Surabhi Sharma, Student, Vivekananda Institute of Professional Studies, GGSIPU, Delhi
Introduction
Once a crime takes place, there are few stages before ultimately judiciary pronounce its judgement of whether the accused is guilty or innocent? There are various provisions provided in the Code of Criminal Procedure, 1973 (Cr.P.C), which facilitates different stages of trials. In this article, Procedure for lodging of F.I.R (First Information Report) and further stages up to Conviction or acquittal as per Cr.P.C has been discussed in detail with relevant case laws. In order to expound the different stages, certain case laws have also been discussed in depth. Following are the stages in Criminal Cases from lodging F.I.R to Conviction or Acquittal, as per the sequence:
1. Complaint/ F.I.R
2. Investigation
3. Bail
4. Charge sheet/ Charge
5. Discharge charge/Frame
6. Evidence of Prosecution
7. Defence evidence
8. Statement of Accused
9. Argument
10. Order- Acquittal/Conviction
1. Complaint or F.I.R
The first stage of any criminal case is the lodging of First Information Report (F.I.R) against the alleged crime, which is followed by the investigation and filing of the charge sheet. The information is either reached to police itself or by the orders of a Magistrate.[1] Section 154 of Cr.P.C prescribes the recording of the “first information” while when the complaint is filed at the instance of appropriate Magistrate has been provided in Section 154 of the Cr.P.C.
Powers of Police to investigate under the Code of Criminal Procedure, 1973 are related to all cognizable[2] and non-cognizable[3] matters. Their powers are inherent and are not supposed to have trespassed through any means. In the matter of S.N. Basak,[4] Supreme Court held that the statutory right of the police to carry on an investigation[5] before a prosecution is launched, cannot be intervened by the Courts, neither under Section 401 relating to High Court’s power of revision nor under section 482 which ensures Saving of the inherent power of High Court. The procedure of information recording or lodging of F.I.R is different in Cognizable and Non-Cognizable Offence, as discussed below:
i. First Information in Cognizable Offence: The lodging of FIR is a crucial mechanism in any criminal trial, as in further stages it is considered in order to corroborate the evidence. It is insisted upon to lodge FIR promptly in order to obtain the accurate prior information, namely, about the circumstances in which the crime was committed; the place where it was committed; the name of actual culprits, if known, otherwise their appearance(s); and the eye-witnesses.[6] Later, the Court needs to consider facts and other evidence for deciding the grounds of the case.[7]
The primary object of the first information report is to set the criminal law in motion and to initiate the investigation process against the alleged offence. As per Section 154 of the Code, every information relating to the commission of any cognizable offence is to be reduced to writing either by the police officer-in-charge or under her direction. The information requires to be read over to and also the person giving, must sign it. Such information which is reduced to writing is called “first information”. Although, ‘First Information Report, has no mention in the Cr.P.C., but its significance should be construed under this section.[8]
ii. First Information in Non-Cognizable Offence: Section 155 of the Code provides for the Information in case of Non-cognizable offence. As per this section, the information received about the offence needs to be recorded by the police officer in charge and further to be entered in such books, which the state government prescribes. Under the sub-section (2) of Section 155 of the Code, a police officer cannot investigate a case relating to the non-cognizable offence, without the order of the Magistrate, having the power to try such cases. The police officer acquires the power as soon as he receives the order to investigate and the later exercise of the investigation is similar to that in the case of any cognizable matter. Again, no person can be arrested by the police officer in case of Non-cognizable offence, unless a warrant has been issued by the Magistrate for the arrest.
Section 155(4) states that if two or more offences are involved in a case and among all if one is cognizable offence, then the whole case shall be considered as a cognizable case. There is no Defence available that merely one case is cognizable and others are non-cognizable. Resultantly police are empowered to investigate in the manner as prescribed for the cognizable offence.
2. Investigation
As per the terms of Section 157 of Code, as soon as the complaint is filed or FIR is lodged, the stage of investigation begins. Although mainly investigation is undertaken by a police officer upon receiving information, the receipt of information is not a condition precedent for an investigation to start.
It has been made clear in Section 156 of the Code that Investigation of cognizable offence is to be investigated by the police officer without the cognizance of the Magistrate, whereas prior order is required in case of a non-cognizable offence. Section 157 of the Code provides for the procedure of investigation that police has to follow to collect the evidence. The evidence is collected to corroborate with the first information when a police officer-in-charge of a police station has a reason to suspect that cognizable offence has been committed, based on FIR or any other information so received. The same section requires that soon, the intimation of the FIR to be sent to the Magistrate, having the jurisdiction over the case.[9] Consequently, the officer can proceed to the spot, in person, for investigation of the facts and circumstances and collect evidence, if possible, can even depute her subordinate officer for the same and required arrest too can be made.
However, when the information is not severe, the officer is not bound in person or through subordinate officer to investigate on the spot. Besides, the case is without any ground; the officer can refuse to investigate the case as per the proviso (b) to section 157(1). Then, as per subsection (2) of section 157 ensures a safeguard against its misuse as it requires the officer in charge of the thana to reduce into writing the failure to investigate a complaint even when it seems a cognizable offence The officer is required to insert in the report, the reasons of why the investigation was not initiated and accordingly notify the informant about the same.
As per Section 158, the report maintained by the police officer in charge will be produced before the Magistrate, who is empowered to take cognizance of such offence. The main objective of sending police report through the superior police officer is to acknowledge the Magistrate that a police officer is investigating a particular case. It is sent to enable the Magistrate to control the investigation and provide directions if necessary as given in Section 159 of the Code. There should be no delay in sending report to Magistrate as per Section 157 a police officer is supposed to ‘forthwith a report’ which signifies that the report has to be sent without any unreasonable delay. The case does not become doubtful because of delay but would put the Court on guard. In the matter of Swati Ram v. State of Rajasthan,[10] the court held that mere delay in sending the report does not throw away the prosecution case in its entirety.
Various reports are involved in an investigation under the following provisions of the Code:
i. Section 158 – As per the provision of this section, a “preliminary report” has to be submitted by the officer in charge of the police station to the Magistrate.
ii. Section 168 – Under this section, a subordinate officer, who is deputed to investigate has to submit a report to the officer in charge of the police station.
iii. Section 173 – As the investigation gets over, under this section, a final report is to be submitted by the police officer in charge of the Magistrate.
Deep understanding of chapter XII of the Code provides that the powers of the police to investigate a cognizable offence are broad and unfettered.[11] Track of investigation cannot be obliterated even by the Courts.
3. Bail
As we have discussed above, that police starts an investigation as soon as the complaint is filed. Following the procedure if an accused is arrested for any offence[12] and police could not complete the investigation within 24 hours, in such a situation accused person is produced before a magistrate for seeking an extension of custody. The Magistrate can grant police custody to the accused which shall not be more than 15 days in the whole, depending upon the application. Nevertheless, if the Magistrate could not be convinced, then the accused is taken to magisterial custody.
The Magistrate under Section 167(2)(a) has the power to authorize the detention of the accused person, otherwise in the custody of police beyond the period of 15 days if the court is satisfied that sufficient grounds exist in doing so. Nonetheless, no magistrate shall authorize custody for more than Ninety days[13], where the investigation is of an offence punishable with death, imprisonment for ten years or imprisonment for a term not less than ten years; or more than 60 days[14], where the investigation is of any other offence. On the expiry of the 90 days or 60 days, the accused can be granted bail by applying for a grant of bail, within the provisions of sections 436 and 439 of Cr.P.C.
i. Bail Provisions in Case of Bailable Offence: A person accused in the bailable offence has to be released on bail as per Section 436 of the Code.[15] Such accused person if willing to provide bail must be released as the provision under section 436 of the Code is mandatory, and the court or the police cannot exercise their discretion in the matter. The discretion of police is limited to decide whether to release the accused either on personal bond or with sureties. If the accused is unable to furnish bail, as per the terms of section 57 of the Code, the police officer is required to produce the accused person before the Magistrate within 24 hours of the arrest. Later, when the person is produced before a magistrate (having jurisdiction) and is willing to provide bail, the Magistrate is required to release the accused person. It is because the Magistrate cannot authorize the detention of a person who is willing to furnish bail with or without sureties even to aid the investigation.[16]
ii. Bail Provisions in Case of Non-Bailable Offence: Section 437 of the Code deals with the bail-in case of non-bailable offences. This section has provided discretionary power to the Court (other than High court or Court of Session) to release an accused on bail in a non-bailable case. This section enumerates circumstances when bail shall be granted with a specific condition(s) and when shall not be granted.[17]
4. Submission of the final report
When the investigation (after bail) by police is over, a final report or “Police Report”[18] has to be filed under Section 173 of the Code. With this, the investigation and the collection of evidence collected by the Investigation Agency concludes. If the evidence collected against the accused is not sufficient, the police may file a report under section 169 of the Code and release the accused on executing a bond and undertaking that he will appear before the Magistrate whenever asked to.[19]
This final report can be of 2 types, namely, Closure Report and Charge sheet (Final report). When police have no evidence against the accused that he has committed the alleged offence, a closure report is filed.[20] After filing the closure report, the Magistrate has four options:
i. Close the case upon accepting the report.
ii. Direct the investigating agency to investigate the matter further, if he/ she thinks there is still some gap in the investigation.
iii. Issue notice as he is the only person who can challenge the closure report.
iv. May reject the closure report and take cognizance under section 190 of Code, and under section 204 of CrPC issue summons to the accused and direct his appearance to the Magistrate.
Charge sheet contains elements of the offence in a defined way. The entire police investigation is provided in this report, including the charges slapped against the accused.[21] It includes the facts in a summarized way, the copy of the FIR, all the statements recorded under Sections 161 and 164, Panchnamas, list of seizure, list of witnesses and other documental evidence adduced by the investigation agency during the investigation.[22]
On the filing of the Charge sheet, the Magistrate may issue summons/warrant to the accused named in the charge sheet and direct him to appear in the court, on the date so directs.[23] After the charge sheet is filed, the Magistrate takes cognizance of the matter as per Section 190 of the Code. The court can:
i. reject the charge sheet and discharge the accused, or;
ii. accept it and frame the charges and, post the case for trial.
In cases where the offence is punishable with imprisonment of fewer than ten years, the final report under Section 173 shall be filed by the investigation agency within 60 days. In contrast, in cases the alleged offence that has been committed is punishable with imprisonment for more than ten years, life imprisonment or the death penalty, it is mandatory that the investigation agency, in such cases, file their report within Ninety days from the date of the FIR got registered. With this “Pre-trial stage” come to an end, and the stage of “Trial” starts. The police authorities are required to hand over the case to the Prosecutor, if so appointed, and act as per the instructions of the court during the stage of Trial.
There are further two circumstances, one is when the accused pleads guilty, if this is the case, the court shall record the plea and may convict him; while the second circumstance in which the accused does not pleads guilty and if this happens, the case is posted for trial.[24] Following this, officially the case is opened by the Prosecutor, who will have to explain the court about the charges put on the accused in the charge sheet. Here now, the accused at any time can file an application under section 227 for discharging him from the charges raised against, on the ground that such charges are false and not sufficient or strong enough to proceed against him in the trial.[25]
5. Discharged – charge/frame
As per the Code, the Discharge Application is the safeguard provided to the person against whom malicious charges have been framed. If the allegations which have been made against him are false, this Code has provided the methods for filing a discharge application. Ordinarily, when the trial begins by the concerned court and the evidence given before the Court is insufficient to satisfy the offence and prima facie, no case is formed against the accused, then he is entitled to be discharged.[26] However, Sections 239 and 227 of the Code, provide provisions that before the charges are framed against an Accused person, he can be discharged. These provisions can be used by the accused, only in warrant cases.
In the matter of Tapati Bag v. Patipaban Ghosh[27], it was held that if the Court considers that there are no sufficient grounds for proceeding against the accused, the accused has to be discharged, however, after much consideration, if the Court is of the opinion that there is ground for surmising that the accused has committed the offence, and that is exclusively triable by the Court of Session then the charge must be framed against the accused. Afterwards, the charges are framed, the trial has to be initiated against the accused and resultantly either acquitted or convicted, but it will no more be called as discharge. When charges are framed under Section 228 of the code, there is no option for back-gear to discharge the accused under Section 227 of the code, it is because “Discharge post framing of charge” has no mention in the Code.
6. Evidence of Prosecution
Section 242 of Code explains the procedure with regards to the collection of evidence against the alleged accused and recording of the same after examining and cross-examining to either acquit or convict him. In a criminal trial, at first, the case of the prosecution is presented. The burden to prove the accused guilty is on the prosecution, and the evidence should be beyond a reasonable doubt. The prosecution can present other evidence and summon witnesses to prove the offence by linking them to the offender. This process of proving alleged accused guilty by evaluating witnesses is called “examination in chief”.
It is within the power of the Magistrate to summon any person as a witness and can order him to produce any document. In one of the case, the orders of the Magistrate to acquit the accused were set aside, and a retrial was ordered by sending the case to a District-Magistrate who sent it for a trial to a Magistrate other than the one that tried the case initially.
7. Defence Evidence
Section 243 of Code describes the procedure with respect to collection and presentation of evidence in favour of alleged accused. After the prosecution has summed up with the examination of the witness, the accused may enter his defence through a written statement, and the Magistrate need to file it with the record. The defence can be produced orally as well. Later, when the accused has entered his defence, an application may be filed to the Magistrate to perform cross-examination of any witness presented by the prosecution.
The Magistrate may then summon any witness as per the Sub-section (2) of section 243 to be cross-examined by the defence. The burden is on the prosecution to establish the case beyond a reasonable doubt. However, if the defence prove a reasonable doubt, then the evidence submitted by the prosecution is invalid and contains no authenticity to be recorded in court against the accused.
8. Statement of Accused
After the stage of “defence evidence”, the accused is given a chance to provide his statement as per Section 313 of Code. Subsection (1)(b) casts a duty on the court to provide an opportunity to the accused to explain the charges accrued against him. An oath is not administered during the recording of such a statement. The accused then speaks facts and circumstances in ones favour in the case. Anything recorded during the statement can be used against the accused at any further stage.[28]
The aim of empowering the court to examine the accused under section 313, Code is to meet the requirement of the principle of natural justice namely,
“audi alteram partem”
That no one should be condemned unheard. This means that the accused is given a chance furnish some explanation as regards the incriminating circumstances against him and the court must consider such an explanation. In the case of circumstantial evidence, the same is necessary to decide whether or not the chain of circumstances is complete.[29]
In the matter of Dharnidhar v. State of U.P. & Others[30], the Apex Court held that the proper methodology to be adopted by the court for recording the statement of the accused under section 313, Code is by inviting the attention of the accused to the incriminating circumstances and evidence and invite his explanation. Put simply; it provides an opportunity to an accused to tell the court as to what the truth is and what defence is available to him.
9. Argument
Section 314 provides that the prosecutor has to submit her oral arguments after the conclusion of prosecution evidence and before any other stages. It is also required to submit a memorandum, in brief, stating the arguments in his favour and a copy of that memorandum should be given to the party in opposition. Adjournment for filing of written argument shall be given only when the court is of the opinion that it is proper and hence record reasons for the same. The court will regulate an oral argument if it considers it immaterial or unconcise. At this stage, the prosecution argument helps the court to carry out an examination of the opposite party and seeking its explanation on the contention(s) raised by the prosecution.
In accordance with the Section 234, the prosecution has to sum up his case, and the accused (or through pleader) shall be entitled to reply, and if any point of law is raised from the side of accused, the prosecution may with due permission of the Judge make his submission about the point of law. It is pertinent to note that Section 314 is also related to the arguments of the parties. Section 234 ensures that after the evidence for the defence is deduced, it is for the prosecution to wind up the case, and then the defence will be given a chance to reply. Section 234 is a special provision regarding argument while Section 314 is a general one and hence Section 234 would prevail over Section 314. The reason being it is a well-established law that when there is any inconsistency between a general and a special law, the special one will prevail.[31]
10. Order- Acquittal or Conviction
As per Section 235, a Judge will pronounce a judgement of acquittal or conviction upon hearing the arguments of both the sides that are of prosecution and defence and on the point of law (if any). However, considering the character of the offender, the circumstances of the case and the nature of the offence, the Judge may as provided under Section 360 decide to release the offender on probation of ethical conduct.
If the accused is acquitted, the acquittal will be done according to the procedure laid down under Section 232, and if he is convicted, it shall be dealt as per the terms of Section 235. In the matter of Narpal Singh v. State of Haryana[32], it was laid down that in case of non-compliance with this provision, the case may be remanded to the Sessions Judge for retrial on the question of sentence only. It is not required by the Judge to hold a new trial altogether; it will be limited to the question of sentence only.
However, if the accused is convicted, then after conviction, the Judge will hear the accused and then pass sentence in accordance with Section 235. The Judge, while passing sentence, shall try to garner all information that relates or influences to the sentence of the accused. The provisions of Section 235(2) are mandatory in nature and should be observed strictly as held by the Court.[33] The purpose of Section 235 is to offer a chance to the accused to adduce evidence of any mitigating circumstances in her own favour. The accused should be explicitly asked for what he desires to state about his sentence and whether he wants to give any proof on his side in order to mitigate his sentence.
On this point, the Supreme Court in the matter of Santa Singh v. State of Punjab[34] ruled that the Judge should first pass a sentence of acquittal or conviction. In case the accused is convicted, he shall be heard on the question of sentence and upon that only the Court shall proceed to pass sentence against him.
Similarly, in Bacchan Singh v. State of Punjab[35], it was held by the Court that Section 235 provides for a bifurcated trial and particularly grants to the accused person a right of pre-sentence hearing which may not be strictly about or in connection with the particular crime under inquiry but may have a bearing on the choice of the sentence.
Conclusion
Various stages in a criminal trial that are discussed above manifest that Legislatures and Courts do realize the importance of “Fair trial” by providing exhaustive mechanisms. This ensures that no innocent is punished, and likewise, no guilty go free. Although the procedure discussed above is sometimes time-consuming, which can be exasperating. It is to be understood that justice rendered instantly can be detrimental and will subsequently lead to injustice. Instead, specific changes should be brought in the Code of Criminal Procedure, 1973 in order to smoothen the procedure.
[1] Ratanlal and Dhirajlal's The Code of Criminal Procedure. [2] Defined under Section 2(c) of Code of Criminal Procedure, 1973. [3] Defined under Section 2(l) of Code of Criminal Procedure, 1973. [4] AIR 1963 SC 447. [5] Defined under Section 2(h) of Code of Criminal Procedure, 1973. [6] Meghaji Godadji Thakore v. the State of Gujrat, 1993 Cr LJ 730 (Guj). [7] Kanik Lal Thakur v. the State of Bihar. [8] Manimohan Ghosh, (1931) 58 Cal 1312. [9] Om Prakash v. State of New Delhi, AIR 1974 SC 1983:1974 Cr LJ 1383. [10] 1997 (1) WLN 33. [11] Ratanlal and Dhirajlal “The Code of Criminal Procedure”, 15'" Edition (Revised by Justice Y.V. Chandrachud, et al), Wadhwa and Company Law Publishers, Nagpur, 2002. [12] With warrant in Non-cognizable cases and without warrant in cognizable cases - Ratanlal and Dhirajlal’s “The Code of Criminal Procedure”, Wadhwa and Company Law Publishers, Nagpur, 17th edition 2004. [13]Available at http://www.legalserviceindia.com/legal/article-432-the-journey-of-a-criminal-case-from-investigation-to-trial.html (Accessed on 5th July, 2020 ). [14] Ibid. [15] Kanubhai Chhaganlal, 1973 Cr LJ 533. Refer, Ratanlal and Dhirajlal's “The Code of Criminal Procedure”, pp. 667-68. [16] Rabindranath Prusty v. Orissa, 1984 Cr LJ 1392 (Ori.). Refer section 167, Cr.P.C. and the Orissa Police Manual vide rule 240 provides guidelines for the escort of the arrestee(s) to and from the thanas or posts to any place, either while being forwarded to the court, or when taken for medical examination, etc. [17] Ratanlal and Dhirajlal’s “The Code of Criminal Procedure”, Wadhwa and Company Law Publishers, Nagpur, 17th edition 2004. [18] According to section 2(r) of Cr.P.C., "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173 of the Code. [19] Pushkraj Deshpande, India: Criminal Investigation For Trial, Mondaq (2018), available at: http://www.mondaq.com/india/x/691420/Crime/Criminal+Investigation+For+Trial (Accessed on 6th July, 2020). [20] Ibid. [21] Available at: http://lawtimesjournal.in/charge-under-crpc/ (Accessed on 5th July, 2020). [22] Ratanlal and Dhirajlal’s “The Code of Criminal Procedure”, Wadhwa and Company Law Publishers, Nagpur, 17th edition 2004. [23] Available at: https://crlreview.in/charge-and-charge-sheet/#_ftn25 (Accessed on 5th July, 2020). [24] Ibid. [25] Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360. [26] Ratanlal and Dhirajlal’s “The Code of Criminal Procedure”, Wadhwa and Company Law Publishers, Nagpur, 17th edition 2004. [27] (1993) Cr.L.J 3932 (cal). [28] Available at: http://ijtr.nic.in/SCOPE%20and%20Significance%20313%20Cr.P.C..pdf (Accessed on 6th July, 2020). [29] Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150. [30] 2010 AIR SCW 5658. [31] The principle is expressed in the maxims “generalia specialibus non derogant” (general things do not derogate from special things). See also, Pulparambil Vasudevan v. Nanganadath Pulparambil Devadasan and Others, Civil Appeal No.8576 of 2014. [32] 1977 AIR 1066, 1977 SCR (2) 901. [33] Ibid. [34] AIR 1976, 1977 SCR (1) 229. [35] AIR 1980 (2) SCC 684.