Pre Trial procedure in criminal law

Pre-trial procedure in criminal matters in India

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Introduction

Criminal Procedure Code can be divided into three parts, with reference to the stage of proceedings it deals with, which are, the pre-trial stage, the trial stage and the post-trial stage. A fundamental portion of the Criminal Procedure Code deals with the pre-trial stage which may be referred to the investigation. 

Investigation includes every documentation, search, collection of evidence, recording of statements of every person related, including the victim, the accused, the witnesses, the alibis and others so related.

The pre-trial procedure

The whole of the pre-trial procedure is stated in the part-XII of the Criminal Procedure Code from section 154 to section 176. These sections are to outline the basic procedure and actions to be taken by the investigative officers during the investigation of the offence. These sections are supplemented by other sections of the Code which provide for  the procedure to acquire evidence, record statements and file warrants. Jessica lal murder case an excellent example to witness the function of each provision found within the pre-trial provisions..

The pre-trial phase of a criminal proceeding starts with the filing of the first information report (FIR) and ends with the filing of the chargesheet with the Magistrate if the investigation conducted has convinced the investigating officer to bring the matter to trial. We shall now delve into this pre-trial phase by analysing the various steps which lead to the filing of the chargesheet. 

First Information of the offence

The procedure of investigation starts on the investigation officer receiving information about the alleged commission of an offence. The first information that is received and recorded is known as the F.I.R. (First Information Report)1. Every information given to the police whether oral or written must be recorded into the general diary, a book kept at the Police station. If the first information is received via the telephonic or oral method, i.e, the person comes into the police station and narrates the commission of the offence, it should be reduced to writing and must be read to the person providing it. Such a complaint given by statement and reduced to writing is colloquially called Fard Bayan on the basis of which the FIR is registered. The Code provides that an FIR filed by a woman with respect to certain offences against women must be recorded by a woman police officer only. 

In the case of a cognizable offence (offences of a lesser gravity and generally punished with a period of imprisonment of less than 3 years), the FIR has to be registered before any investigation on the matter can commence. This was further stated by the High Court of Calcutta in the case of Tapan Kumar2. Therefore, whether with cognizable offences or non-cognizable offences, the FIR is the founding stone to the initiation of any investigation.

An interesting proposition arose in the Jessica lal murder case3 with respect to deciding which communication should be considered to be the FIR. The court observed that there were three communications made to police at three different times and one of them was made to the police at the hospital, where Jessica Lal was declared dead, by a Mr. Shyam Munshi after which the FIR was registered. The question that arose was, which communication among the three should be considered as the first information?

The court held that the information received by Shyam Munshi at the hospital must be considered as the first information of the offence, as the other two communications were telephonic and hence were confusing in nature.

So the first information that reveals sufficient information on an alleged commission of an offence is considered to be the first initial information.

Police investigation

Once a FIR has been filed, a Investigating Officer can commence investigation on the matter which takes form in the following ways,

Examination of witnesses

The investigation starts with recording the statements of the victims and the witnesses of the alleged incident(if any). This is called the examination of witnesses4

The FIR provides the initial information about the offence, the statements of the people concerned provides a deeper insight into the sequence in which the offence was committed or the whole story of the offence that occurred.

For instance, 

‘A’ calls to the police station and reports a theft happened in his house, that is the initial information of the offence. After the FIR is registered on the basis of the information provided by ‘A’, Investigation starts and the investigating officer asks ‘B’ about any information regarding the incident or of the day of the incident, those statements which will be provided by ‘B’ will be recorded as statements or witness examination statements under section 161 of the Code. 

Any statement or information provided by the person under the examination of section 161 is not admissible in the court of law. Sub-section 2 of section 161, provides the power to the person being examined to refrain from giving any information which can result in self-incrimination5. The same is safeguarded as a fundamental right provided under Article 20 sub-clause 36.

Search for evidence7 

During an investigation, the investigating team is required to collect evidence to support or deny the charges that have been made in the FIR, power for conducting a search is provided by Section 165 of the CrPC, 1973. This section is supported by section 938 which defines when a search warrant may be issued. For every evidence/document that the investigating team seizes, they are obligated to produce a seizure memo recording and indicating all the items they have collected from the search location. All the evidence that is seized by the investigating team is to be approved and be original and not fake copies or fabricated by any person concerned with the case.

Evidence is an object or document which gives light to a fact, for example, in case of a murder, the murder weapon, the CCTV footage (if any), etc. and all the evidences are adimissibe in the court of law, unlike the witness examination statements taken by during the investigation by the investigation officer under section 161.

One of those type of evidence is Confession statement9 (if any), which just like the statement provided under section 161 to the investigation officer, but the difference between the two statements is that, firstly, the confession statement is provided in front of a Magistrate and not a police officer; secondly, this statement so provided by a person in front of a magistrate is admissible in the court, unlike the statements provided under section 161. A confession statement does not mean a statement in which a person accepts the alleged crime on which the trial and investigation is conducted. A confession statement means, any statement that reveals a new material fact regarding the case.

Arrest of accused or suspect

The investigation that is conducted by the police is done on the information provided by the witnesses, victim and the accused. On the basis of the investigation, the arrest of the accused is made if circumstances provided by the Code require the same. 

In some cases the accused can be arrested right after the registration of the FIR, but for that there is a protection provided to accused under section 57 “person arrested not to be detained more than twenty-four hours”10, means that any person whether accused or suspect who is arrested by the investigating team, cannot be detained for more than 24hrs, until there is a special order by the magistrate11 confirming said arrest. These 24 hours are excluding the time of travel from the station to the magistrate.

Arrests are made by the investigating officer under the power provided by the court of law by issuing the arrest warrant under section 7012. The person arrested by the investigation on a warrant must be produced in front of the magistrate as soon as the arrest is made, and the delay in bringing the arrested person in front of the magistrate cannot exceed twenty-four hours as per section 73 of the Criminal Procedure Code,,,, ,1973.

In some cases when the person against whom an arrest warrant is issued, absconds or conceals himself/herself so that the warrant cannot be executed, the court can issue a proclamation/order against that person requiring him/her to appear at a place and time specified by the court of law13.

Charge sheet or Final report14

Preparation of the charge sheet is the final step in the process of investigation in which the Investigating Officer reports about every finding he made during the investigation, the arrested suspect and what is the evidence collected during statements taken from the Victim, the accused and the witnesses. The charge sheet is the final document prepared by the investigating officer. This document describes the detailed steps that were taken by the IO during the investigation. Submission of the charge sheet to the magistrate is done by a superior officer, who is appointed by the state government by general or special order15

Charge sheet is the report on the basis of which the magistrate concerned would be taking cognizance of the offence, and by doing so,  will be acknowledging whether the trial against the alleged accused of the offence should be conducted or not. A charge sheet has to be submitted within the period of 90 days from the registration of the FIR. If the investigating officer is unable to complete the investigation of the offence because of some important testimonial evidence, he/she has the power to submit the charge sheet without that evidence and can re-submit a supplementary charge sheet with that evidence to be considered in the case.

Right of an Accused person pre-trial

Every person has rights that protect him/her from getting violated during any process. Similarly, an accused person also has some rights provided to him/her by the law so he/she can protect themselves and the right from getting violated by the police or during the investigation process. Those rights are as follows:

  1. Right to know about the accusations and offence he/she has been charged under.
  2. Right against wrongful arrest16.
  3. Right of privacy and protection against unlawful search.
  4. Right of self -incrimination17.
  5. Right against double jeopardy18.
  6. Right against the ex-post facto law or retrospective effect of law.
  7. Right to bail19.
  8. Right to legal aid.
  9. Right to a free and fair trial.

Conclusion 

The pre-trial procedure is the first action that has taken place against the offence that has alleged occurred. An investigation is the most crucial part of any trial, because if the investigation is faulty, the whole trial will be limited on those grounds.

The investigation is supposed to happen in the light of the procedure that has been established by the law. This procedure established protects our right to fair trial in the court of law. Every stage of the procedure steps towards confirming or discharging the accusations on the person allegedly accused. 

In cases where the summons are not complied with or serious offences, the court issues a warrant in the prescribed form. Just like summons, the warrant is also made in writing, sealed and signed by the Court.If the accused tries to abscond and avoids warrants, the Court can issue a proclamation, giving a person a final chance to appear before the Court. If the Court seems necessary it can also attach the property of the person proclaimed.

With all the hard procedure and structure following the law has provided many rights for the persons involved in the pre-trial process and mainly for the accused. As, the accused is the one that has a lot of rights about to get violated. 

Endnotes

1.  Section 154 and 155 of Criminal Procedure Code, 1973

2.  Supt. Of police, CBI vs Me Tapan kumar singh (2003) Cr. L.J 2322 (S.C.)

3.  Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1

4.  Section 161 of Criminal Procedure Code, 1973 

5.  Section 161(2) of Criminal Procedure Code, 1973

6.  Constitution of india

7.  Section 165 of Criminal Procedure Code, 1973

8.  Criminal Procedure Code, 1973

9.  Section 164 of Criminal Procedure Code, 1973

10.  Section 57 of Criminal Procedure Code, 1973

11.  Section 167 of Criminal Procedure Code, 1973

12.  Section 70 of Criminal Procedure Code, 1973

13.  Section 82 of Criminal Procedure Code, 1973

14.  Section 173 of Criminal Procedure Code, 1973

15.  Section 158 of Criminal Procedure Code, 1973

16.  Section 57 of Criminal Procedure Code, 1973  

17. Section 161(2) of Criminal Procedure Code, 1973 and Article 20(3) of The Constitution of India

18.  Article 20(2) of The Constitution of India

19.  Section 50 of Criminal Procedure Code, 1973

Pre trial procedure in crimimal matters in India - Harshit Saxena

Harshit Saxena

Author

Mr Harshit Saxena hails from Symbiosis International University and spends most of his time in writing and directing plays. His interest lies in Indian criminal law. His other passions are playing football and debating. For any clarifications, feedback, and advice, you can reach him at harshitsaxena22197@gmail.com

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