High Court in second appeal is not allowed for appeal.

Procedure

The appeal in the form of memorandum is signed by the party to the case or his advocate. The memorandum is required to contain grounds of objection to the decree or judgment in the appeal with certain annexures comprising of the copy of the decree or judgment.The appellant is required to submit the amount paid in a case where the appeal is filed against such decree. The appellate court may require the appellant to furnish the security for the cost of the appeal or the original suit or both before calling the other party to appear before the court or at the application of such party.

Stay

By filing the appeal in the appellate court does not amount to the stay of proceedings. But in certain cases the court appellate court can order to stay the execution of the decree where it finds that that there a sufficient reason to do so. The stay can only be granted by the court upon the application for the stay of the execution before the expiry of the time allowed for the filling the appeal and in cases where such application is sufficient reason for seeking the stay.

Limitation

The appeal before the high court from any decree or judgment passed by the subordinate court shall be made within 90 days from the date of the decree or the order but if the appeal is filed within 30 days before the high court which has passed the decree or the judgment. In case of seeking the review of a Judgment, the limitation period is 30 days and with respect to invoking the jurisdiction of the high court, the limitation period is 90 days.

Court fee

The court fee for civil appeal is payable as prescribed by the schedule.

APPEALS IN CRIMINAL MATTERS

Appeal by the convicted person

Any person who is convicted for the offence which is punishable with imprisonment of seven years or more on a trial held by session judge or held by another court may appeal to High Court.

No Appeal: Limited Appeal

Where the

Where the offence is punishable with sentence of imprisonment for a term not exceeding three months or the fine exceeding Rs. 200/- or both , in such cases the no appeal shall be filed.
No appeal shall lie in the cases where the sentence is paying the fine of Rs. 100 or less given by the magistrate of first class or a sentence of fine of Rs. 200/- or less passed in the summary trial.
No appeal shall lie before any court in the cases where the accused confesses his guilt and is convicted.
Such accused after making the confession of his guilt can appeal for the legality and the extent of the sentence.
But the appeal is made in the cases where co accused of the person has been given the appealable sentence in the same trial.

Appeal by the state

The state government has the power to appeal to the high court regarding the enhancement of the sentence of the accused in the cases where the sentence is inadequate. The reasonable opportunity is given to the accused for challenging the enhancement of the sentence. Also the accused person has the right to appeal for the acquittal or for the reduction of the sentence. And the state can also appeal to the High court against the order of acquittal passed by the Court. Only the high court has the authority to hear the appeal of it grants leave for the same to the high court.

APPEAL BY COMPLAINANT

Upon the case of complaint filed by the complainant, the accused has a right to file the appeal against such complaint for acquittal after seeking leave to file the appeal.
The complainant seeking the leave has to file the appeal within 60 days from the date of order of acquittal.
If such application is refused by the high court, then no appeal shall be filed by the state.

Procedure

The appeal filed before the high court has to be in written form and is presented by the convict or the accused person or by his advocate. In case if the convict person is in jail then the jail authorities would file the appeal on his behalf.
The appeal filed before the Court should contain the clear grounds. The court has the power to dismiss the appeal without conducting the detailed hearing if there is no sufficient ground for interfering but this can be done only after giving the opportunity to accused or his advocate of being heard and present the case before the concerned court.
The appeal filed by the accused through the jail authorities has also given the opportunity to be heard unless the appeal is frivolous or which is disproportionate to the circumstances of the case.
The appeals cannot be rejected summarily unless the term is expired for filing the appeal. If the appeal is dismissed which is filed by the jail authorities and the court finds that another petition of appeal is presented by the accused himself or through his advocate which has not been considered by the court then the Court hear such petition and dispose it if it is required for interest of justice.
The high court dismissing the appeal has to give reasons in support and the dismissal of appeal summarily has to be used cautiously.
If such appeal is not dismissed summarily then the formal hearing notice containing the time and place of hearing shall be given to the accused or his advocate, state and the complainant. The appeal is heard and dismissed at the particular date and place of hearing as fixed by the high court.

BAIL PENDING APPEAL

Where the appeal is pending before the court, the court shall record the reasons in writing and suspend the sentence which is passed against the convict person and if the convicted person is in the confinement.

If the person is convicted by the high court, then the high court has the power to grant the bail if the court is satisfied by the reason:

Commission of the offence by the accused is bailable and the person is on bail.
When the person is released on bail and is sentenced for not more than 3 years of imprisonment. The bail granted to the convict person is for some period, during which the accused can file the appeal and obtain a bail from the appellate court.
In cases where the appellant is sentenced to imprisonment, the time during which the accused is released on bail is excluded for the computation of the term of the sentence. But in certain cases where the high may issue the warrant for the arrest of the accused person and it may either grant him bail or may sentence him with imprisonment, such appeal are filed against the acquittal order by the state or the complainant himself.

LIMITATION PERIOD

The time period for filing the appeal is 30 days against the death sentence passed by the death sentence passed by the session court or the high court having its original jurisdiction.The limitation period is 90 days against the order of acquittal and the limitation period is 90 days in the cases where the order has to be made after seeking the special leave of the court.

COURT FEE

There is no court fee for the convicted person who are filing the appeals through the jail authorities otherwise the court fee is applicable as prescribed by the Act.

CIVIL MATTERS

Appeal from Original Decree

Appeal from original decree (First Appeal)

The Appeal can be made to various courts depending upon the subject matter and the monetary value of the case against the decree or the judgment of the civil court i.e. civil judge, Additional District Judge and the High Court having the original jurisdiction of the matter.

Second Appeal

If there is a substantial question of law is involved in the decree/judgment given by the appellate court in the first appeal can be challenged in the second appeal before the High Court. Such appeal can be filed against exparte decree/judgment of the first appellate court.

GROUNDS

On the basis of facts of the case and the legal interpretation of various legal provisions.
Territorial and pecuniary competency of the court.
Failure of justice on the competency of the court
The parties which are not joined in the original suit, appeal against the decree/judgment of such court can be maintained.
Defect in the irregularity of the proceeding before the subordinate court affecting the merits of the case.
If the substantial question of law is existed if it is of public importance and affecting the rights of the people.

NO APPEAL

No appeal can be made against the decree or the judgment passed by the court with the consent of parties. Except the question of law from a decree in any suit where the value of the subject matter is less than Rs. 3000/-No appeal can be filed against the decree or the judgment passed by the single judge of the High Court in the second appeal.

PROCEDURE

The signed memorandum by the parties are required for the filing the appeal. The memorandum must include the concise and clear grounds of objection against the decree/judgment which is challenged before the court and the copy of the decree or judgment must be attached with the memorandum.

If the appeal is against the decree/judgment for the payment of money, then appellant shall deposit the amount which is in dispute along with the security for the cost of appeal or the original suit or at the application of such party.

Source: http://www.helplinelaw.com/civil-litigation-and-others/APPEALTT/appeal-to-the-high-court.html