Criminal law involves a system of legal rules designed to keep the public safe and deter wrongful conduct. Those who violate the law face incarceration, fines, and other penalties. The Indian criminal justice system is both complex, and adversarial in nature. With the exception of minor traffic violations, accused individuals will require the assistance of an advocate.
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:
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:
|Offence||Cognizable or Non-Cognizable||Bailable or Non-bailable|
|Punishable With Imprisonment For
|Punishable With Imprisonment For
An FIR can be quashed by the High Court if the court is convinced that the person is innocent and has been falsely implicated with the only motive to trouble the person and there is no need to continue the legal proceedings against that person.
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 of CrPC 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."
Section 482 of CrPC, which deals with the power of court to quash criminal proceedings, hasn’t given the details of that what exactly constitutes the inherent power of court. In that sense, the Code is very vague as it doesn’t lay out the grounds on which the foundations of the inherent power of court lay.
Furthermore, there has been consistent inconsistency in the judgments of the Supreme Court of India with regard to the application of Section 482 of CrPC. Consequently, the application of section 482 of CrPC is a very agitated issue in litigation along with being a strongly debated concept in the legal academic circles.
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
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.
Whenever there is apprehension of being arrested in F.I.R. without requiring the presence of the applicant/accused, we ensure party get bail on ASAP basis.
Under Section 438 of the Criminal Procedure Code there is a provision for a person to seek 'Anticipatory Bail'. This means that an individual can seek or request to get bail in anticipation or in expectation of being named or accused of having committed a non-bailable offence.
Law Commission of India in its 41st report recommended to incorporate this provision in procedure code. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence.
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:
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.
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
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.
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.
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.
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.
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
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
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:
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.
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.
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.
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.
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.
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.
Section 352 IPC: Punishment for assault or criminal force otherwise than on grave provocation. —Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both. Explanation. —Grave and sudden provocation will not mitigate the punishment for an offence under this section. If the provocation is sought or voluntarily provoked by the offender as an excuse for the offence, or if the provocation is given by anything done in obedience to the law, or by a public servant, in the lawful exercise of the powers of such public servant, or if the provocation is given by anything done in the lawful exercise of the right of private defence. Whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact.
In India according to Section 300 of the Indian Penal Code, 1860, murder is defined as follows:
Murder. --Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- 167 2ndly. -If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or- 3rdly. -If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or- 4thly. -If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Sexual assault is an act in which a person intentionally sexually touches another person without that person's consent, or coerces or physically forces a person to engage in a sexual act against their will. It is a form of sexual violence which includes rape (forced vaginal, anal or oral penetration or drug facilitated sexual assault), groping, child sexual abuse or the torture of the person in a sexual manner.
A man is said to commit "rape" who, except case hereinafter excepted, has sexual intercourse with a woman in circumstances falling under any of the six following descriptions: -
The above definition excluded marital rape, same sex crimes and considered all sex with a minor below the age of sixteen as rape.
After 3 February 2013, the definition was revised through the Criminal Law (Amendment) Act 2013, which also raised the legal age of minor to eighteen.
A man is said to commit "rape" if he: ––
(a) Penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person.
OR (b) Inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person.
(c)Manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person.
(d) Applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:
✥ Against her will.
✥ Without her consent.
✥ With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
✥ With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
✥ With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent.
✥ With or without her consent, when she is under eighteen years of age.
✥ When she is unable to communicate consent.
✥ For the purposes of this section, "vagina" shall also include labia majora.
✥ Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.
The system of control of Narcotic Drugs in India has been put in place considering the requirement of narcotic drugs and psychotropic substances for medical use and the country’s obligations towards the UN conventions.
India is a signatory to The UN Single Convention on Narcotics Drugs 1961, The Convention on Psychotropic Substances, 1971 and The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 which prescribe various forms of control aimed to achieve the dual objective of limiting the use of narcotics drugs and psychotropic substances for medical and scientific purposes as well as preventing the abuse of the same. The administrative and legislative setup in the field of Narcotics has been put in place in the country in accordance with the aforesaid spirit of the UN Conventions. The basic legislative instrument of the Government of India in the regard is the Narcotics Drugs and Psychotropic Substances (NDPS) Act, 1985.