BQ Learning: Serious Crimes And Rights Of An Accused
BQ Learning is a special show that seeks to demystify financial markets, economic theories, legal processes and political structures.
In this series, we discuss citizens’ rights when interacting with the police in various circumstances -- from reporting a crime to being investigated.
What are the police’s powers of arrest in case of crimes like kidnapping, theft and dowry, among others. Do the accused have any rights? What’s the trial process? BloombergQuint spoke with advocate Omkar Mulekar to know the answers to these questions...
Cognisable Vs Non-Cognisable Offence
The Indian Penal Code distinguishes offences into cognisable and non-cognisable. An offence is cognisable where the police can arrest without a warrant, such as in case of a murder. In case of a non-cognisable offence like cheating or forgery, the police have no authority to arrest without a warrant. Cheating and forgery are cognisable offences, but the Supreme Court has ruled that matters which are financial in nature and where the punishment is up to seven years, a preliminary inquiry has to be conducted first before registration of an FIR. Only after that, the police may move for arrest.
For cognisable offences, the police can register an FIR after the arrest is made, while for non-cognisable offences, they can register the offence but can’t start an investigation without the local magistrate’s permission, said advocate Omkar Mulekar. In a situation where a person is caught red-handed while committing crimes like theft or robbery, the cops can make an arrest and file an FIR thereafter.
Serious Crimes: Trial Process
The police file a charge-sheet—a compilation of documents to prove charges against an accused—after the investigation is completed. The charge-sheet is sent to the relevant court, which decides if there’s sufficient evidence to proceed with the case. Then the trial starts where the prosecution presents its witnesses while the defense cross-examines them.
Thereafter, the accused’s statement is recorded—which is not on oath. This is to ensure that the accused have understood the charges and evidence produced against them. After this, the defense may call its witnesses, which however, is not compulsory. Then the matter comes to the stage of final hearing where the gamut of evidence from prosecution and defense is evaluated.
If there’s no evidence to indicate that the accused committed the offence, the judge can record an order of acquittal.
Trial Process: Rights Of An Accused
Some of the rights that the accused have during the trail process are right to know the grounds of arrest, right to silence, right to be taken before a magistrate without delay, right to a fair and speedy trial, right to consult a legal practitioner, right to be examined by a medical practitioner and right to free legal aid. Also, soon after an arrest, accused have the right to make a phone call to his family or lawyer.
Within 24 hours of arrest, the accused must be produced before a magistrate. At this stage, the accused can inform the court of any grievances against the investigation process or if any statement has been coerced from them. A person cannot be arrested without informing him of the crime that he is suspected to have committed. In most scenarios an incriminating statement coerced from an accused is not admissible, advocate Mulekar said.
Serious Crimes: Bail Process
An accused can seek release from the police custody through a bail, with the undertaking that he will be present in the court when required.
For certain offences like unlawful assembly, fabrication of false evidence, being armed with deadly weapon, furnishing false information and causing death by negligence, among others, an accused can apply for bail. But certain offences are categorised as non-bailable under the Criminal Procedure Code. These include murder, dowry death, abetment of suicide, rape, cruelty by husband or his relatives, among others. But the court has discretion to grant bail if certain conditions are met.
When an accused is produced before a magistrate for the first time, a remand report is filed which states why the custody of the accused is important. Advocate Mulekar said if the magistrate thinks the reasons put forth by the police were justified, the accused is sent to police custody. Generally, magistrates do not entertain bail applications until an accused is remanded to judicial custody, he said.
Police Vs Judicial Custody
Remands, meaning to send an accused back into custody, can be classified into two categories — police remand and judicial custody.
Police custody: the accused is sent to the investigating agency’s custody wherein they might be kept at a local police station. This makes it easier for the police to interrogate the accused and investigate the crime, Mulekar said. According to the Code of Criminal Procedure, police custody cannot be granted for more than 15 days.
Judicial custody: is in control of the local state or central government. The police can get access to the accused after acquiring permission from the jail superintendent, Mulekar said.
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