Pre Trial Procedure and Inquiry
Pre Trial Procedure and Inquiry
INQUIRY
I. INTRODUCTION
Investigation
Arrest
Booking
Bail
Arraignment
Plea Bargaining
Preliminary Hearing
Ironically, Code has not defined the term “Arrest”1. Every deprivation of
liberty or physical restraint is not arrest. Only the deprivation of liberty by legal
authority or at least by apparent legal authority, in a professionally competent and
adept manner amounts to arrest. Thus, we can say arrest means ‘apprehension of
a person by legal authority resulting in deprivation of his liberty’.
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. It is generally a complaint
lodged with the police by the victim of a cognizable offence or by someone on his/
her behalf. Anyone can report the commission of a cognizable offence either orally
1 As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of
the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by
legal authority, especially, in response to a criminal charge.”
or in writing to the police. The statement made by a witness who initiated the
proceedings when reduced to writing is the F.I.R. Genuineness or credibility of the
information is not a condition precedent for registration of the case.9 Information
lodged with Police disclosing cognizable offence, the officer-in-charge of a Police
station is statutorily obliged to register a case.10 F.I.R. is the information which is
given first in point of time.
It must be an information
The concept of bail, which is a basic part of the Indian criminal jurisprudence
and it is well recognised principle among all the judicial systems of the world. Bail,
in law, means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to
legal authority.
where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the
application forthwith or issue an interim order for the grant of
anticipatory bail.
The High Court or the court of the session may include such conditions in
the light of the facts of the particular case, including:
a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts
to the court or to any police officer;
a condition that the person shall not leave India without the previous
permission of the court.
Arrest can be made by police officer, Magistrate or any private person, like
you or me can also arrest a person but that can made only in accordance with
some legal provision permitting such arrest. The code exempts the members of
Armed forces from being arrested for anything done by them in discharge of their
official duties except after obtaining the consent of the government (Sec. 45).
Any private individual may arrest a person only when the person a
proclaimed offender and the person commits a non bailable offence and
cognizable offences in his presence (sec. 43). Any magistrate (whether Executive
or judicial) may arrest a person without a warrant (sec. 44). Under section 41,
Arrest by police officer can be made without warrant only in cognizable offences
(sec.2(c)) and with warrant in non- cognizable offence (sec 2 (l)). Cognizable
offences are of more serious nature as compare to non cognizable offences i.e.
Murder, kidnapping, theft, etc.
Sec. 46 describes the mode in which arrests are to be made (whether with
or without warrant). In making an arrest the police officer /other person making the
same actually touches or confines the body of the person to be arrested unless
there be a submission to custody by words or action.
FIR is not substantive piece of evidence. Therefore, even if the written report
filed has not been duly proved the prosecution case will not fall on that ground
alone and the court has to consider the substantive evidence which has been
adduced by prosecution, it can be used to corroborate or contradict its maker. It
cannot be used to corroborate another person. Thus it is not a substantive piece of
evidence. The object ofF.I.R. is to obtain early information of the alleged criminal
activity to record the circumstances before there is time for them to be forgotten or
embellished.
The Criminal Procedure Code, 1973, does not define bail, although the terms
bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C.
as follows: " Bailable offence means an offence which is shown as bailable in the
First Schedule or which is made bailable by any other law for the time being
enforce, and non-bailable offence means any other offence". Further, ss. 436 to
450 set out the provisions for the grant of bail and bonds in criminal cases. The
amount of security that is to be paid by the accused to secure his release has not
been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a
monetary cap on the bond.
The grounds for cancellation of bail under Ss. 437(5) and 439(2) are identical,
namely, bail granted under S.437(1) or (2) or s.439(1) can be cancelled where the
accused (1) misuses his liberty by indulging in similar criminal activity, (2) interferes
with the course of investigation, (3) attempts to tamper with evidence of witnesses,
(4) threatens witnesses or indulges in similar activities which would hamper
smooth investigation, (5) attempts to flee to another country, (6) attempts to make
himself scarce by going underground or becoming unavailable to the investigating
agency, (7) attempts to place himself beyond the reach of his surety, etc. These
grounds are illustrative and not exhaustive.
IV.CASE LAWS
In Joginder Kumar v. State of UP2 the apex Court ruled that an arrested
person being held in custody is entitled, if he so requests, to have one friend,
relative or other person interested in his welfare, told that he has been arrested and
where he is being detained. The police officer shall inform the arrested person
when is brought to the police station of this right. An entry shall be requested to be
made in the diary as to who was informed of the arrest. The Magistrate is obliged
to satisfy himself that their requirements have been complied with.
In D.K. Basu v. State of West Bengal3 steps were taken to prevent ‘Custodial
torture’. This matter was brought before the court by Dr. D.K Basu, Executive
Chairman of the Legal Aid Services, a NGO of West Bengal through a PIL. He
addressed a letter to the Chief justice drawing his attention to certain news items
published in the newspapers regarding deaths in the police lock – ups and
custody. This letter was treated as the writ petition by the Supreme Court. In this
case, the Supreme Court took a serious note of Custodial violence and death in
police lock-up. To check the abuse of police power, transparency of public action
and accountability are two possible safeguards.
The apex court laid down guidelines (as preventive measure) to be followed
in all cases of arrest or detention till legislative measures are taken. Some are the
recent amendment made to the code codifies some of the Supreme Court
guidelines regarding arrest of a person laid down in D. K Basu case. i.e. like
amendments to sec. 41 like 41 A (Notice for appearance), 41B ( Procedure of
arrest and duties of officer making arrest), 41C (control room at district), 41D (Right
to arrested person to meet an advocate of his choice during interrogation) section
50A (obligation of person making arrest to inform about the arrest, etc., to
nominated person), Right to arrested person to get medically examined, etc. Even
Court directed that these directions should be widely circulated as Court
mentioned “Creating awareness about the rights of arrestee would be a step in the
The First Information Report is earliest report made to the Police Officer held
in the case of Soma Bhai v. State of Gujarat4 as FIR according to his discretion.
In case of more than one FIR-There could not be more than one FIR
in one case, even if there are many victims of the alleged offence,
writing three FIR’s in one case is illegal. What is recorded in the first
point of time and which reached the officer-in-charge of police
station first is FIR.
The Supreme Court in Raghu Nandan v. State of UP5 observed that where
the prosecution as also the defence omitted the examination of the medical doctor
at the trial, the important questions emerging from a reading of the postmortem
report as to the alleged time of murder etc. remained unanswered and the Court
also failed to consider their importance. Therefore, the High Court itself should
have taken further medical evidence of the doctor under Section 311 of the Code.
Where the trial Court did not examine the Investigating Officer in a case under
Section 307, IPC, causing prejudice to the accused, the High Court of Orissa
remanded the case back to the trial Court for examining the Investigating Officer
and deciding the case afresh. In 2011, The Hon'ble apex court in Sanjay Chandra
vs CBI6 also opined that:
“The grant or refusal to grant bail lies within the discretion of the Court. The
grant or denial is regulated, to a large extent, by the facts and circumstances of
each particular case. But at the same time, right to bail is not to be denied merely
because of the sentiments of the community against the accused. The primary
V. CONCLUSION