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Cr.P.C

FIR (First Information Report)

First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report. The information given to the Police Officer for registration of a case must be authentic. It should not be gossip but should be traced to an individual who should be responsible for imparting information. It may be hearsay but the person in possession of hearsay should mention the source of information and take responsibility for it. An irresponsible rumour should not result in registration of F.I.R.

An information given under sub-section (1) of section 154 Cr.P.C is commonly known as first information report though this term is not used in the Criminal Procedure Code (in short Cr.P.C). It is the earliest and the first information of a cognizable offence recorded by an officer-in-charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under section 169 or 170 Cr.P.C, as the case may be, and forwarding of a police report under section 173 Cr.P.C. It is quite possible and it happens not infrequently that more information than one are given to a police officer-in-charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in section 154 Cr.P.C. Apart from a vague information by a phone call, the in formation first entered in the station house diary, kept for this purpose, by a police officer-in-charge of a police station is the first information report- FIR postulated by section 154 Cr.P.C. All other information made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the first information report and entered in the station house diary by the police officer

or such other cognizable offences as may come to his notice during the investigation, will be statements falling under section 162 Cr.P.C. No such information/statement can properly be treated as an FIR and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of Cr.P.C.Take a case where an FIR mentions cognizable offence under section 307 or 326 I.P.C and the investigating agency learn during the investigation or receive fresh information that the victim died, no fresh FIR under section 302 IPC need be registered which will be irregular; in such a case alteration of the provision of law in the first FIR is the proper course to adopt.

Let us consider a different situation in which H having killed W, his wife, informs the police that she is killed by an unknown person or knowing that W is killed by his mother or sister, H owns up the responsibility and during investigation the truth is detected, it does not require filing of fresh FIR against H the real offender who can be arraigned in the report under section 173(2) or 173(8) of Cr.P.C, as the case may be

Purpose and Object :

The purpose of registration of FIR is manifold that is to say

(1) to reduce the substance of information disclosing commission of a cognizable offence, if given orally,into writing.

(2) If given in writing to have it signed by the complainant.

(3) To maintain record of receipt of information as regards commission of cognizable offences.

(4) To initiate investigation on receipt of information as regards commission of cognizable offence.

(5) To inform Magistrate forthwith of the factum of the information received.

what is the power of FIR

The police can register FIRs only for cognizable offences — where the police have the power to arrest without a warrant. Examples of cognizable offences include murder, rape, theft, attack, etc

What is the Rule of FIR

Anyone who knows about the commission of a cognisable offence, including police officers, can file an FIR. As described in law: When information about the commission of a cognisable offence is given orally, the police must write it down.

What is the process after FIR?

Once an FIR has been filed the police are legally bound to start investigating the case. The process of investigation includes, but is not limited to, collecting evidence, questioning witnesses, inspecting the crime scene, forensic testing, recording statements and so on.

FIR Quashing on the basis of Compromise:

The High Court can Quash the FIR at any stage on the basis of compromise. The compromise can be entered into by the Complainant and the accused. In such case, a joint petition under section 482 of CR.P.C shall be filed by both the parties.

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.

Why FIR is filed?

An FIR can be filed by anyone who possesses information about a cognizable crime being committed. Regardless of the severity of the crime, the police officer in charge must file an FIR as long as it is a cognizable offence.

for giving false information:

Punishment for giving false information to the police is dealt with by sections 182, 203 & 211 of I.PC. Even if such information is not reduced to writing under Section 154(1) of Cr.P.C, the person giving the false information may nevertheless be punished for preferring a false charge under section 211 of I.P.C. A police officer refusing to enter in the diary a report made to him about the commission of an offence, and instead making an entry totally different from the information given, would be guilty under Sections 166 A and 177 .

Eligibility for filing FIR

There is no such hard and fast rule as to the eligibility of the person filing the FIR. Anyone can give information about the commission of a cognizable offense, and it is not at all necessary that the aggrieved of such an offense can only lodge the FIR. It can even be lodged by the Police officer who comes to know about the commission of a cognizable offense. However, it can be summed up as below:

  • You can lodge an FIR if you are the victim of a cognizable offense,
  • If you have information about the commission of a cognizable offense that should not be hearsay information, and
  • If you have witnessed the commission of a cognizable offense.

Therefore, filing an FIR is very important for a case related to a cognizable offense since it sets the criminal justice system in motion. The Police take up the investigation of a case only after an FIR is lodged. However, the Police may not investigate the case even after filing an FIR if they do not find the case severe or if there is reasonable ground to initiate the investigation. However, under Section 157 of Cr.P.C, the Police have to record the reason for not initiating the investigation.

Types of FIR

There are various types of FIR. The following are some of the most important ones:

  1. General FIR

A general FIR is one filed by the aggrieved party or the first party against another party in a general transaction at the nearest police station.

  1. Zero FIR

Zero FIR is given the number “0” (zero) instead of a serial number, hence the name. It is recorded regardless of the location where the crime was committed. After registering Zero FIR, the police station transmits it to the jurisdictional police station where the offence took place. When the appropriate police station receives the Zero FIR, it is assigned a serial number and turned into a regular FIR. 

  1. Cross FIR

The other party (accused) may file an FIR against the complainant after the FIR is filed. This is called a cross FIR or counter FIR.

The filing of the counter FIR may be motivated by personal animosity or any malicious purpose to perplex the Court, or it may be used as a weapon to negotiate a future settlement and entice the complainant to retract the initial FIR.

  1. Multiple FIR

Multiple FIR is when aggrieved parties file multiple FIRs with the same cause of action. Multiple FIRs will be submitted only if the subsequent informer accounts for a completely new version of the alleged occurrence.

Importance of FIR

The main goal of an FIR is to set the criminal law in motion and to gather information regarding alleged illegal behaviour so that appropriate steps can be taken to track down and prosecute the perpetrators. As a result, Sec. 154 has three objectives:

  • To notify the Magistrate and the District S. P., who are in charge of the district’s peace and safety, of the crimes recorded at the police station;
  • To inform the judicial officers who will ultimately hear the case what information was released immediately after the occurrence and what documents were used to begin the inquiry,
  • To protect the accused from future modifications or any other additions.

procedure to file an FIR in the police station:

To file an FIR in the police station, consider the following steps.

Step 1: Go to the nearest police station and tell them everything you know about the situation.

Step 2: You can either tell the officer about the situation verbally, for example, what happened? How did you figure that out? Alternatively, jot down the data on your own.

Step 3: If you tell the police something verbally, the duty officer must write it down and record it in the General or Daily Diary.

Step 4: You must bring two copies with you if you’re filing a written complaint. One will be given to the duty officer, while the other will be returned to you.

Step 5: After you submit the information, the police will review all the details.

Step 6: You will then read the information that the police have recorded.

Step 7: You must sign the FIR after the police have recorded the information.

Step 8: Only sign the report after double-checking that the information recorded by the police matches the information you provided.

Step 9: You will be given a free copy of the FIR with an FIR number, the date of the FIR, and the name of the police station.

Make certain that both copies are stamped. A DD Number, or Daily Diary Number, is stamped on the FIR. It’s proof that your complaint was received

Conditions that must be met to file FIR:

The following requirements must be met to qualify as an FIR under Section 154:

  • It is information on the commission of a criminal offence;
  • It is provided orally or in writing by the informant;
  • It should be reduced to writing by the officer in charge of a police station or under his direction if presented orally, and it should be signed by the person giving it if delivered in writing or reduced to writing
  • The substance of the information shall be recorded in a book in the manner prescribed by the State Government. (‘General Diary’)
  • There must be something in the form of a complaint or accusation regarding the occurrence of a cognizable offence for the information to be classified as an FIR

Conclusion

FIR (First Information Report) is a document where the first information about the commission of a cognizable is recorded. It is important for both the person filing it and the Police. Its registration sets the criminal law into motion, and the Police start investigating the crime allegedly committed. The statement may be registered either orally or in writing. If the information is given orally, the Police officer must produce the orally given statement in writing and get it either signed or marked off the thumb impression of the informant.

TRAIL AND ACQUITTAL

Meaning of Trial

Trial is the process in a court of law where a judge or a magistrate listens to evidence and decides if somebody is guilty of a crime or not. A trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. There are 4 types of trial of offenses in the Indian legal system namely Trial by Court of Session, Trial of Warrant case, Trial of Summons case, Summary trials.

The term “trial” is not defined anywhere in the Code of Criminal Procedure, however, it means a commonly understood stage of trial that begins after the preparation of the charge and ends with conviction or acquittal.

  1. Sessions Trial or Trial by court of Session: – If the offense committed is punishable with more than seven years of imprisonment or Life imprisonment or Death, the trial is to be conducted in a Sessions court after being committed or forwarded to the court by a magistrate.
  2. Warrant Trial or Trial of Warrant cases: – Warrant case includes offence punishable with the death penalty, imprisonment for life and imprisonment exceeding two years.  A trial in a warrant case begins either by filing an FIR in a Police Station or by filing it before a Magistrate.
  3. Summons Trial or Trial of Summons cases: – If the offense committed is punishable by imprisonment less than two years, it is treated as a summons case. In relation to this crime, it is not necessary to frame charges. The magistrate issues summons under section 204 (1) (a) of Cr.P.C, 1973. “Summons case” means a case related to the offense, not a case of a warrant.

4. Summary Trials: – The trials in which cases are disposed of rapidly and a simple procedure is followed and recording of such trials are done summarily. In this trial only small cases are taken up and complex cases are reserved for summons and warrant trials. The legal provisions for summary trial are given under section 260-265 of Cr.P.C, 1973.

Acquittal

Acquittal in general terms means that the accused is innocent and has not committed the offense he/she was accused of. The decision of acquittal is given by the judge after inspecting all the evidence and hearing arguments of the defense and the prosecution. It implies that no evidence has been brought up to prove that the accused has carried out an offense as per the Code of Criminal Procedure, 1973. 

DAMAGE & Damages

What is meant by damage ?

The term damage in legal parlance refers to the loss or any form of injury or disadvantage caused to a particular individual through natural means, and accident or intentional actions with motives can be termed as damage.

Damages might be associated with other terms that are used in legal parlances like compensation or indemnity. Damages can be awarded to people in cases of loss suffered to property, medical malpractice, the loss suffered in income or any other legal violation. An essential feature of damages is tangibility, but even this feature might differ from case to case depending on the nature of the damage sustained.

the basic difference between the two terms compensation & damage  depends on the facts of the case, compensation is always fixed on basic principles under Sec. 73 of the Indian Contract Act, 1872 and damages are ascertained based on varying circumstances unique to the instance prevalent in a particular case.

Damage

  1. The loss caused by one person to another or to his property, either with the design of injuring him, with negligence and carelessness, or by inevitable accident.
  2. The loss which some one has sustained, and the gain which he has failed to make. e.g., by tempest, earthquake, or other natural cause, the loss must be borne by the owner.stances unique to the instance prevalent in a particular case.

Damages


  1. Financial compensation is awarded to someone who suffered an injury or was harmed by someone else’s wrongful act.
  2. The indemnity is given by law and is to be recovered from a wrongdoer by the person who has sustained an injury, either in his person, property, or relative rights, in consequence of the acts of another.

Damages are given either for breaches of contracts or for tortious acts.

Damages for breach of contract may be given, for example, for the non-performance of a written or verbal agreement, or of a covenant to do or not to do a particular thing.

As to the measure of damages, the general rule is that the delinquent shall answer for all the injury which results from the immediate and direct breach of his agreement, but not from secondary and remote consequences.

Damages for tortious acts are given for acts against the person, such as an assault and battery against the reputation, e.g., libels and slander; against the property, e.g., trespass, when force is used; for the consequential acts of the tort-feasor, e.g., when a man, in consequence of building a dam on his own premises, overflows his neighbor’s land; against the relative rights of the party injured, e.g., for criminal conversation with his wife.

Damages for torts are either compensatory or vindictive.:

  • Law grants damages by way of restitution or compensation and not by way of punishment. 
  • Damages are awarded in terms of money.
  • The injured party can claim damages through a court of law.
  • Damage is not punishment but compensation for legal injury.
  • Awarding damages is the common law remedy. 
  • Damages include compensation & other losses. Sometimes interest also. 
  • The object of damages for breach of contract is to put the injured party in the same financial position. This is also called the doctrine of restitution. 

Kinds of damages 

 1)   General or substantial or ordinary. 

2 )   Specific or particular damages

3 )    Vindictive or exemplary. Or punitive 

  4)    nominal damages.

General damages are those which arise naturally in the ordinary course of events from the breach of contract. 

These damages constitute the direct loss suffered by the injured party. 

These are paid for the proximate cause of breach of contract. 

Rule Of Hadley vs Baxendale evaluate.

It is recoverable from the promisor. 

Specific or particular damages

Damages that arise from unusual circumstances known to both the parties to the contract are called special damages. Parties responsible for the special losses they made were known to the other party at the time of the making of the contract.                                                                  

Vindictive or exemplary. Or punitive 

Punitive damages are awarded the intention of punishing the default action party for not doing the same in the future. These are quite heavy in amount. These are not ordinarily awarded for breach of contract.

Ex: breach of promise to marry 

dishonor of cheque.

Nominal damages or contemptuous damages 

These are quite small in amount 

These are neither compensatory nor punitive

 The measure of damages (principles regarding damages )

  • The nature & extent of the injury.
  • Whether the liability of the defendant is vicarious or not
  • date of calculation 
  • Cost of decree

           The relationship between the plaintiff and the defendant

  • Actual loss date of calculation 
  • Loss arising in the usual course of things 
  • Same financial position 
  • Duty to mitigate the loss
  • Damage agreed upon in advance in case of breach
  • Mental Pain & suffering
  • Default in the payment of money 
  • Difficulty in the calculation.

Types of damages 

1 ) Liquidated damages

2)   Unliquidated damages 

Liquidated damages ;(The sum is fixed in advance and written into the contract.)

Section 74 deals with liquidated damages, relating to stipulated damages. Thus, there has to be a breach of the contract In order for the plaintiff to claim damages. In cases where there may be a reasonable revocation of the contract without any breach of the terms of the contract, the claim for damages should not arise as there is no breach per se.

Liquidated damages, also referred to as liquidated and ascertained damages (LADs), are damages whose amount the parties designate during the formation of a Contract for the injured party to collect as compensation upon a specific breach (e.g. late performance). This is most applicable where the damages are intangible, such as a failure by the contractor on a public project to fulfill minority business subcontracting quotas.

The purpose of a liquidated damages clause is to increase certainty and avoid the legal costs of determining actual damages later if the contract is breached. Thus, they are most appropriate when (a) the parties can agree in advance on reasonable compensation for breach, but (b) the court would have a difficult time determining fair compensation at the time of the breach. Under the common law, liquidated damages may not be set so high that they are penalty clauses rather than fair compensation. Courts have no power to reduce or enhance the amount. these damages are t obe granted in full, irrespective of the extent of the loss.

Unliquidated damages

 Unliquidated damages are damages that are payable for a breach of contract, the exact amount of which has not been pre-agreed

Section 73 deals with actual damages resulting from infringement of the contract and the injury arising from such infringement which is in the nature of unliquidated damages since such damages are granted by the courts on the basis of an evaluation of the loss or injury caused to the party against which the infringement occurred.

In order to award unliquidated damages to the plaintiff, the court opts for a compensatory approach:

  • Recover the loss incurred by the complainant
  • Return the complainant to the position he had before the breach
  • Minimize penalizing the respondent
  • Avoid enhancing the complainant’s position over and above where it would have been if the breach did not take place

The money value of damage that has not been determined in the contract , it is paid in case of contract. 

The court decides the quantum of damages & compensation.

The damages, which can be fixed after the tortious liability arose, are called unliquidated damages. 

Prosecution – Cognizance – Registration of cases

Prosecution 

The word prosecution in Art.20 (2) of Constitution of India means judicial proceedings before a court or a legal tribunal.  It cannot have reference to departmental or disciplinary proceedings taken for inflicting departmental penalty or punishment on an officer belonging to the department for any misconduct. 

Prosecution means the institution and carrying on of the legal proceedings against a person.  A crime is a wrong not only against the individual victim but also against the State. Hence the State take responsibility of prosecuting the accused person in cases of serious offenses.  The Government appoints prosecutors for conducting prosecution and other criminal proceedings on their behalf in the courts.  The public prosecutor does not represent the police but the Stte.it pimps every prosecution for an offense whether it is initiated on a private complaint or  police report.

Cognizance

‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and taking ‘cognizance of offenses’ means taking notice, or becoming aware of the alleged commission of an offense. 

The Code of Criminal Procedure has not specified what cognizance is. Literally, it means ‘to be aware of’ but when used in respect to a trial or a magistrate it means ‘Judicial notice of an offense’ Actually, taking cognizance does not require any formal action by the judge or magistrate, because as long as a magistrate turns his mind to the alleged crime of an offense for the purpose of taking further actions under the Code of Criminal Procedure, such as summoning an accused on the basis of the information available for prosecution or trial, cognizance can be said to have been taken.

Any First class Magistrate and any Second Class Magistrate can acknowledge any offense. Section 190-199 of the code defines the procedures by which various criminal courts are entitled to take cognizance of offenses, and the restrictions under which they are entitled.

Registration of cases

The code of criminal procedure defines the term ‘complaint’ as any allegation made orally or in writing to a Magistrate. It’s done with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offense, but does not include a police report.

When the Magistrate issued the process against the accused, he cannot take it back. The Code of Criminal Procedure does not provide the power of review so the Magistrate could not review its process or cancel the summon or warrant.

A magistrate on receiving the complaint may not take cognizance of the offene complained of He may or may  not take cognizance of the offense complained of.  He may look into the complaint and send it to the police for investigation under Sec. 156(3) of CR.P.C.

A Magistrate with whom a complaint is filed, shall examine the complainant and also witnesses on oath. The contents in the compliant shall also examined and reduced in writing in a report. The report shall have signature of complainant, witnesses and also the Magistrate. Provided that, when the complaint made in writing, the Magistrate need not examine the complainant and the witnesses:

  • if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
  • if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate transfers the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

Registration of cases

The code of criminal procedure defines the term ‘complaint’ as any allegation made orally or in writing to a Magistrate. It’s done with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offense, but does not include a police report.

When the Magistrate issued the process against the accused, he cannot take it back. The Code of Criminal Procedure does not provide the power of review so the Magistrate could not review its process or cancel the summon or warrant.

A magistrate on receiving the complaint may not take cognizance of the offene complained of He may or may  not take cognizance of the offense complained of.  He may look into the complaint and send it to the police for investigation under Sec. 156(3) of CR.P.C.

A Magistrate with whom a complaint is filed, shall examine the complainant and also witnesses on oath. The contents in the compliant shall also examined and reduced in writing in a report. The report shall have signature of complainant, witnesses and also the Magistrate. Provided that, when the complaint made in writing, the Magistrate need not examine the complainant and the witnesses:

  • if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or
  • if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:

Provided further that if the Magistrate transfers the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

WHITE COLLAR CRIMES

ECONOMIC OFFENSES (WHITE COLLAR CRIMES)

The concept of white-collar crime found its place in criminology for the first time in 1941 when Sutherland first published his research paper on white-collar criminality in the American sociological review. He defined white-collar crime as a crime committed by persons of high social status in the course of their occupation. e.g. -misrepresentation through fraudulent advertisement, infringement of patents, copyrights, and trade-marks, a publication of fabricated balance sheets and profit and loss account of business,etc. 

“White-collar crimes are committed by persons of status, not for need but for greed” sir Walter reckless 

White Collar Crimes are committed by people who are involved in otherwise lawful businesses and cover a wide range of activities. The perpetrators hold respectable positions in the communities unless their crime is discovered. The laws relating to white-collar crimes depend upon the exact nature of the crime committed.

Types of White Collar Crimes.

Extortion:

When a person illegally obtains someone’s property by actual or threatened force.

Insider-Trading:

When someone uses the confidential information to trade in shares of publicly held corporations.

Money-Laundering:

it means the concealment of origin of illegally obtained money.

Tax fraud:

It means evading tax by providing wrong information in tax forms or illegally transferring property in order to avoid tax etc.,

OFFENSE

What is an offense?

An offense is a crime that breaks a particular rule/law and requires a particular punishment.

An offense is a transgression of the law, by action or omission. That means there may be some cases where the law requires you to abstain or refrain from performing a particular act. There may also be cases where the law requires you to take a positive action, failing which you may be held liable for the offense

Civil offenses are against private persons (individuals like you and me) but criminal offenses are against the State. The State, represented by the Prosecutor, will argue the case against the defendant. So now, the prosecutor will make the case against the suspect, by submitting the issue sheet (pleadings) and the necessary evidence.

What is the difference between crime and offense?

Every society has a system of written rules and regulations to deal with people who deviate from normal, accepted behavior. People who violate these rules are treated as criminals and punished according to the enactment.

Offense:  any act that violates civil or criminal law. This violation of such a nature brings harm to the society and makes the culprit liable to serve a sentence in prison with a possible financial penalty.

Sec. 2(n) of Cr.P.C Act defines the word “  Offense “ to mean any act or omission made punishable by any law for the time being in force and sec.40 of the I.P.C which states that ‘offense denotes a thing made punishable by the code.

CLASSIFICATION OF OFFENCES

An offence is an illegal act or crime punishable in the eyes of law, The Code of Criminal Procedure Code, 1973 has recognised offences under three categories:-

  • Cognizable & Non-Cognizable offence
  • Bailable & Non-Bailable offence
  • Compoundable & Non-Compoundable offence
  1. COGNIZABLE AND NON- COGNIZABLE OFFENCE

COGNIZABLE OFFENCE

A cognizable offence is an offence where the police officer in accordance to the first schedule or under some other law can convict an accused without a warrant, usually, these offences are of heinous nature like murder, rake, kidnap, theft, dowery death…etc. In such offences the accused must be produced before the court in the stipulated time.

It is essential to file a First Information Report (FIR), under section 154 Cr.P.C, it mandatory for a police officer to note the commission of a cognizable offence in writing, which gives him the opportunity to collect evidence. In-State of Haryana v/s Bhajan Lal, the supreme court held that the FIR must contain a piece of information disclosing the commission of the cognizable offence.

It is the duty of the police officer to lodge an FIR and investigate the same, The courts have no power under section 482 Cr.P.C to interfere with the investigation by the Police or staying of arrest in cognizable cases.

EXAMPLES OF COGNIZABLE OFFENCE

  • Hiring or engaging persons to take part in an unlawful assembly or taking part in itself
  • Negligently or deliberately engaging into an act which is likely to spread infection of any dangerous disease
  • Counterfeiting Indian coin, selling false weights or measures for fraudulent use
  •  Rioting armed with dangerous weapons

BAIL OF COGNIZABLE OFFENCE

  • After investigation, if the charge sheets turn out to be against the accused then the magistrate can order an arrest.
  • During the Trial, bail application can be filed against the concerned magistrate, In appropriate cases, interim bail can be granted pending disposal of the final bail application, since arrest or detention can cause harm to a person’s reputation causing irreparable loss
  • Cognizable offences are both bailie and non- bailable.

NON- COGNIZABLE OFFENCE

Non- cognizable offences are those where a police officer cannot arrest the accused without the warrant, as listed under the first schedule of Indian penal code. These are usually not as serious as cognizable offence such as  forgery, cheating, defamation,..etc

In such offences, FIR is lodged to the magistrate after which the concerned police officer initiates the investigation. A charge sheet is further filed by the police officer which is followed by the trial and final order of arrest if the case has been made out. Any investigation without the requisite permission or order by the magistrate would be one without the jurisdiction[5]. Under section 155 of CrPC, if two or more offences are committed and one of them is cognizable then the officer will not be debarred from the further investigation as well as arrest can take place. 

EXAMPLES OF NON- COGNIZABLE OFFENCE

  • A public servant disobeying law with intent to cause harm to any person.
  • Bribing during elections
  • The false claim in a court of justice
  • Buying a slave
  • Misappropriation of movable property

BAIL OF NON-COGNIZABLE OFFENCE

  •  If the case is fit for trial,  accused is put forward the magistrate and if the case turns out against him then arrested.
  • In Hamid v/s Rashid alias, in case of addition of serious non-cognizable offence is required to surrender and apply for bail for newly added offences to save him from arrest.
  • The non-cognizable offence is bailable

2. BAILABLE OFFENCE AND NON- BAILABLE OFFENCE

BAILABLE OFFENCE

A Bailable offence is a one where bail is an absolute and indefeasible right, it could be granted by the police officer in whose custody he is or concerned magistrate. Such offences are being a member of an unlawful assembly, giving false evidence in a judiciary, causing a disturbance in an assembly..etc. In Rasiklal v/s Kishor, it was held that under section 436 of the code a bailable offence is entitled to be released on bail pending his trial. The offender is released on the basis of a “Bail Bond”.

BAIL UNDER BAILABLE OFFENCE

Bail can be granted on the basis of “Bail Bond” which contains the following conditions :-

  • Not to leave the territorial jurisdiction without the permission of the court.
  • Shall be present before the police whenever required to do so.
  • Not to tamper with the evidence. 

In Public prosecutor v/s Raghuramaiah, it was held under section 496 of the code, it is envisaged to realize the accused person on bail, further, the bond or sureties will be decided by the court itself. The court may refuse to grant bail to a bailable offence if the offender does not comply with the bail bond.

NON BAILABLE OFFENCE

A Non- bailable offence is the one where bail is not the matter of right, bail can only be granted in discretion of the court, such offences usually include murder, rape..etc. In State of Maharastra v/s Ramesh Taurani, it was held that along with other considerations, nature and gravity of the offence are essential to decide whether bail seal be granted to a Non- Bailable offence. Here,“ Bail Bond “ is used to grant bail along with more stringent conditions than of bailable offence. In state v/s Caption Jagjit Singh, it was held that a non – bailable offence cannot be granted bail if convicted for life imprisonment or the death sentence.

If the accused has been arrested for two offences the. He must get a bail bond for both the offences and satisfy conditions under them; At any point, if at any point the conditions of a bail bond are fulfilled then the bail will be forfeited.  In such conditions any Appel can be made against a forfeited order, Appel shall lie against the same judge and court where the order of forfeiture was passed.

BAIL UNDER NON- BAILABLE OFFENCE

  • The application of bail is granted before the magistrate conducting the trial.
  • Under section 497 of CrPC, it well settled that a judge has the discretion to grant or refuse bail to a person accused of a non – bailable offence.
  • He may be refused of bail if attempted to abscond or is doubtful of his credentials. 
  • Accused may apply for anticipatory bail to either high court or session court in order to get direction under section 438 of CrPC if he thinks he might get arrested. Anticipatory bill id different from that of normal bail, it is issued before an arrest takes place and becomes operative after the arrest has taken place.

Anticipatory Bail

It is applicable on bailable and nonbailable offences, the power given under anticipatory bail is privileged to a person who is under the apprehension of arrest thus when abused it can be taken back under section 439 of CrPC. In K. Gajendra Baidu v/s State of A.P, it was held that granting bail is necessary as at times influential persons implicate their rivals into false cases.

3. COMPOUNDABLE OFFENCE AND NON- COMPOUNDABLE OFFENCE

COMPOUNDABLE OFFENCE

The compoundable offence is where the complainant can drop his charges and enter into a compromise, the compromise must be Bonafide and not something to which he is not entitled, the court grants permission when convinced that the offence is entirely personal in nature and therefore does not affect public tranquility and compromise would bring peace as well as the secure end of justice, in such cases pursuing prosecution would be waste of time and energy.

Section 320 of CrPC splits up compoundable offences into two:-

  • Taking permission of the court is not necessary- such as criminal trespass, causing her, defamation…etc
  • Taking permission of the court is necessary:-  There are offences where the complainant has to take the permission of the court to drop the charges, the permission is usually required for offences grievous in nature and a bad example for the society such as voluntarily hurting someone with dangerous weapons, intentional alteration or destruction of valuable property during delivery…etc
  • Application for such offences shall be made before the same court where the trial is proceeding, once the charges are drop, the case is treated as the accused has been acquitted of the charges. 

NON- COMPOUNDABLE OFFENCE

A Non- compoundable offences cannot be compounded, can only be quashed as they are generally of heinous and criminal nature, thus the accused cannot be allowed to go Scot-free. All offences not mentioned in section 320 of Cr.P.C fall under Non- compoundable offenses. The complaint is generally filled by: the state” like police..etc hence the question to drop charges does not arrive, even the court does not have the power to compound such offences , the trial ends with acquittal or conviction of the offence, with the final order, the criminal trial ends. 

REMAND & CUSTODY

REMAND

 The word remand generally means to return or to send back but, in the legal world, it has two different meanings.

  1. It means to send the accused back in the custody of the competent authority and
  2. It means to send back the cases from the appellate court to the lower court.

Remand is the act of sending a prisoner back into custody, specially in order that further evidence on the charge may be obtained.  Remand means to send a prisoner back to police custody, after preliminary or partial hearing before a court or magistrate, to be kept until the hearing is resumed or the trial comes on.Sec. 309 contemplates a remand to judicial lockup and not police custody.

The power of a court to remand an accused to custody is governed by a number of provisions of the Cr.P.C, these being Sections of these 167(2), 209(b) and 309(2). Each provisions is independent of each other and come into play at different stages of the criminal trial. The remand under Section 167(2) relates to the stage of investigation and is ordered for furthering the investigation and can be either in judicial custody or police custody. The remand under S.209(b) relates to the stage when the magistrate commits the case, he can remand the accused to the custody during and until the conclusion of the trial subject to the provisions of bail under the code and finally remand under S.309(2) relates to a stage after cognizance and can only be sent to judicial custody.

 CUSTODY

Custody relates to the possession or control of the certificates as physical objects. Custody means judicial or penal safe keeping. As per Sec. 167 of Cr. P.C,if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution

CUSTODY

Custody relates to the possession or control of the certificates as physical objects. Custody means judicial or penal safe keeping.As per Sec. 167 of Cr.P.C if the investigation into an offence is not completed within 24 hours and the accused is in custody, the concerned police officers shall forward the accused to the nearest Judicial Magistrate. If the accusations made are well-founded, the accused shall not be released on bail unless his/her detention is authorized by a magistrate from time to time. In the case of a woman under 18 years of age, the detention shall be in a remand home or a recognized social institution.

TYPES OF CUSTODY

Police custody

Police custody means that the physical custody of the accused is with the Police, the accused is lodged in a lock-up of a police station. After an FIR is lodged for a cognizable offense (provides punishment for more than three years), the accused is arrested by the police to prevent the tampering of evidence or influencing the witnesses. 

Under Sec. 57 of Cr. P.C , the police officer cannot keep the accused for more than 24 hours, irrespective of whether the investigation is complete or not. The accused is produced before the concerned Magistrate within 24 hours of the arrest, the police seek his remand to police custody in order to complete the investigation expeditiously, the police decides for how long the accused must be kept in custody, which cannot exceed a period of 15 days.

Judicial Custody

Judicial custody is there in case of serious offenses, where the Court may accede on the request of the police to remand the accused in judicial custody after the police custody period expires, that is to prevent the tampering of evidence or witnesses.

It is mandatory in criminal cases to file a chargesheet within 90 days. If there is failure in the filing of a charge-sheet within 90 days, the bail is normally granted to the accused. But, in case if heinous offenses, like rape or murder, the accused is generally kept in a judicial custody (that is kept in jail under the custody of the court) for a longer duration despite the filing of a chargesheet, in order to not influence the process of trial.

The judicial custody may be for a period of 60 days for all other crimes, if the Court finds it convincing that sufficient reason exists, following which the suspect or accused may be released on bail.

PROBATION OF OFFENDERS

probation means ‘I prove my worth’ and is derived from the Latin word ‘ probare‘ meaning ‘tested’ or ‘proved’. The legal concept of probation is conditional suspension of sentence and it is a part of the decision making process of the judge at the time of sentencing. Thus probation is a method of penal non-institutional treatment of offenders developed as an alternative to imprisonment out of a realization that short-term imprisonment is harmful and ineffective. There is no precise legislative definition of the term probation. Neither the Criminal Procedure Code 1973 nor the Probation of Offenders Act 1958 define what probation means. Both these enactments use the words „release on probation of good conduct‟ without actually defining the term.

The object is to reform and reintegrate offenders without submitting them to the stigma of prison life. It is applicable against those offenders who are redeemable such as young offenders and first-time offenders where criminal tendencies are not deep-rooted.

The Probation of Offenders Act 1958 and Criminal Procedure Code – Sec..360 and 361. In Probation sentencing, when any convicted person is found fit to be released on probation the court may not pronounce any sentence against him but he may be released on probation for good conduct. In such a situation if the person violates the terms and conditions of probation or he is not reformed, the court then considers the sentence to be imposed

Power of court to release certain offenders on probation of good conduct

Section 4 of the Act deals with the power of the court to release certain offenders on probation for good conduct. An offender may be released on probation if the following conditions are fulfilled:

 (i) Any person is found guilty of having committed an offense; 

(ii) The offense so committed must not be punishable with death or imprisonment for life; 

(iii)The court by which the person is found guilty is of the opinion that it is expedient to release him on probation of good conduct;

 (iv)The court may form such an opinion having regard to (i) the circumstances of the case, (ii) the nature of the offense, and (iii) the character of the offender.

 If the above conditions are fulfilled, the court may, instead of sentencing him at once to any punishment, direct that the offender should be released on entering into a bond to appear and receive a sentence when called upon during the period of probation. The bond so directed may be taken with or without securities. The period of probation will be such as the court may direct but it will not exceed three years.