FIR (Ss.154 - Ss.176)

FIR in Cognizable cases -

1. 
   
   A First Information Report is Information(facts) of a cognizable offence, given orally or in writing to an officer of a police station. It is read over to the informant if given orally, signed by tthe informant, an entry or the essence/substance(material particulars) is entered into a book(S.155) called the 'Station House General Diary'. A reliable telephonic message disclosing a cognizable offence which is not cryptic or anonymous is valid.
2. 
   
   It must be given free of charge to the informant(Art 21 of Constitution). (S.154) If the Station House Officer refuses to register, the substance can be sent to the Superintendent of Police(District) or the Commissioner of Police(Metropolitan), who, if satisfied, either makes investigation himself or directs investigation by his subordinates. In State of A.P Vs P.Ramulu it was held that refusal to record information is a dereliction of duty even if it is a wrong police station. In a cognizable case the police-officer doesnot require a warrant from the magistrate to arrest.
3. 
   
   If there is a delay in filing the FIR then reasonable explanation and justification must be shown as held in State of W.B Vs O.L.Jaiswal. Delay causes chance of embellishment, exaggeration and false implications.
4. 
   
   An FIR is not a substantive evidence - State of M.P Vs Surbhan. Substantive meaning it can stand by itself. It can only corroborate or contradict the maker. It does not need to have the minutest detail but has to prima facie show that an offence has been committed and is sine qua non for registration of an FIR.
5. 
   
   Courts do not interfere at the stage of investigation as stated in Jayant Vitamins Ltd Vs C.Kumar. Only if they are illegal or in exceptional cases, then courts interfere - for ex, if the investigating officer is involved in the crime as in Punjab & Haryana Bar Association Vs State of Punjab.
6. 
   
   (S.157)Upon receipt he sends a report to the Magistrate and proceeds in person or deputes a subordinate to discover or arrest of the offender. If the police-officer thinks offence is not of a serious nature or the persons complicity is not established, in State of Haryana Vs Bhajan Lal he states his reasons in the report to the Magistrate and informs the informant that he is not willing to investigate it.
7. 
   
   (S.158)The report is sent through a senior officer as the State Govt may direct, and such officer gives necessary instructions to the police-officer and sends it to the Magistrate.
8. 
   
   (S.159)The Magistrate can direct investigation or hold a preliminary inquiry or depute any subordinate Magistrate to do so or he can dispose of the case.
9. 
   
   All the names of the witnesses need not be mentioned. In investigation the Police-officer is concerned with 2 objectives- Whether the offences alleged have been committed ? -Who has committed them ?

Non cognizable cases -
S.155 says that in a non cognizable case the police-officer doesnot have the power to investigate or arrest unless he gets permission or order from a Magistrate. If in 2 or more offences one of them is cognizable then the whole case is deemed to be cognizable.

Witness Attendance -
(S.160) A police officer by a written order can require the attendance of witnesses or persons acquainted with the case to give statements and record them in writing. However, no person below 15 years is required to attend at a place other than where s/he orinarily resides.  (Bodhraj Vs State of J& K ) The persons are bound to state truthfully except for answers that expose them to self incrimination like criminal charge, penalty or forfeiture.

Statement to police -

Persons making statements donot have to sign any record  and is not to be used in any inquiry or trial in respect of any offence under investigation except -

• 
  
  that the statements can be used by the accused to contradict the witness. It can be used in re-examination for explaining any matter referred in the cross-examination.
• 
  
  (S.162) If any part is missing in the statements (ommission) and is a significant or relevant fact amounts to contradiction.
• 
  
  (S.163)A police officer should not induce or promise or threaten a witness who is making out of his own free will except that he can caution in case of a confession  under S.164.

Statement to Magistrate -

Example of misuse of FIR: ORDER:

1. This petition is filed by the petitioners 1 to 4 who are shown as 'A' group in F.I.R No.91 of 2010 issued by the Inspector of Police, Kurnool II Town Police Station under Section 145 Cr.P.C, for quashing the said F.I.R under Section 482 Cr.P.C.
2. This Court at the outset wondered as to how a crime can be registered in the police station and how F.I.R can be issued in a matter relating to Section 145 Cr.P.C. The Inspector of Police Kurnool II Town Police Station by name Sri P.Srinivas was summoned by this Court and he was questioned by this Court about his propriety in issuing F.I.R in a matter relating to Section 145 Cr.P.C by registering the same as crime. The said police officer expressed that by mistake F.I.R was issued by registering the crime under Section 145 Cr.P.C and that it is a bonafide mistake. Having admitted that it is a mistake, it would be a question of fact whether the said mistake is a bonafide one or a malafide one tainted with oblique motive. The Public Prosecutor stated that he consulted some senior police officers, who expressed that no F.I.R can be issued in a matter relating to Section 145 Cr.P.C. The Public Prosecutor also stated that issuing F.I.R by registering a crime in a matter relating to Section 145 Cr.P.C is unknown to criminal procedure. The Inspector of Police stated that he has been working in the police department for the last 12 years and that 2 years ago he received his promotion as Inspector of Police. This Court understands a raw junior police officer who is recruited into service in the latest batch committing mistakes which are in the nature of blunders; and this Court could not comprehend as to how a senior police officer of the rank of Inspector of Police who had put in 12 long years of service in the department committed such mistake which can be classified blunder. Even though the Andhra Pradesh Police Academy is conducting periodical training programmes and re-orientation courses for all level of police officers in the State, some police officers like the Inspector of Police herein are not able to even understand basics of Criminal Procedure. Whether he is a police officer or any other officer of the Government, he is governed by rule of Law. The police officers who are in- charge of maintenance of law and order and detection and investigation of crimes are governed by the Code of Criminal Procedure, 1973 in their functions and it is part of rule of Law to be followed by them.
3. Section 154 (1) Cr.P.C deals with receiving and registering of information relating to commission of cognizable offences. The said provision reads as follows:
"154. Information in cognizable cases:-
(1) Every information relating to the commission of cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf."

Information as to commission of non-cognizable offence can also be received by the police officer and procedure for investigation of such information of non- cognizable offence by a police officer is set out in Section 155 Cr.P.C as follows:
"(1) When information is given to an officer-in-charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer, in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
2. No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
3. Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
4. Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."
As per Section 156 Cr.P.C any officer in-charge of a police station may investigate any cognizable case without order of a Magistrate if it occurred within the limits of such police station. The first step in the investigation after registration of a crime as per Section 157 Cr.P.C. is sending report by Officer in-charge of the Police Station to the Magistrate who is empowered to take cognizable of such offence upon a police report. Further, such report has to be sent to the Magistrate in the manner prescribed in Section 158 Cr.P.C.
Thereafter, Sections 159 to 172 Cr.P.C. deal with procedure to be followed by and powers of the investigating officer during the course of investigation of a case. After completing of investigation, the investigating officer shall forward final report to the Magistrate under Section 173(2) Cr.P.C in the prescribed form. The above provisions of Cr.P.C starting from Section 154 to 173 Cr.P.C deal with receiving of information relating to cognizable or non- cognizable cases, sending report thereof to the Magistrate in the prescribed form (i.e., by way of forwarding registered FIR along with original information to the Magistrate) and conducting and completing of investigation during which the investigating officer is expected to collect both oral as well as documentary evidence from witnesses, and finally the investigating officer is expected to file his final report before the Magistrate whether the case is liable to be charged for any offence or liable to be referred under any head prescribed by rules.
4. Thus, above scheme under the Code of Criminal Procedure, 1973 envisages that there must be commission of an offence and such offence may be a cognizable offence or non-cognizable offence for receiving information by the Police Officer under Section 154 Cr.P.C and sending the same to the Magistrate in the prescribed form under Section157 Cr.P.C. Without there being commission of an offence, the question of the police officer receiving information under Section 154 Cr.P.C or sending a report in the prescribed form to the Magistrate under Section 157 Cr.P.C does not arise at all.
5. Section 145 Cr.P.C does not contain a penal provision much less deal with any type of offence whether cognizable or non-cognizable. Section 145 Cr.P.C prescribes procedure to be followed where dispute concerning immovable property or water is likely to cause breach of peace. Under Section 145 (1) Cr.P.C, the Executive Magistrate passes an order in case the Executive Magistrate is satisfied from "a report of a police officer or upon other information" that a dispute likely to cause a breach of peace exists. Thus, in proceedings under Section 145 Cr.P.C., the police officer is the complainant or the informant to the Executive Magistrate. When the Police Officer is the complainant or the informant and is not the officer who receives information, then question of registering the said information under Section 154 Cr.P.C does not arise at all.
The police officer acting under Section 154 Cr.P.C is at the receiving end with reference to the information. Whereas a police officer in proceedings under Section 145 Cr.P.C is not at the receiving end, but is at the forwarding stage with reference to the information. Therefore, question of registering a crime under Section 154 Cr.P.C and forwarding FIR to the Magistrate under Section 157 Cr.P.C. does not arise in case of proceedings under Section 145 Cr.P.C.
6. In case the police officer registers a crime under Section 145 Cr.P.C and issues FIR, then the crime will be pending in the police station records until final report under Section 173(2) Cr.P.C is sent by the police officer/investigating officer to the Magistrate after conducting investigation.

No further investigation is contemplated by the police officer in proceedings under Section 145 Cr.P.C; and the police officer is also not expected to file any further final report under Section 173(2) Cr.P.C before the Magistrate in proceedings under Section 145 Cr.P.C. There is every possibility of misuse of power by an unscrupulous police officer in case a crime is registered under Section 145 Cr.P.C and it is kept pending in the records maintained in the police station, by way of forcing persons to come to the police station and harassing them in the police station for extracting any pecuniary or offer benefits. Therefore, this Court is of the view that even though provisions of Cr.P.C do not contemplate registration of a crime and issuing of FIR by a police officer in proceedings relating to Section 145 Cr.P.C., giving FIR after registering a crime in such cases is not only out-side the realm of law and would likely to lead to abuse of power by certain unscrupulous police officers. This cannot be permitted in law.
7. No doubt, there are certain instances where crime is registered and FIR is issued even though no cognizable offence is present is disclosed in the information received by the police officer. Such instances are like 'man missing', 'woman missing', 'girl missing', 'child missing' etc., and also under Section 174 Cr.P.C or under Section 176 Cr.P.C. In these cases, though initially no cognizable offence is disclosed in the information, still registration of a crime and issuing of FIR are not viewed seriously because ultimately, further enquiry or investigation may land in discovery of commission of a cognizable offence. In such informations, one can reasonably suspect commission of a cognizable offence which did not come to surface in the information received by the police officer.
8. Having regard to above discussion of various provisions of the Code of Criminal Procedure, 1973, it follows that Inspector of Police, Kurnool II Town Police Station has exceeded his powers under the Code in issuing FIR in Crime No.91 of 2010 in a matter relating to proceedings under Section 145 Cr.P.C and it is liable to be quashed on this ground alone irrespective of merits of contents therein.
9. In the result, the petition is allowed quashing FIR in Crime No.91 of 2010 of Kurnool II Town Police Station. However, it is open to the police officer to place information/report before the Mandal Executive Magistrate relating to this subject matter.

Arrest

How arrest made ? (S.42- 60)  (memory - 9NP MAWoBP UrIApWe)

s.41 There are 9 categories when the officer or any authorized person touches or confines the body of the person to be arrested in any cognizable offence upon a reasonable complaint/suspicion, any implement of house breaking, a proclaimed offender, possession of stolen property, obstructs an officer in performing his duty, deserter of the armed forces, convict on probation, request of another police officer etc. (the persons are mentioned in s.109 and 110). 

s.42 If he has committed a non-cognizable offence then his name and residence should be ascertained and released on bond. If he gives false or refuses to give name and address within 24 hours then he can be arrested and forthwith be forwarded to Magistrate. In every arrest there is custody not vice versa. 

s.43 A private person can also arrest and hand over to a police officer or police station if in his view  a person commits non-bailable and cognizable offence. The right of arrest arises under the common law.

s.44 A Magistrate who is executive or judicial can arrest or direct arrest(issue warrant) if offence is committed in his presence and jurisdiction.

s.45 If the person is a member of the armed forces or member for maintenance of public order cannot be arrested except with consent of Central/State Government. 

s.46 The person making the arrest shall touch or confine unless there is submission to custody by word or action. If any person tries to evade then the officer can 'use all means' necessary. However, you cannot cause the death of the person except if accused of an offence is punishable by death or imprisonment for life. Women cannot be arrested after sunset and before sunrise and if necessary then a woman officer should make a report and seek permission of the Magistrate before arresting. 

s.47 The Police Officer can break open any outer or inner door or window in order to liberate himself. 

s.48 The Officer may pursue a person whom he is authorized to arrest in any place in India. 

s.49 The person arrested should not be subjected to unnecessary restraint. 

s.50 He should be informed of the grounds for his arrest and right to bail. 

s.51 If he cannot provide bail then he should be searched and all articles other than necessary apparel must be placed in safe custody and receipt given. In case of a woman another woman should search her. 

s.52 If any weapons found then they should be seized and delivered to Court whom he is to be produced. 

s.53 Medical Examination: A registered practitioner may examine acting on request of a police officer not below the rank of Sub Inspector. Women should be examined by lady practitioners or under her supervision. 

s.54 Arrested person can also request medical examination of his own and then Magistrate can direct a RMP to examine. 

s.55 A police officer can depute his subordinate officer to arrest without warrant when given in writing specifying the person and the offence . 

s.56 He must send that person without delay before a Magistrate or Officer-in Charge of a PS. 

s.57 He cannot detain more than 24 hours in the absence of an order by a Magistrate. 

s.58 Officers in charge of police stations are to report to Dist. Magistrate or to Sub Divisional Magistrate cases of persons arrested without warrant. 

s.59 No person can be discharged by a police-officer except on his own bond or on bail or under the special order of a Magistrate. 

s.60 If a person escapes from custody of another then he can pursue, enter into any place for search and break open any outer or inner door for ingress or egress. 

Constitution and Powers of Courts

Six classes of courts & their hierarchy (S.6):

High Courts

Courts of Session

Chief Judicial Magistrate

Judicial Magistrates of the First Class

Judicial Magistrates of the Second Class

Metropolitan Magistrates

Executive Magistrates

Besides these, Special Courts can be constituted by State Government or Central Government.

Every State consists of Sessions divisions(Districts). Every metropolitan area (declared population of 10 lakh) is a sessions division and is considered a district. The State Government in consultation with the High Court can alter, add, divide limits or number of divisions. 

1. Courts of Session: In State of Assam Vs Ranga Muhammad it was held that the High Court does not have power to make first appointment because according to Art 233 that power vests in the Governor . It is presided by a Sessions Judge. Additional or Assistant Sessions Judges can be appointed to exercise jurisdiction of court. A sessions judge of one sessions division can be appointed as additional sessions judge of another district and so on. However the additional and assistant session judges are subordinate to the Sessions Judge and only in cases of unavoidable absence, incapacity, or urgent application, the additional and assistant can act on behalf if a provision is made either by the Sessions Judge or it can be forwarded to the Chief Judicial Magistrate. In Kehar Singh Vs State of Delhi it was held that holding a sitting in the Tihar jail was not illegal as notification amounted to declaring an additional place for sittings. 

2. Judicial Magistrates: The State Govt or the High Court can appoint the JM's. The High Court can confer magisterial powers on them or on any judge of civil courts. The Sub-Divisional Judicial Magistrate exercises general control over all JM's in the sub-division and s/he is subject to control of Chief Judicial Magistrate over whole district. 

3. Special Judicial Magistrates: The High Court when requested by the State or Central Govt can appoint JMSC's and confer on them powers to deal with particular cases or class or cases. The period of appointment is 1 year.  

4. Metropolitan Magistrates: The State Govt establishes the courts while the High Courts appoint the MM's or any Additional MM's for a term not exceeding 1 year to deal with certain cases or class of cases. 

5. Executive Magistrates: An EM(Collector/Tahsildar) under a District Magistrate is appointed in each district by the State Government. 

Public Prosecutors: (s.24)

The qualifications are that he must be an advocate of not less than 7 years practice and is appointed by the State/Central Government. Special Prosecutors can be appointed for particular cases or class of cases from a panel of names to be prepared by the District Magistrate in consultation with the Sessions Judge. A police officer below rank of an Inspector(s.25) or has taken part in investigation cannot be appointed as a Assistant Public Prosecutor. The appointment of PP is a compelling constitutional necessity and an obligation under the Cr.P.C. (P.M.Sunny Vs State of Kerala).

Duties of Public Prosecutor: 

The Public Prosecutor has to maintain impartiality and integrity. PP stands on behalf of the State. An offence is treated as a crime against the society and an invasion of public peace. The Public Prosecutor's main duty is to help discover the truth -- fairly, fearlessly and responsibly. He is an agent of justice. 

While renewing the PP's office the Sessions Judge & the District Magistrate have to follow same procedure in s.24(4) Cr.P.C. In Harpal Singh Vs State of UP it was held that the High Courts can examine any infirmity in the 'decision making process' and revert back to DM to follow s.24(4). According to the Doctrine of Forum Convenience the High Court cannot usurp functions of lower court inquiry.  

In Pavunny Vs. A.C.Central Excise Collection it was held that in cases like those under Customs Act or Gold Act have to be assigned only to people who have experience and ability in that branch of law. In State of Gujarat Vs K.V Joseph it was held that time factor maybe a consideration that High Court will take into consideration and decide by itself. 

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5 Powers of the Courts:

1>Power to try offences - These are offences triable by the High Court and Sessions Court(under IPC) or any other court having jurisdiction(any other law) under the First Schedule (s.26).
Some offences are tried by the courts mentioned by those laws or if no such court is mentioned then the High Court. A person under 16 for males and under 18 for females are tried under the Juvenile Justice Act,1986 (s.27). Previously they used to be tried by the Chief Judicial Magistrate or under the Children Act, 1960. Under the JJ Act 1986 a delinquent juvenile has to be released on bail, even if he has committed a heinous crime. If not he should be kept in a safe custody according to the JJ act. In Sangeeta Jain Vs S A Dwivedi it was held that accused who was a minor on the date of commission of offense can be tried u/s7 of JJAct,1986

2> Power to pass sentences: 
- A High Court can pass any sentence authorized by law. Even discretionary powers have to be exercised consistent with known principles of law and not otherwise - Dwarka das Vs State of Haryana
- While Sessions and Additional Sessions Judge can pass same but a sentence of death requires confirmation by the HC in order to minimize errors of trial.
- An Assistant Sessions Judge may pass any sentence authorized by law except - death sentence, imprisonment for life or imprisonment for term exceeding 10 years.
- While CJM and CMM cannot pass any imprisonment exceeding 7 years.
- JMFC cannot pass imprisonment not exceeding 3 years or fine exceeding Rs 5000 or both.
- JMSC cannot pass imprisonment exceeding 1 year or fine exceeding Rs 1000 or both.
3> Power to sentence of imprisonment in default of fine: s.30
The sentence should not be in excess of the powers.
It should not exceed 1/4th of the imprisonment which Magistrate can inflict.
The imprisonment awarded under the section is in addition to the substantive sentence for max term awardable by magistrate.
4> Power to sentence in cases of several offences at 1 trial: 
Here the sentences can run concurrently or consecutively (where the sentences are higher than the aggregate punishment is in excess of that which the court is competent to inflict of a single offence it is not necessary to send offender before a higher court. - But 2 conditions or exceptions are
1- S/he cannot be sentenced to imprisonment for more than 14 years.
2- The aggregate punishment should not exceed twice the amount for a single sentence which Magistrate is competent to inflict for single offence. For appeal aggregate is single offence (s.31)
5> Power of conferment, continuance and cancellation of powers:
Conferment orders take effect on the date when communicated to the Magistrate(s.32) and continues in power even if transferred to another place (s.33). The High Court or the State Govt may withdraw/confer/empower powers  conferred by it.
(s.35)The CJM or the DM may withdraw any powers conferred by him(s.34). Successors-in office enjoy the same powers and duties. Any dispute is resolved by the Chief Judicial Magistrate or the District Magistrate with regards to the Magistrates. The Sessions judge decides in case of additional or assistant sessions judges. 

Meaning of Criminal Procedure

Definition: A step taken; an act performed; a proceeding; the steps taken in an action or other legal proceeding.

Definition: A mode of conducting legal proceedings.

Criminal procedure puts the burden of proof on the prosecution – that is, it is up to the prosecution to prove that the defendant is guilty beyond any reasonable doubt, as opposed to having the defense prove that s/he is innocent, and any doubt is resolved in favor of the defendant. This provision is known as the presumption of innocence.

The framework of laws and rules that govern the administration of justice in cases involving an individual who has been accused of a crime, beginning with the initial investigation of the crime and concluding either with the unconditional release of the accused by virtue of acquittal (a judgment of not guilty) or by the imposition of a term of punishment pursuant to a conviction for the crime. Criminal law is the branch of substantive law dealing with punishment for offenses against the public and has as its corollary criminal procedure, which indicates how the sanctions of criminal law must be applied.

Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. Specifically, they are designed to enforce the constitutional rights of criminal suspects and defendants, beginning with initial police contact and continuing through arrest, investigation, trial, sentencing, and appeals.

The main constitutional provisions regarding criminal procedure can be found in the Criminal Procedure Code, 1973 and Article 21 of the Constitution. This covers the right to be free from unreasonable searches and arrests. No person shall be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due procedure established by law.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of legal counsel for his defence.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. According to the Supreme Court, fundamental rights in criminal procedure include freedom from unreasonable searches and seizures, freedom from cruel and unusual punishment, assistance of counsel, protection against self-incrimination, confrontation of opposing witnesses, a speedy trial, compulsory process for obtaining witnesses, and protection against double jeopardy (same cause of action).

Investigation

Criminal prosecutions officially begin with an arrest. However, even before an arrest, the law protects the defendant against unconstitutional police tactics. The Constitution protects persons against unreasonable searches and seizures by police officers. Generally, a search warrant is required before an officer may search a person or place.

Arrest

The general rule is that to make an arrest, the police must obtain an arrest warrant from the Magistrate for a non-cognizable offence. However, if an officer has probable cause to believe that a crime has been committed, and there is no time to obtain a warrant, the officer may make a warrantless arrest. Also, an officer may make a warrantless arrest of persons who commit a crime in the officer's presence.

“the Power of Arrest must be used in the rarest of rare cases and not in a routine manner. A mere allegation of Commission of offence cannot constitute ground for arrest. It would be desirable that a Police Officer making an arrest should also record in the case diary, the reason for making the arrest.” in the historic judgment of Hon SC in D K Basu Vs State of West Bengal.

In the words of Justice MN VENKATACHALLIAH in Joginder Kumar Vs State Of UP – 1994.

“No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person.

“

Trial

At trial, an accused has a number of constitutional rights, including the right to counsel, the right to a public trial, the right to a fair and impartial trial, the right to confront witnesses in court, the right to compulsory process to obtain witnesses, and the privilege against self-incrimination. Violation of any of these rights may result in the reversal or vacation of a conviction on appeal. A defendant is free to reject counsel and proceed pro se, or by self-representation. However, a judge may disregard the defendant's request and appoint an attorney if the pro se defendant engages in dilatory or disruptive tactics.

Appeal

Contrary to popular belief, the Constitution does not guarantee the right to appeal a criminal conviction. Most criminal offences do provide the right to an appellate review of criminal convictions, to protect against trial court errors. On appeal, the burden is on the defendant to prove that an error occurred in the trial or that the evidence was insufficient to convict.

Introduction

The code applies to whole of India except certain areas like Nagaland, parts of tribal areas in Assam, and Andhra Pradesh. However, the State Government by notification in the gazette can make it applicable. The code cannot be amended even by a State Govt except by the assent of the President [Art254(2)].

Cr.P.C has 3 basic considerations.

1> accused person should get a fair trial with accepted principles of natural justice.

2> to avoid delay in investigation and harmful trials

3> the procedure should not be complicated and a fair trial to the poorer sections of the community.

The rules contained in the code need to be obeyed. If not then the High Court has the inherent power to 1) give effect to any order under the code, 2) to prevent abuse and 3) to secure the ends of justice.

There is no limitation of time in filing complaints but delay in filing is attended by 2 evils namely that memory fades over time and valuable evidence is destroyed. The Limitation Act 1963 (Art 114, 115 and 131 ) is applicable to all appeals and review petitions.

Bailable offence means that you can deposit money or surety with the police officer and the list of offences is specified in the 1st Schedule. Cognizable offence is where a police officer can arrest without warrant. So if you are booked under 3 sections and 1 of the section is cognizable then it would be deemed to be cognizable.

Who can complain ? What is the difference between complaint and police report ?

Any person of sound mind and competent can complain except for offences of marriage, defamation and offences covered under S.195-197.

Complaint means any allegation in writing or orally made to the Magistrate urging him to take action on that person/s who have committed an offence. Magistrate may or may not take cognizance. Complainant and First Informant are not the same. For ex: In a case of murder of husband, the wife was the complainant. Affidavit is also a complaint. Complaint need not contain all ingredients of offence but allegations of fact are necessary.

While police report means a report made by an officer after investigation declares it in the report that a non-cognizable offence has been committed, he then forwards it to the Magistrate. Here the police report is a complaint and the police officer is the complainant.

What is the difference between inquiry, investigation and trial ?

All proceedings before the framing of a charge and which do not result in conviction is an inquiry. Inquiry stops when trial begins.

The police officer first of all investigates(collection of evidence) the subject matter and if he finds there was no commission of offence, he reports to Magistrate who drops proceedings. If he finds any thing contrary then Magistrate can order an inquiry or trial. He can conduct the trial or an inquiry. He may discharge, acquit or convict. When someone says 'judicial proceedings' it includes both inquiry and trial conducted by a Magistrate and not investigation done by a police officer.

Collection of evidence means - search of material, arrest and detention of a person, examining witnesses, raids, medical examination etc.

What is the difference between 'summons case & warrants case' ?

Ordinary cases where the punishment is below 2 years is a summons case. A warrant case is more serious and includes offence punishable by death, imprisonment for life or imprisonment for a term exceeding 2 years. A summons case can be tried as a warrant case and vice-versa if justice demands or the Magistrate passes a specific order and order-sheet should reflect it.

The hierarchy of the Magistrate is as follows and they deal with appreciation or sifting of evidence, punishment,penalty, detention in custody until investigation/inquiry or trial etc..:

Supreme Court Judge

High Court Judge

Chief Judicial Magistrate or District Magistrate(Executive) or Sessions Court/Judge

Judicial Magistrate of First Class/Metropolitan Magistrate of First Class

Judicial Magistrate of Second Class/Metropolitan Magistrate of Second Class

Judicial Magistrate of Third Class

The Executive Magistrate deals with administrative functions which are executive in nature. For Ex: Granting of License, Sanctioning prosecution or withdrawing from a prosecution. The EM is ranked with JMFC cadre.

If no code is available for a particular offence then S4(2) and 26(6) Cr.P.C be availed for investigation and inquiry or trial. For Example: If offence is committed in USA and S.188 Cr.P.C requires sanction from Govt of India for enquiry and trial of Indian citizen...not for pre-enquiry stage.

In certain cases such as seizure of vehicle and the authorities release the vehicle, then Magistrate powers stand excluded. Sales Tax, Income Tax and Customs will be governed by their respective Acts and will prevail. Only when provisions of IPC are attracted then the code will come into force. Special jurisdiction for CONTEMPT are with the High Courts which are court of records like the Supreme Court, they can formulate their own procedure.