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KLE LAW ACADEMY BELAGAVI
(Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai)
STUDY MATERIAL
for
CRIMINAL LAW II
Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi
Compiled by
Mr. Harsh Pratap, Asst. Prof.
KLE Society’s Law College, Bengaluru
This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided.
CODE OF CRIMINAL PROCEDURE MEANING OF PROCEDURE FUNCTIONARIES UNDER THE CODE The Police Public Prosecutors Public Prosecutors and additional public prosecutors for High Court Public Prosecutors and Additional Public Prosecutors for districts Assistant Public Prosecutors Role of the Prosecutor Court The Defence Counsel FIRST INFORMATION REPORT Object Essential Conditions of F.I.R. Information in Cognizable Cases [S.154] What Information is Considered in an F.I.R? Information received in the following cases is not considered as FIR: Evidentiary Value of FIR Delay in Filing FIR CONFESSION Scope and relevance of statements under section 164 of CrPC Types of confessions: Inculpatory and Exculpatory confessions From of confession Who can record confession statements? Object of recording 164 statements Procedural safeguards
Knowledge of Accusation and Providing Adequate Opportunity to Accused Trial in Presence of the Accused Evidence to be Taken in Presence of Accused Cross-Examination of Prosecution Witnesses Prohibition of Double Jeopardy Legal Aid ARREST Types of Arrest Arrest by Warrant Arrest Without Warrant Arrest on Refusal to Give Name and Residence Procedure of Arrest by a Private Person Arrest by Magistrate Procedure of Arrest Additional powers for effecting arrest search of place Pursuit of offenders Power, on escape, to pursue and retake Post arrest procedures Medical examination of accused RIGHTS OF AN ARRESTED PERSON Right to be informed of the grounds of arrest Right to be released on bail Right to be produced before a magistrate Protection against arrest and detention Right to consult a legal practitioner Right to free legal aid Right to be examined by a medical practitioner
PROCESS TO COMPEL APPEARANCE
The process to compel the appearance Summons Warrant The process to compel the production of things Proclamation of offender and attachment of properties The warrant in lieu of summons LIMITATION ON TAKING COGNIZANCE Introduction Limits To Take The Cognizance Of Offences Section 467 Section 468 Non- Applicability of Section 468 FRAMING OF CHARGES Purpose of Charge Framing Contents of Charge Particulars as to Time, Place and Person Effect of Error When Court Can Alter or Amend Charge Basic Rule as to Charge and Trial of Charge Exceptions to the Basic Rule Trial of Three Offences of the Same Kind Within a Year Trial for More Than One Offence When it is Doubtful What Offence has been Committed Persons Who may be Charged Jointly JUDGMENT Object and Scope Form and contents of the judgment under Section 353 Language and contents of judgment
Withdrawal of cases by Judicial Magistrates Making over or withdrawal of cases by Executive Magistrates SUSPENSION AND REMISSION OF SENTENCES Constitutional provisions Suspension or remission of sentences Commutation of sentence Restriction on powers of remission or commutation in certain cases PLEA BARGANING Plea Bargaining in India Section 265-A (Application of Chapter) Section 265-B ( Application for Plea Bargaining) Section 265-C (Guidelines for Mutually satisfactory disposition) Section 265-D (Report of the mutually satisfactory disposition) Section 265-E (Disposal of the case) Section 265-F (Judgment of the Court) Section 265-G (Finality of Judgment) Section 265-I (Period of detention undergone by the accused to be set off against the sentence of imprisonment) Benefits of Plea Bargaining COMPOUNDING OF OFFENCES Compoundable Offences Non-Compoundable Offences Compoundable offences Compounding without the permission of the Court: Court permission is required before compounding – Other provision governing Compounding of Offences Effect of Compounding of an Offence Prohibition Regarding Compounding of Offences
REHABILITATION OF JUVENILES
Introduction Aftercare care organisations Sponsorship Foster care Adoption Prevention, dealing, treatment, rehabilitation and reintegration of juvenile delinquents Prevention Dealing Treatment Rehabilitation and Reintegration PROBATION OFFICER Introduction Who is a Probation Officer Responsibilities of Probation Officer Duties of Probation Officer Analysis and monitoring Supervision and counselling Link to the Court Decision making Probationer rehabilitation and after care Appointment of Probation Officer CHILD WELFARE COMMITTEE Powers Functions and Responsibilities JUVENILE JUSTICE BOARD Constitution Composition of Bench under Juvenile Justice Act, 2015
INTRODUCTORY AND PRE-TRIAL PROCESS
MEANING OF PROCEDURE
Criminal law is one of the most important branches of law because it deals with the most serious offences and it helps to protect the society from falling into the state of anarchy. It consists of two branches- procedural and substantive law. Procedural law provides machinery for the implementation of substantive criminal law. Substantive law provides a different kind of offences and the punishment which is imposed on the offenders. If there is no procedural law, the substantive laws are of no use because no one will be able to know the way how the offenders will be prosecuted and they will be let off. Thus, both the law are complementary with each other. The main objective of criminal procedure is to provide a full and fair trial to the accused by taking into consideration the principles of natural justice. FUNCTIONARIES UNDER THE CODE There are various functionaries under the Code of Criminal Procedure,1973 who help to regulate the various provisions of the code. The functionaries are essential for the proper functioning of the code. The various functionaries mentioned under the code are as follows-
1. The Police The Police Officer is an important authority who is the backbone of criminal law in India. They are responsible for maintaining the law and order of the country. The police officers have various powers and functions that help to prevent various crimes happening in our country. There is no definition of the term “Police” in the Code of Criminal Procedure but the term is defined in the Police Act of 1861.
2. Public Prosecutors Section 24 of the Code of Criminal Procedure deals with the Public Prosecutor. The main function of the office of Public Prosecutor is to administer justice and to secure the public purpose entrusted with him. The Public Prosecutor is an independent statutory authority and is not a part of any investigating agency. It is mandatory to appoint a Public Prosecutor in all the cases when the prosecution is against the State. The relationship between the Public Prosecutor and the Government is that of a counsel and a client. The Public Prosecutor shall never be partial to either the accused or prosecution. There are various classes of Public Prosecutor like, 1. Public Prosecutors appointed by the State Government and the Central Government; 2. Additional Public Prosecutors appointed by the State Government; 3. Special Public Prosecutors appointed by the Central Government; 4. Special Public Prosecutors appointed by the State Government. Public Prosecutors and additional public prosecutors for High Court Section 24(1) of the Code of Criminal Procedure provides powers to the Central Government or State Government to appoint a Public Prosecutor for every High Court. They can also appoint one or more Additional Public Prosecutors. The appropriate Government can appoint the Public Prosecutors after consultation with the High Court. The eligibility of the person to be appointed as a Public Prosecutor is that he should be practising as an Advocate for not less than seven years. Public Prosecutors and Additional Public Prosecutors for districts Section 24 provides various rules regarding the appointment of Public Prosecutors and Additional Public Prosecutors for districts. The Central Government can appoint one or more Public Prosecutors for conducting cases in any district or local area. The State Government can also appoint one or more Additional Public Prosecutors for the district. The Public
Criminal Procedure. Section 26 of this code mentions that the High Court, the Court of Session or any other Court as specified in the First Schedule of the Code of Criminal Procedure is eligible to try offences provided under the Indian Penal Code. Section 28, Section 29 and Section 30 deals with the various kinds of sentences that can be passed by different Courts which helps the procedure of trial and also the powers between the Courts get distributed properly. The Courts govern the entire process of trial and acts as a regulating authority.
4. The Defence Counsel Section 303 of the Criminal Procedure Code provides this right to appoint a defence counsel of their choice. The right guaranteed under this Section is indispensable as it guarantees a fair trial.
FIRST INFORMATION REPORT
The term ‘First Information Report’ has not been defined in the Code of Criminal Procedure. The report first recorded by the police relating to the commission of a cognizable case is the First Information Report giving information on the cognizable crime. This is the information on the basis of which investigation begins. The FIR must be in writing. Object The main objective of filing F.I.R. is to set the criminal law in motion and also to enable the police officer to start the investigation of the crime committed and collect all the possible pieces of evidence as soon as possible. Essential Conditions of F.I.R. In Moni Mohan v. Emperor AIR 1931 Cal, it was decided that the essential conditions of F.I.R. are:
- It must be a piece of information.
- It must be in writing. If given in writing, should be reduced into writing by the concerned police officer.
- The main act or crime should be cognizable in nature, not the ones subsequent to the main act. The F.I.R. must be in the nature of complaint or accusation with the object of getting the law in motion. Information in Cognizable Cases [S.154]
- Telephonic information, unless it has been given by a known person who discloses his identity and the message contains all the necessary facts which constitute an offence and such a message is reduced to writing by S.H.O.
- Information of mere assemblage of some persons.
- Indefinite, Vague and unauthorized information. Evidentiary Value of FIR An FIR is not a substantive piece of evidence. That is, it cannot be considered as evidence of facts stated therein. However, FIR may be used for the following purposes:
- It can be used to corroborate an informant witness u/s 157 of Evidence Act. But it cannot be used to contradict or discredit other witnesses.
- It can be used to contradict an informant witness u/s 145 of Evidence Act.
- FIR can be used by the defence to impeach the credit of the maker under sec. 155(3) of the Evidence Act.
- A non-confessional FIR given by an accused can be used as an admission against him u/s 21 of Evidence Act.
- FIR can be used as a dying declaration as substantive evidence If it relates to the cause or occasion or circumstances and facts which resulted in the informant’s death. within the meaning of section 32(1) of the Evidence Act. If the accused himself lodges the FIR, it cannot be used for corroboration or contradiction because the accused cannot be a prosecution witness, and he would very rarely offer himself to be a defence witness u/s 315 of the Code. Delay in Filing FIR The object of early filing of F.I.R. to the police as soon as possible, in respect of the commission of the offence is to obtain and receive fresh information regarding the circumstances and facts which tend to result in the commission of the offence. The FIR shall have better corroborative value if it is recorded and taken before the informant’s memory fades and before he starts to forget the facts. Thus, if there is a delay in lodging FIR and the delay is unreasonable and unexplained, it is likely to create scope for suspicion or
introduction of a concocted story by the prosecution. It is the duty of the prosecution to explain the delay in lodging FIR. If satisfactorily explained, it does not lose its evidentiary value. However, mere delay in lodging FIR is not fatal to the prosecution case. CONFESSION Scope and relevance of statements under section 164 of CrPC Confession means a formal statement admitting that one is guilty of a crime. Confession is not defined in the Evidence Act. Confession includes admission, but an admission is not confession. A confession either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. If a statement falls short of such a plenary acknowledgment of guilt, it would not be a confession even though the statement is of some incriminating fact which taken along with other evidence tends to prove the guilt of the accused. Such a statement is only an admission but not a confession. The person making it states something against himself, therefore, it should be made in surroundings, which are free from suspicion. Otherwise, it violates the constitutional guarantee under Article 20(3) so that person accused of an offence shall be compelled to be a witness against himself. A direct acknowledgement of guilt should be regarded as confession. In case of Pakala Narayana Swami Vs emperor AIR 1939 P.C. 47 the question before the court was whether statements from which the guilt of an accused can be inferred amounts to a confession or not. it was held that “A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a confession, for example, an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused death with no explanation of any other man’s possession” Types of confessions: Inculpatory and Exculpatory confessions The confession to something wrong or which involves the accused of the guilt is inculpatory confession. And, the confession which absolves the accused of any guilt is exculpatory confession. From of confession
A question may arise as to why there is need to record the statement under section 164 of the code in addition to statement recorded under section 162 of the Code. The object of recording of statements of witnesses under section 164 of the Code is twofold; (1) to deter witnesses from changing their versions subsequently and (2) to get over the immunity from the prosecution in regard to information given by the witnesses under section 162 of the code. The other reason of recording statement of witnesses under section 164 of 17 the code is to minimize the chances of changing the versions by the witnesses at the trial under the fear of being involved in perjury. The object behind it that when during the course of investigation police records the statements under section 162 of the Code they cannot administer oath to the person making statement and cannot obtained his signature, but under section 164 of the Code, a magistrate recording statement of a person can administer oath to him and obtain his signature over the statement Certainly if a person makes and signs a statement then naturally he comes under moral obligation and chances of his turning hostile will be reduced.. But the evidence of witness whose statement is recorded under section 164 of the Code must be approached with caution. Procedural safeguards The Indian Constitution provides immunity to an accused against self-incrimination under Article 20(3) – ‘ No person accused of an offence shall be compelled to be a witness against himself’. It is based on the legal maxim “ nemo teneteur prodre accussare seipsum ”, which means “No man is obliged to be a witness against himself.” Confession is a self-incriminating^ statement and it has to be given voluntarily. Thus, section 164 contains various procedural safeguard to insure voluntary character of the confession. The magistrate shall record the confession in the manner provided in section 281 for recording the examination of the accused persons. It shall not only be signed by Magistrate, but also by the accused himself. The magistrate shall also append a memorandum at the foot of the record as laid down in the sub section (4). if he has no jurisdiction to inquire or try the offence, he shall forward the confession so recorded to the magistrate by whom the case is to be inquired into or tried. The provisions of the section 164 of the criminal Procedural Code and rules and guidelines framed by the Honourable High Court in this behalf providing for procedural safeguards etc, must be complied with not only in form, but also in essence. When
a confession is not recorded by the magistrate in the manner prescribed by the section 164 of Criminal Procedure Code, then it is not admissible in evidence. Evidentiary value of 164 statements Evidentiary value of statement recorded under section 164 CrPC is that, the statement cannot be treated as substantive evidence when the maker does not depose of such facts on oath during trial. before acting on a confession made before a judicial magistrate in terms of section 164, the court must be satisfied first that the procedural requirements laid down in sub section (2) to (4) are complied with. These are salutary safeguards to ensure that the confession is made voluntarily by the accused after being apprised of the implications of making such confession. The endeavour of court should be to apply its mind to the question whether the accused was free from threat duress or inducement at the time of making confession. Parmananda Vs state of Assam (2004(2) ALD Crl 657 The confession would not be ordinarily considered the basic for conviction. However, it is admissible, and conviction may also be based upon it if it is found truthful and voluntary and in a given case some corroboration is necessary. Confession which is not retracted even at the stage of trial and even accepted by the accused in the statement under section 313 CrPC can be fully relied upon. So, the conviction based thereon together with other circumstantial evidence is sustainable. The accused in his statement under section 313 CrPC or during cross- examination never suggested that his statement under section 164 CrPC is false. Allegation of presence of police officers at the time of recording the confession was without any material. Requirement of section 164(2) CrPC have been complied with. Such a confession statement was fit to be accepted.
