This article is written by Avichal.
Since the beginning of society, we humans have lived by some rules. These rules were usually set by the eldest person of the group or civilization. Since the beginning, there have been people who have broken these rules. There have been defaulters since the beginning of human civilization. Punishments were given to them on time also. Initially, whether a person is guilty or not was decided by the head of the tribe. Then as we evolved, so did the criminal justice system. When the period of kings came, the punishment of a crime was decided by the king and his ministers.
Laws were devised by a discussion between them as well. Ministers were the ones who used to advise the king regarding the laws. Laws regarding land revenue, travel, and other aspects were decided by the king. Some of the kings used their religious books as a source of law such as the Mughals who used the Holy Quran and the Hadiths as a source of law.
Similarly, some Hindu rulers used the Manusmriti as the source of law. At the same time, some countries were using an initial stage of modern democracy to form laws. “What crime is?” and “how should the offender be punished?” are two questions whose answer kept changing with respect to the period of time and the type of people who were in power. In modern times, the procedure of giving punishment to offenders has become more complex. This article is an attempt to explain the intricacies of the police investigation and criminal court.
What is a crime?
There is no specific definition of crime. Many have attempted to describe what crime is. All of them have different definitions. Crime has been defined by different criminologists and sociologists from various perspectives. The various definitions are stated below:
- As a Public Wrong: Initially, Sir Blackstone defined crime as “An Act committed or omitted in violation of a ‘Public Law’, forbidding or commanding it.” This definition was not wide. It restricted the definition of crime to what he called a violation of public law. This forced him to change his definition of what crime is. He gave a new definition that defined crime as “A crime is a violation of the public ‘rights and duties’ due to the whole community, considered as a community”. One can see that Blackstone has laid a lot of stress on the harm and injury which is done to society or the community at large. Also, this would include acts that were illegal but not a crime. For example; reckless management of a company. So this definition was not comprehensive enough. This led to a shift in the perspective of viewing crime.
- As a Moral Wrong: Raffaele Garofalo was a sociologist and criminologist who gave the next definition of crime. He defined crime as “Crime is an immoral and harmful act that is regarded as criminal by public opinion, because it is an injury to so much of the moral sense as is possessed by a community- a measure which is indispensable for the adaptation of the individual society.” Here, Garafalo has tried to define crime as an act that would be recognized as a criminal act by any civilized society. As per him, it is the label of the society which makes one act as a criminal offense. But the biggest problem in his definition is that he includes all the morally wrong acts as a criminal act. It is a known fact that all crime is morally wrong but all the morally wrong acts are not constituted as crime.
- As a Conventional Wrong: After adapting Garafalo’s definition, our society moved forward. A new definition was given by Edwin Sutherland. According to him, “Criminal behavior is behavior in violation of criminal law. No matter what the degree of immorality, reprehensibility, or indecency of an act, it is not a crime unless it is prohibited by criminal law.” This definition is based on the concept of ‘nulla poena sine lege’, which means there is no crime without a law. His definition was not much of a definition but just naming of the characteristics of what crime is.
- As a Social Wrong: Many famous jurists and sociologists like Rosco Ponde, John Gillin defined crime as a social wrong. John Gillin defined crime as an act that is harmful to society or is believed to be harmful to society. At the same time, Thomas defined crime as an action that is antagonistic to the solidarity of the group which is regarded by the individual as his own. Similarly, different conditions of society gave rise to different definitions of crime in our world. And hence there was no uniform definition.
- As a Legal wrong: As time changed, many countries started following specific laws. This was the time when crime came to be viewed as a legal wrong. The Supreme Court Of India while giving the verdict of Gian Singh v. State Of Punjab And Another, (2012) defined crime as an offense against society.
One of the majorly accepted definitions is that anything which is against the law is a crime. In other words, anything which is illegal is a crime. This is because crime keeps changing with time. What was a crime in the past might not be a crime today. What is considered a crime today might not be a crime in the upcoming future. For example, homosexuality was a crime in India for a long time. But now after the verdict of Navtej Singh Johar v. Union of India, it has been decriminalized. Triple talaq is also one such example. It was earlier allowed under the Muslim personal law in India. But now it has been struck down by the Supreme Court in Shayara Bano v. Union of India.
Essentials of a crime
Not every illegal act committed by a person becomes a criminal act. There are some essentials to crime. These essentials or fundamentals are:
- Human Being;
- Mens Rea;
- Actus Reus;
Human Being: The crime must be committed by a human being. An animal cannot be termed as a crime. There was a time when animals were also punished for their acts but not anymore. Now only a human is punished for the offense committed by him.
Mens Rea: Mens Rea refers to intention or a guilty mind. This means that whether an act is culpable or not is checked by the fact that there existed an intention of committing the same in order to provide some harm to the other person. An act may be voluntary or involuntary, but to make that person criminally liable, one will have to prove men’s rea on behalf of the accused. If an act is done without intention, that person will not be criminally liable for that act.
Actus reus: Actus reus is the physical aspect or part of any crime. Such an act can include the commission of any act or omission of any act, which had resulted in injury to any victim (civil case) or the plaintiff (criminal case). Any act alone does not amount to a crime, however, when we combine the guilty intention of any person and the act itself, the resultant act will be a crime if it has been prohibited by the law of the land. Actus Reus can also be the omission of an act, by omitting to do something that the accused knows he is bound by duty or law.
Injury: Injury is the last ingredient of the crime. Any person or society at large should have been affected by the offense committed by the accused. One should not confuse medical injury with legal injury. Both are different. Here we are talking about legal injury. Legal injury has been defined in the Indian Penal Code, 1860. Section 44 defines it as any harm illegally caused to any person, in body, mind, reputation or property.
Ignorantia Juris non excusat is one of the most famous maxims of law. It means that due to a mistake of fact, the accused may be excused.
Similarly there exist situations where a person may be liable for the actions of another person. These are the cases of strict liability. Here Mens Rea is not needed, only Actus Reus is enough to make a person liable for the crime. Once a crime is committed, a complaint is made. The police are then involved to investigate.
Police Investigation and trial
Once any crime is committed, one has to provide information to Police. All the work done by police can be usually divided under 3 heads. These are:
- Detection and investigation of crime;
- Prevention of crime;
- Implementation of regulations.
Information given to police, when filed by them is called First Information Report (FIR). The First Information Report is what a police officer on duty records which has been provided by the aggrieved person or any other person to the commission of an alleged offense. This is when the first stage of the police investigation is reached. Rules for registration of FIR are different for different types of cases. IPC divides all the offenses into two categories. These are:
- Non-Cognizable Offenses: an offense/case in which a police officer has no authority to arrest without a warrant.
- Cognizable Offenses: an offense/case in which a police officer can arrest without a warrant.
The Supreme Court of India in the case of Lalita Kumari v. State Of Uttar Pradesh, 2014 that registration of FIR is compulsory in cognizable offenses. In Priyanka Srivastava v. State of Uttar Pradesh, 2016, the Supreme Court ruled that every person has a right to go to court if the FIR of a cognizable offense is not filed to direct the police to record FIR (Priyanka Srivastava v. State of Uttar Pradesh, 2016).
The criminal investigation process can be started after:
- As per Section 156(1) of the Code of the Criminal Procedure, any police officer, even without the orders of a magistrate, can start the investigation of a cognizable case on complaint/reporting/knowledge of the commission of a cognizable offense.
- If the police officer doesn’t act in pursuit of the complaint made for a cognizable offense, a criminal complaint can be filed in front of a magistrate under Section 190 of CrPC, for taking cognizance of offense and inquire or order the police to register the FIR.
- In the case of a non-cognizable offense, Police are not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the CrPC.
As soon as an FIR is registered, an Investigating Officer is appointed. It’s his duty to investigate the whole case and arrest the accused. Once an accused is arrested, within 24 hours he or she has to be presented in front of a magistrate. There can be only one FIR for one case (T.T. Anthony v. State of Kerala, 2001). The court then decides about the custody of the arrested person. There are specific guidelines laid by the Supreme Court of India in a case where punishment is of less than 7 years (Arnesh Kumar v. State of Bihar, 2014). Police custody can be a maximum of 15 days. These 15 days are counted from the day of arrest. Once this time period is fulfilled, the police present the accused in front of the court again.
Then it is the decision of the magistrate to send the person to police custody again or send the accused to judicial custody. It is a settled case that the police custody can’t be more than 15 days (C.B.I. v. Anupam J. Kulkarni, 1992). When the accused is in police custody, he is locked in a police station but when one is under judicial custody, he is locked in a jail. When in police custody, the accused can be interrogated anytime by the police but when they are under judicial custody, permission from a magistrate is required.
There is a limitation of time for investigation. A case in which charges are such that can cause punishment of a maximum of 10 years, has to be closed within 60 days only if the accused is under custody. Wherein 90 days are given in the case where punishment is of more than 10 years or death sentence, only if the accused is under custody. This means that regarding one accused there exists a maximum time of 90 days to conclude police investigation. Police can still file for some extra time in court.
During the investigation, the statement of a witness is recorded under Section 161 of the Code of Criminal Procedure,1973. All the evidence is collected by police, and recording of statements before the magistrate is taken under Section 164 of The Code of Criminal Procedure,1973. After this charge sheet is filled. It is commonly known as 173 reports because the charge sheet is filed under Section 173 of The Code of Criminal Procedure, 1973. After filing the charge sheet, the police investigation is finished. Then there arise two conditions. The first is where the magistrate summons the accused, meanwhile, the second being where the police file a closure report. As soon as the Closure Report is filed, it is the duty of the magistrate to convey this to the first informant. This is not a written law but but a law developed through precedents. This was first said in the case of Bhagwant Singh v. Commissioner of Police. When the closure report is filled there also arises 3 situations. These are:
- Acceptance of Closure Reports: The court might accept the closure report. When it confirms that there is no chance of getting evidence in order to solve the case.
- Further Investigation Order: Court might notice that there is some more evidence that will help to solve the case. There might be some shortcomings on behalf of police and court orders to do a further investigation (Sakeri Vasu v. State of Uttar Pradesh, 2001). A magistrate can supervise the investigation regarding the FIR.
- Summoning the accused at the discretion of the magistrate: Under Section 204 of the Code of Criminal Procedure, 1973, the magistrate can summon the accused and the first informant.
After this is the criminal trial. It is the time where the cognizance of the offense takes place. It is stated under Section 190 of the Code of Criminal Procedure, 1973. This section lays down different conditions which are requisite for initiation of proceedings. These conditions are stated as:
Any first-class or second class of magistrate has been given by the section to take cognizance of any offense when:
- He or she receives a complaint of facts which constituted any offense.
- He or she receives a police report (charge sheet or 173 reports) of such facts.
- He or she receives information about any incident from any person other than an officer in police, or upon his knowledge regarding the happening of such offense.
This section also gives power to the Chief Judicial Magistrate to ask any second class magistrate to take cognizance under the sub-section (1) of such offenses as are within his competence to inquire into or try.
Section 190(1)(a), defines what complaint case is. The word complaint has been defined under Section 2 of the Code of Criminal Procedure, 1973. Under this section, a complaint has to be made by writing to a magistrate. That complaint must have all the details related to the offense. Section 200 of the Code of Criminal Procedure asks the magistrate to check the complaint. This section states that a magistrate who is taking cognizance of any offense on the basis of any complaint, he or she should examine the complaint upon oath and also the witnesses if there were any present. And this examination should be reduced to writing and it shall be signed by the complaint and all the witnesses and also by the magistrate. But there are some conditions where the magistrate need not examine the complaint. These conditions were:
When the complaint has been made by a public servant or- purporting to act while discharging of their official duties or when a court has made the complaint.
The case has been sent for the inquiry by one magistrate to another magistrate under Section 192 of the Code of Criminal Procedure. Provided that the magistrate who has sent the case to other magistrates has already examined the complaint and witness.
The magistrate has the power of disposing of the complaint if he or she doesn’t find any sufficient grounds for proceeding, meanwhile, if the magistrate finds sufficient ground for proceeding, the magistrate can exercise powers under Section 204 of the Code of Criminal Procedure.
Another way a magistrate takes cognizance is suo moto or when the charge sheet is filed.
Section 204 of the Code of Criminal Procedure states the issue of process. It makes two different types of cases. These are summoned and warrant cases. This section defines what to do under these two categories. It says that:
“When the magistrate who is taking cognizance of any offense finds enough ground for proceeding with the case, the case might be of two types. The first one is the summons case- in this, the magistrate sends a summon to the accused of their attendance. Second type or way is a warrant case- in this, the magistrate can issue warrants and if he thinks its fit to issue a summons, for causing the accused to be brought or to appear.”
After this, the magistrate sends the case to the appropriate court. The trial begins in the court. Then a recording of evidence in court is done. This is done under Section 313 of the Code of Criminal Procedure. It is for the first time when the accused person gets to speak or tell about his side of the story. In the meantime, the accused can file for bail. If the charge sheet is not filed within the given time period, there comes in play the concept of default bail.
The term ‘bail’ is originated from an old French verb ‘bailer’ which means ‘to give’ or ‘to deliver’. It is defined as an amount of money that a person who has been accused of a crime pays to a law court so that they can be released until their trial. The payment is a way of making certain that the person will return to court for trial, by Cambridge University. There are three types of Bail in India. These are:
- Regular bail- is a bail that is given to an arrested person or who is in police custody. It can be filed under Section 437, and 439 of the Code of Criminal Procedure.
- Interim bail- It is a bail that is granted for a short period of time and is given before the hearing for the grant of any other bail.
- Anticipatory bail- Is a bail that is given under Section 438 of the Code of Criminal Procedure either by the session court or high court. Application of anticipatory bail is filed by any person who has discerned that he might be arrested by the police for a non-bailable offense.
Under Section 436 of the Code of Criminal Procedure, 1973, there are conditions of the bail. These are:
- Any person who has been charged under any non-bailable offense is given bail only if there is a lack of evidence then bail in non-Bailable offenses can be granted or a delay has happened in lodging FIR by the complainant, and if the accused is gravely sick. But one must remember that there should not be any conflict with the provisions of sub-section (3) of Section 116 or Section 446A of the Code of Criminal Procedure.
- Any person who has been charged under bailable offense then if the court thinks there are enough reasons to believe that the accused has not committed the offense or there are enough reasons to conduct the further inquiry in the case or the given person is not accused of any offense punishable with death, life imprisonment or imprisonment up to 10 years.
After all this, the judgment is given. The judgment can be an acquittal or conviction.
Principles of Criminal Law
There are four principles that are always followed in a criminal case. These are:
- Presumption of innocence: It is one of the most famous lines we have heard in common life that any accused person is innocent till found guilty. Though it is not written anywhere expressly in our law but is still followed. The House of Lords in the case Woolmington v. Dpp said that presumption of innocence is the golden thread of the criminal law.
- The burden of proof is always on the state but with some exceptions; this a famous maxim of common law, stated as “Ei incumbit probatio qui dicit, non qui negat “. There are two sections in the Indian Evidence Act, which lays emphasis on the point that any person who has approached the court to give its judgment on any right or liability must prove the facts which he has asserted. These sections are Sections 101 and 102 of the Indian Evidence Act. This was also said in the recent case of Rangammal v. Kuppuswami and Ors (2011).
- Right to remain silent; Article 20 of the Indian Constitution protects every citizen of India against self-incrimination. The Supreme Court, in Selvi v. State of Karnataka (2010) has held, “In the Indian context, Article 20(3) should be construed with due regard for the inter-relationship between rights, since this approach was recognized in Maneka Gandhi’s case.” The protection under this article also covers investigation stages.
- Double Jeopardy; this is a right guaranteed to every citizen of India under Article 20(2) of the Indian Constitution. It is defined in the black law’s dictionary as “ A second prosecution after a first trial for the same offense”, based on the legal principle “Nemo Debet Bis Puniri Pro Uno Delicto”. This maxim means that no men should be punished twice for one offense. The article states that “No person shall be prosecuted and punished for the same offense more than once”. The Supreme Court Of India held in the case of M. P. Sharma And Others v. Satish Chandra, 1954 that the protection under the given article is only limited to conviction or sentence under an ex post facto law and not the trial thereof.
The criminal trial procedure in India is very long and tedious which takes a lot of time. It begins with registration of the FIR and ends with the declaration of judgment by a court. This is a very slow process. There are many reasons due to which this happens. The first one being that the labs and police are not well equipped. We don’t have enough police officers to investigate all the cases. Our laboratories are not developed and the most advanced one has to deal with a large number of cases due to which things get slow. Police are not trained enough to deal with the pieces of evidence. One of the biggest examples is the Aarushi Talwar case, in which due to mixing up of evidence on behalf of Uttar Pradesh Police it became quite difficult to solve the case. In the same case, there occurred typographical errors which caused a lot of confusion.
Sr. Adv. Rebecca John said that “In India, typographical errors cause life imprisonment”. One of the other reasons is that our courts are still not digitized. Where in countries like Greece use the digital medium to do the same things and have proved the efficiency of such methods. Also, India still hasn’t adopted the complete disclosure in terms of pieces of evidence found by the prosecution with the accused. In our country, there is no compulsion on the prosecution to declare all the pieces of evidence against the accused. They are bound to disclose only those pieces of evidence which they will use in court. What prosecution forgets that it’s duty is not towards the victim but the state. If he or she gets any proof that would lead to the acquittal of the accused they should share it with the accused to save the time of the court.
If we change, we might soon be able to improve our criminal justice system drastically.
- Rajib Hassan, “The Elements and Stages of a Crime”, Legal Service India, http://www.legalservicesindia.com/article/1228/The-Elements-and-Stages-of-a-Crime.html
- Sir William Blackstone, Commentaries on the Laws of England, vol. 4, 17th ed, 1830, p. 5
- Qwerty9729, “Types of Bail-In India And Conditions For Grant For Bail”, Legal Services India, http://www.legalserviceindia.com/legal/article-1804-types-of-bail-in-india-and-conditions-for-grant-for-bail.html
- Vijay Pal Dalmia, “India: Process Of Trial Of Criminal Cases In India”, Mondaq,( June 5th,2014),https://www.mondaq.com/india/crime/318472/process-of-trial-of-criminal-cases-in-india?signup=true
- “First Information Report (FIR)”, Legal Services India,http://www.legalserviceindia.com/Criminallaws/fir.htm
- Sylvine, “Mens Rea And Actus Reus – Essentials Of A Crime”, Ipleaders, (Jun. 24, 2016), https://blog.ipleaders.in/mens-rea-actus-reus-essentials-crime/,
- Edwin H. Sutherland, Principles of Criminology,1934
- Raffaele Garofalo, “Criminology”, Little, Brown and Company, 1914.
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