Criminal Complaints: Claims & Defenses
By: Team LawSkills | 14-08-2017 09:51:57
- Criminal Law in India is divided into two parts
- Substantive Law — dealing with the rights, duties and liabilities of the parties to the suit.
- Procedural Law — dealing with the process of litigation of the suit.
- The Criminal Laws are majorly governed by three
Acts, namely —
- Indian Penal Code, 1860 (IPC) — It is a comprehensive code intended to cover all substantive aspects of criminal law and is applicable to
all offences. However, the offences provided under any other law in India are not covered under this code. The Code provides the legal meaning and whether an act will
constitute a criminal offence or not.
- Code of Criminal Procedure, 1973 (Cr.P.C.) — The procedure of initiating proceeding/prosecution for a criminal offence is provided in
Cr.P.C. The objective behind this enactment is to provide machinery for the punishment of offenders and it also lays down the rules for conducting proceedings against
any offender. For example, how to collect evidence, examination of witnesses, questioning of accused, detention, modus operandi adopted by police and courts, bail,
criminal trial procedure, conviction and the rights of the accused for fair trial are all covered in this Code.
- Indian Evidence Act, 1872 (IEA) — IEA contains provisions regarding rules concerning evidence and applies to all judicial proceedings in or
before a court. It is a detailed law that lays down the manner in which evidence is to be produced in a trial and value of the evidences produced. It also talks about
judicial presumptions, expert and scientific evidences. The whole Act can be divided into three broad categories — (a) what to prove (b) who to prove (c) how to
- In India, the adversarial system is followed,
wherein the burden of proof is mostly on the prosecution, i.e., the State, and the accused is considered innocent unless the prosecution proves that the accused is
guilty of committing the crime beyond any reasonable doubt before the Court of law. However, in certain cases, for example, those related to terrorism - the onus is on
the accused to prove that he is innocent.
- The jurisprudence and prosecution system is
highly developed in India and is supported by judicial precedents. However, there may be certain issues/concerns relating to the execution of the same by police and
implementation by the judiciary. The Supreme Court and the High Courts have been actively safeguarding the rights of the accused. Even Article 21 of the Constitution
talks about the principles of natural justice while protecting the rights, life and liberty of the citizens.
- Some terms pertinent to Indian Criminal
- Bailable Offences —A bailable offence is one in which bail is a matter of right under section 436 of CrPC, subject to fulfillment of certain
conditions. It may either be given by a police officer having custody of the accused or by the court.
- Non-Bailable Offences — A non-bailable offence is one in which the grant of bail is not a matter of right. Here the accused will have to
apply to the court, and it will be the discretion of the court to grant bail or not. The accused can apply for grant of bail under Section 437 and 439 of the
- Anticipatory Bail — A person, apprehending arrest on the wrongful accusation of committing a non-bailable offence, can apply to a competent
court, under section 438 of CrPC, for a direction to the police to immediately release such them on bail in the event of arrest. However, the grant of anticipatory
bail is discretionary and the Court considers many other factors such as nature and gravity of accusations, previous record of the accused, etc.
- Cognizable Offence —Such offences are serious in nature, like murder, rape, kidnapping, etc., and thus, the police can make an arrest
without a warrant. Cognizable offence is defined under Section 2 (c) of CrPC.
- Non-Cognizable Offence- Such offences, defined under Section 2 (l) of Cr.P.C, are not as serious in nature and thus, the police cannot make an
arrest without warrant. Forgery, assault, etc., are some examples of non-cognizable offences.
- First Information Report — It 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.
- All offences (bailable, non-bailable, cognizable
and non-cognizable) provided under IPC are mentioned in the Table 1 of Schedule 1 of Cr.P.C.
- Table 2 of Schedule 1 of Cr.P.C. discusses about the classification of offences provided for under other laws. For offences not explicitly classified, the general
rule is as follows —
- Offences punishable with imprisonment for less than 3 years or with fine only are non-cognizable and bailable offences.
- Offences punishable with imprisonment for 3 years or more are cognizable and non-bailable offences.
- In order to initiate a criminal investigation or
enquiry, the following steps can be taken—
- Section 156(1) of Cr.P.C. — A Police Officer can investigate a criminal case, even without the orders of the Magistrate, on receipt of
complaint, report, or knowledge of the commission of a cognizable offence.
- Section 190 of Cr.P.C. — Where a person is aggrieved due to inaction of the police, a criminal complaint can be filed before a Magistrate
for taking cognizance of such offence, whereafter, the Magistrate can either commence with the enquiry himself or, under 156 (3), order the Police to take the FIR and
- Section 155 (2) of Cr.P.C. — No police officer shall investigate a non-cognizable case without the order of a magistrate having power to try
the case or commit it for trial.
- In case of a non-cognizable offence also, a criminal complaint can be filed before a competent court under section 190 (1) (a) of Cr.P.C. so as to begin with the
- The following flowchart is an attempt to make
the readers easily understand the criminal prosecution procedure followed in India.