Steps in Criminal Prosecution

in India
By
K Rajasekharan
Advocate, Thrissur Bar
 Laws on Criminal Procedure
• Criminal Procedure Code 1973
• Indian Penal Code 1872
• Indian Evidence Act 1872
 Classes of Criminal Courts
• Judicial First Class Magistrate’s – 3 years /
fine 10000/-
• Chief Judicial Magistrate’s – any sentence
except death, life or exceeding 7 years
• Court of Sessions : Any sentece but
confirmation of HC in death penality
• HC : any sentence
• SC : any sentence
• Executive Magistrate’s
 Concepts one should know
• Bailable V Non-Bailable offence – the police can grant bail in
the former
• Cognisable V Non-Cognisable Offence – Police can arrest in
the former
• Summons case V Warrant case : the former less than 2 years
puishment
• Inquiry – one conducted by a Magistrate
• Investigation – one conducted by the Police / one authorised
by a Magistrate, except by a Magistrate
• Judicial Proceedings – proceedings by judiciary but
examination by police is not
• Offence – Any act punishable
• Police Report : one prepared by police to send to Magistrate
 Registration of FIR
• First Information Report (FIR) means the
report of information (first information
statement) disclosing a cognisable offence,
lays before the police
• The investigation starts with filing of FIR -
registered u/s 154 of CrPC
• FIR sets the criminal law into motion
• FIR is mandatory when disclosing cognisable
offence
• If police fails to lodge FIR, file private
complaint
 Arrest
• Police provided with wide powers of arrest
• Arrest to be governed by law
• Arresting against law is an encroachment
on personal liberty
• The power is discretionary and to be used
with caution
• No restraint on a person when not
arrested
 Investigation
• For investigation u/s156 of the CrPC Police
have powers, independent of Magistrate’s
control
• to collect evidence by investigation agency
• Accused can be arrested during investigation
• Magistrate has no power to stop an
investigation u/s 156(3) : Prakash Singh
Badal V State of Punjab ( AIR 2007 SC 1274)
• On investigation if there is no sufficient
evidence release the accused on a bond.
Otherwise go for trial
 Production of Accused
• Accused is produced before court within
24 hours
• Under section 167 CrPC, Magistrate can
allow police custody for more time but not
more than 15 days for investigation
 Police or Case Diary
• Investigation Officer has to keep a Case Diary
in each case to record day to day particulars
of investigation
• The Police Diary is to contain proceedings of
the Police Officer, but not statements of
witnesses
• Police diary is used by the court when the
diary contradicts with the evidence of witness
• Neither the accused nor his agent has to see
this diary
 Distinction between
Inquiry investigation
• Done by magistrate • By police or by one
• The object is to find the authorized by magistrate
truth or falsity of anything • Purpose is to collect
• Inquiry can be judicial or evidence or all facts
non-judicial • Investigation is non
judicial
 Magistrate taking Cognisance
The Magistrate can take cognisance :-
• On receiving a private complaint of facts
• Upon police report of such facts
• Upon receipt of information from any
person other than a police officer
 Proceedings before Magistrate
• On taking cognisance, magistrate issue
summons/warrant (along with a copy of
the complaint) for attendance of the
accused
• In petty offence (under fine of Rs 1000),
the case will be summarily disposed of
u/s 206
 Documents provided to accused
• The Police Report
• FIR
• Copy of the statements u/s 161
• The confessions and statements u/s 164
• Other documents forwarded to
magistrates with police report
 Bail application
• Bail Application, if any, will be heard by
the court
 Difference between Complaint & FIR
Complaint before First infromation Report
Magistrate (FIR)
• An allegation before the • Allegation before a police
magistrate • Can be given by any
• Only an aggrieved can file person
• The court can take • Police officer to take
cognisance cognsiance & start
• Magistrate alone can take investigation
cognisance • Magistrate has no
authority to take
cognisance
 Police Report
• On completion of investigation ordered by
Magistrate u/s 156, police officer has o send
the final report to the Magistrate to take
cognisance u/s 173 (1)
• The report should include steps of
proceeding to the spot, investigating the
facts & circumstances, measures for
discovery of facts/materials, arrest of
accused, searching and seizing, examining
witnesses etc
 Police Charge Sheet
• Charge is a specific first accusation against
a person so as to make him know his
offence
• If a case is made out charge sheet will be
filed by the police
 Satement u/s 164
• This is statement by the accused during
investigation voluntarily
• Accused is no bound by law to make a
statement
• The statement can be used against the
accused
• It must be signed by the accused, read
over to him and admitted as correct
• The statement to be sent to trial court
 Hearing of Charge Sheet
• Opportunity will be given both
prosecution and defense to argue on the
charge sheet
• The court can add or alter any charge but
a charge once framed has to end in
acquittal/punishment
 Discharge of the Accused
• In case, prosecution makes out no charge
the accused will be discharged
 Framing of Charge
• In case sound reasons of crime exist
charge against the accused will be framed
by the court
 Conviction of Plea Guilty
• If pleads guilty the accused will be
punished at court’s discretion and based
on circumstances
 Statement of Accused
• the accused will be allowed to explain the
circumstances under section 313
 Sessions Trial Proceedure
• Public Prosecutor will open the case by
describing the charge & stating the evidence
he relies on
• On hearing both sides & considering all
records, the judge may discharge the
accused /frame charges
• The charge sheet will be read out and the
plea of the accused will be recorded
• If accused pleads guilty the judge may
convict him, otherwise date will be fixed for
prosecution evidence & issue processes
 Taking Prosecution Evidence
• The judge shall go on taking evidence of
all witnesses & Cross & Re
• Then the judge shall examine the accused
personally
• On hearing both sides if there is no
evidence the accused will be acquitted
• otherwise he will be allowed to enter upon
his defense
 Taking Defense Evidence
• Thereafter the judge shall record the
defense evidence
• Thereafter the Public Prosecutor will sums
up the case
• The defense pleader then will give the
reply
• Then the public prosecutor will counter
reply to the legal points
 Mode of Taking Evidence
• Evidence in the presence of the accused &
allow every opportunity to defend him
• When taking evidence it shall be recorded
• Then read the contents to the witness & in
case of clarification the magistrate can alter
the record after making a memorandum of
such alterations
• obtain the sign of the witness in summons
case but in warrant case magistrate has to
sign
 Trial of Warrant Case
• See Sections 238 to 250
 Trial of Summons Case
• See Sections 251 to 259
 Summary Trials
• See sections 260 to 265
 Plea Bargaining
• See Sections 265 A to J – added in 2005
 General Provisions on Trial
• No two trials for same offense : like Res
Judicata in civil proceedings
• Trial must be against an offense
• Discharge or dismissal of complaint is not an
acquittal
• A person acquitted can be charged with a
different offense
• A person charged with grievous hurt can be
charged with death when victim dies
• One not summoned can also be examined
 Continued
• Trial enables the accused to question any
evidence against him u/s 313
• Court can ask anything that is necessary
before the accused enter on defense
 Accused get an opportunity
• Accused to be given an opportunity to
make representation against the
punishment before it is imposed
 Judgment (S 353 & 354)
• Ends in acquittal or conviction of the accused
• Not to pass conviction & sentence on the same day

The factors to be considered are :-