This article will not just deal with the general principles of the Code of Criminal Procedure and its basic framework but will also overview the classification of offences, pre-trial procedures and components of a fair trial as per CrPC.
Note: This article is divided into two parts, the link of the second article which deals with a fair trial as per CrPC is given at the end of this article.
The legal Framework in any given area is usually categorised into two aspects:
Substantive law and
Substantive law refers primarily to the area of law which defines the rights and duties of individuals and contains the prescription and prohibition of the law. On the other hand, procedural law Regulates the manner in which such rights and duties will be enforced through the legal mechanism
For example, whether “A” has the right to enforce a contract against “B” will be decided in reference to the provisions of the Indian Contract Act. On the other hand issues such as the place of the suit and the court where the suit will be filed, the procedure to be adopted by the court and other such matters are determined by the code of civil procedure.
Similarly, In the criminal law aspect, Indian Penal Code constitutes the substantive law and the Code of Criminal Procedure constitutes the procedural law. Consisting of a total of 38 chapters and more than 480 sections the Code of Criminal Procedure contains detailed provisions as to how the criminal law of the land is to be enforced.
The following are some of the important issues covered by the code of criminal procedure:
Detection of crime
Arrest of suspects
Search and seizure
Investigation and collection of evidence
Imposition of punishment
The provision regarding appeal review etc.
Since it is not practically possible to encapsulate the details of the entire code, therefore, it is important to be mindful of the certain fundamental aspects on the basis of which the structure of the criminal procedure is built in India.
It is important to understand that the nature of rules and prescriptions applicable in a particular situation under the code of criminal procedure depends on the classification of the offence in question. There are three main categories of classification of offences under the code of criminal procedure which determine the different rules which are applicable to different types of cases in relation to certain matters.
Classification of offences:
1. Cognizable and Non Cognizable Offences.
Cognizable offences refer to the list of offences so identified in the first schedule of CrPC for which a police officer may arrest a person without warrant. On the other hand, non-cognizable offences mean offences for which a police officer can arrest a person with a warrant.
For example, the offence of sedition is a cognizable offence whereas the offence of exerting undue influence at an election is a non-cognizable offence. Therefore, In a case of sedition, the police officer can arrest the accused without any warrant and can also conduct an investigation on the case without any authorisation of the magistrate.
On the other hand, in case of the offence of exerting undue influence at an election, the police officer cannot arrest the accused without a warrant and would also require the authorisation of a Judicial Magistrate to conduct the investigation.
It is important to understand that the distinction between cognizable and non-cognizable offence is not based on generalized principles but on the basis of the identification listed in the first schedule.
2. Bailable and Non Bailable offences.
Bailable offences refer to a list of offences which are identified as bailable offences in the first schedule of the CrPC or under any other law. In a case where the offence is identified as a bailable offence then the accused is arrested or detained without a warrant he or she has a right to be released on bail.
In case of a non-bailable offence whether the arrested person will be granted bail or not is up to the discretion of the court. However, there is no articulated general rule in this regard, generally, more serious offences are categorised as non-bailable and less serious offences are categorised and bailable.
Summons Case and Warrant case
Warrant case is referred to all such cases involving an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Whereas, summons case refers to any case which is not a warrant case. The purpose behind this classification is to determine the nature of the trial procedure to be adopted in relation to the case in question.
Under CrPC separate trial procedures have been prescribed for warrant cases and summons cases. The trial procedure in relation to the warrant cases is more elaborate than the summons cases.
The distinction between a summons case and a warrant case is also relevant and how the presence of the accused is secured by the court. In a summons case once cognizance has been taken by the court a summon is issued to the accused to secure attendance in the court. On the other hand in case of a warrant case, the attendance of the accused is secured by issuing a warrant of arrest.
Pre-trial procedures as per CrPC.
CrPC contains various important procedures which can be generally characterized as pre-trial procedures. Pre-trial procedures refer to the set of procedures which regulate the circumstances prior to the stage of the trial, these procedures primarily cover the issues such as:
Detection of crime
The arrest of the suspected criminals
Investigation of the crime
collection of evidence in relation to the crime etc.
However, We’ll be focusing on 3 important aspects of pre-trial procedure which are:
Search & Seizure
Interrogation during Investigation
Arresting a suspect in India is one of the most important powers which is vested with the police, however, it is also one of the most controversial powers which are vested with the police. The act of arrest has direct nexus with the loss of personal liberty. A police officer can arrest an individual with a warrant or without a warrant. However, if the matter concerns a non-cognizable offence then a police officer cannot arrest a suspect without a warrant of arrest from a magistrate.
Not only this, but a police officer can also arrest a person without a warrant if the suspected individual is actually concerned or reasonably suspected to be concerned with a cognizable offence. Section 41 of the code of criminal procedure also provides some further grounds where a police officer can arrest a person without warrant.
The code of criminal procedure provides multiple safeguards to protect the rights of arrested persons. The Supreme Court in various cases has laid down the detailed guidelines in relation to the rights of arrested persons, some important rights of an arrested person as following:
Right to be informed of the grounds of arrest.
Right to be informed of the right to bail.
Right to be produced before a magistrate without delay.
Right of not being detained for more than 24 hours without the permission of a Judicial Magistrate.
Right to consult a legal practitioner.
Right to be informed of his free legal aid.
Right to have one friend or relative be informed about the arrest and the place of arrest.
Right to have a memo of arrest attested by at least 1 witness.
Right to undergo a medical examination within 48 hours of the rest.
Search & Seizure
For the collection of evidence, the police are authorized to search and seize things and documents. The police can conduct a search with a warrant or without a warrant. The search warrant is basically a licence for the police to search any place either generally or for specific things.
As conducting a search involves invasion of privacy therefore the courts are expected to be very mindful while issuing search warrants. Section 93 of the code of criminal procedure deals with various Grounds on the basis of which the court may be justified to issue a search warrant. Furthermore, Section 165 authorises a senior investigating police officer to conduct a search without a warrant if during the investigation there is no time to obtain a search warrant.
It is crucial to take note that there are certain general principles which should be applicable in respect to search seizure, whether it is with or without warrant the search is supposed to be made in presence of at least two Independent and respectable inhabitants of the locality in which the search and seizure is going to take place. The occupant of the place has the right to attend the search furthermore, the person making the search is required to make a list of all things seized and the places where such things as they found and have the same signed by the witnesses.
Interrogation during Investigation
For the collection of evidence, the investigating officers are empowered under Section 161 of CrPC to orally examine any person supposed to be acquainted with the facts and circumstances of the case. Here, it is important to note that the accused is also covered under the expression “any person acquainted with the facts and circumstances of the case” and therefore the accused will be under a mandate to answer the questions which are put before him by the investigating officers. However, if the person who is being examined will not be bound to answer such questions the answers to which have a tendency to expose him to a criminal charge, penalty or forfeiture. (Also read)
The investigating officer can reduce the statements given by such a person into writing but such a person who gave the statement is not required to sign such a document. This provision was introduced in the code to ensure that the person who is being examined does not face any kind of indue pressure or harassment by investigating officers. It is also important to understand that if a statement is made to the investigating officer under section 161 of the code then it can be used only for Limited purposes.
As per Section 162 of the code, a statement made by a person under Section 161 can be used to contradict his testimony when he is called as a prosecution witness. However, it is crucial for us to make a note that when such a person is called as a defence witness his previous statement which he gave under section 161 of the code cannot be used to contradict his testimony.
The investigating officer under Section 163 of the code is duty-bound to not offer any kind of inducement, threat or promise while examining a person under section 161 of the code.
To read the second part click on the link given below: