UNIT III – GENERAL PRINCIPLES OF CRIMINAL PLEADINGS1

NOTES

Sub Unit I: BAIL

In general, the term bail means the temporary release of an accused person on a temporary basis.
As the term bail has been derived from the French word bailer which means to deliver or to give.
The term bail has been used for a long time. As defined in the oxford dictionary bail is the
absolution of an accused person temporarily awaiting the trial or a sum of money is lodged by
the accused person as a guarantee for his appearance in the court. The provisions regarding the
bail and bonds have been specified from section 436 to 450 of the Criminal Procedure Code.
These provisions envisaged in the code gives the brief regarding the provisions of the bail.
The concept of bail is that it acts as security lodged by the accused person on the basis of which
he can be released on a temporary basis but needs to appear in court whenever required by the
court. The process of bail takes place while the trial of the accused person is still pending.
Generally, a person seeks this option in order to get himself released from the police custody.
The process of bail is a legitimate process.
TYPES OF OFFENCES
1. Bailable offence
2. Non-bailable offence
BAILABLE OFFENCE
The bailable offence is the type of offence in which an accused person is granted bail. This type
of offences is generally punishable by the court with less than three years of imprisonment. In
the case of bailable offence the chances of getting bail are much higher. Under section 2(a) of the
code, the term bailable offence has been described as the offence which has been specified in the
first schedule of the code or if the offence is considered to be bailable by the law in force during
the time.
NON-BAILABLE OFFENCE
The non-bailable offence is the type of offence for which an accused person is not entitled to get
bail. These are the offences which are non-bailable nature and are not shown as bailable under
the first schedule of the code. These offences are grievous in nature when compared to bailable
offences. In the case of non-bailable offences the punishment is three years or more.
Cases in which bail may be granted In the case of bailable offence it is mandatory to grant bail to
the arrested person and in case of non-bailable offence it depends upon the discretion of the
1
Notes on Sub Unit II, Section 125 CrPC is not provided, please read any standard book for that and few landmark
judgments or R.V Kelkar’s Lecture on Criminal Procedure, pp 393-408.
court. Section 436 of the code talks about the cases in which bail can be taken and section 437 of
the code talks about the cases in which the bail may be taken in case of non-bailable cases.
CASES IN WHICH BAIL TO BE TAKEN (SECTION 436 OF CR.PC)
In this case, if a person who is not guilty of any non-bailable offence and gets arrested without a
warrant by the police authority and is prepared to give bail, then it is the duty of the police
authorities to release him. The person arrested may be released on the bond without submitting
any sureties.
APPEALABILITY OF THE ORDER (SECTION 439 OF THE CODE)
Section 439 of the code states that any orders passed under section 436 of the code shall be
appealable. The order made by the magistrate to the session’s judge is appealable. In case when
the court of sessions passes an order to the court where an appeal lies from an order made by
such court.
INVESTIGATION INCOMPLETE (SECTION 167 OF THE CODE)
Under section 57 of the code states that a person arrested or taken into custody has to be released
after 24 hours. Within those 24 hours, he has to be presented before the magistrate with a notice.
The period of 24 hours can be extended if the investigation regarding the offence or crime
committed has not been completed. Section 167 states that in order to extend the period of 24
hours for the purpose of investigation prior order has to be obtained from the magistrate. If the
investigation is not completed the person arrested or detained shall be released. The period of
detention shall not exceed 90 days (in case where the offence is punishable with the death
penalty or life imprisonment) and 60 days (in case where the offence is punishable for a term less
than ten years).
THE MAXIMUM PERIOD FOR WHICH AN UNDER-TRIAL PRISONER CAN BE
DETAINED (SECTION 436-A OF THE CODE)
Under section 436 A of the code states that the detention period for an undertrial prisoner other
than the one who is accused of the criminal offences punishable with death or life imprisonment
shall be released from detention if the person has been detained for one half of the maximum
sentence provided for the offence committed by him.
ANTICIPATORY BAIL
Under section 438 of the code, it has been stated that the term anticipatory bail can be understood
through the expression anticipatory. Anticipatory bail is the bail granted by the court in
anticipation of the arrest. When this bail is granted to a person it ensures that in case if the person
is arrested in the near future then such person shall be released on this anticipatory bail. No
questions can be raised on the release unless the person executing this bail is arrested and
therefore it totally depends upon the arrest that the order granting such bail becomes operative.
The following provision of section 438 of the code was recommended by the law commission.
On its 48th report, they expressed their observations regarding the provision of anticipatory bail
and stated that such provision is a useful addition to the code but it should be used in
extraordinary or exceptional cases only.
Section 438 of the code runs as follows:
When any person having the reasonable apprehension that he may be accused of committing the
offence of non-bailable nature then such person can apply for anticipatory bail in the high court
or the sessions court. The role of the court having competent jurisdiction shall give him direction
under section 438 of the code that during the time when he gets arrested he shall be released on
bail after taking into consideration the following conditions shall accept or reject the application
filed for anticipatory bail by the person getting arrested.
Following are the factors:

 The accusation made shall be grave and serious

 Likelihood of the applicant to flee or abscond from justice
 When the accusation is made with the intention of humiliating or injuring the person by
making him arrested through that accusation.
Conditions under section 438 of the code involve the following things.
The applicant filing for the anticipatory bail shall have the reasonable apprehension of getting
arrested
The arrest of such person shall be in respect of the accusation of him committing non-bailable
offence or cognizable offence and the courts having competent jurisdiction shall direct that in the
event of the arrest the person shall be released.
Following conditions are imposed on the person seeking the anticipatory bail by the courts
having competent jurisdiction

 It is the duty of the person to appear or make himself available whenever required by the
police officials for the investigation.
 He must not induce or threat for dissuading him from disclosing facts of the case.
 The applicant shall not go outside the territory of India without taking the prior
permission of the court. Or if the following conditions stated in point one and two are
fulfilled and such person is ready to give bail, he should be released from custody
subject.
Amiya kumar v. State of West Bengal 1978 Cri.LJ 288
In the instant case, it was held that section 438 of the code empowers both the high court and the
session’s court to grant the anticipatory bail. Both the high court and the Sessions court have the
competency to grant this bail. If the Sessions court rejects the petition filed by the applicant for
the anticipatory bail then he can’t file the petition for the same in the high court.

D.R. Naik v. the State of Maharashtra 1989 Cri.LJ 252

In the instant case, it was held that if a person files an application for anticipatory bail and it is
rejected by the sessions court, this will not put the bar over the person filing the petition to
approach High court. But if the person first approaches the high court and the petition filed by
him gets rejected, then he can’t approach the session’s court for filing the petition on the same
ground.
MALIMATH COMMITTEE REPORT
The Malimath committee gave its observation regarding the provision of anticipatory bail. They
stated that the provision of section 438 is often misused by the people. Such misuse of the
provision is illegal. The committee after the following observation suggested two conditions or
requirements for the purpose of retaining the provision.
The following conditions are as follows:
Before granting the anticipatory bail the court shall hear the public or the government prosecutor
When a person files a petition of anticipatory bail it must be heard by a court having competent
jurisdiction.
DISTINCTION BETWEEN BAIL AND THE ANTICIPATORY BAIL
Under section 437 of the code, it has been stated that a regular bail is available and granted to a
person after the arrest when he is in the judicial or police custody, however in the case of an
anticipatory bail is available to a person before the arrest or if the person has reasonable
apprehension of arrest.

Sub Unit III: FIRST INFORMATION REPORT (FIR)

‘An information given under sub-section (1) of section 154 CrPC is commonly known as first
information report (FIR)’
The information given to the Police Officer for registration of a case must be authentic and bona
fide. It should be traceable to an individual who should be responsible for imparting information
and not be gossip. It may or may not be hearsay but the person who reports of the said hearsay
should take responsibility for it and mention the source of information. FIR should not be result
of an irresponsible rumour.
If the information given by the woman against whom an offence u/s 326A,326 B ,354 , 354A-
D,376,376A-E and 509 of Indian Penal Code is alleged then such information shall be recorded
by a women police officer.
WHO CAN LODGE A FIR? 
FIR can be filed by the following persons:
1. By an aggrieved person or somebody on his behalf.
2. Any person who is aware of the offence by being either:
(a) An eye witness and/or
(b) hearsay account.
3. By the accused himself.
4. By the SHO on his own knowledge or information even when a cognizable offence is
committed in view of an officer in charge he can register a case himself however he is not
bound to take down in writing any information and even if the information is only by a
medical certificate upon arrival of the injured, then the (SHO) should enter it in daily
diary and go to hospital for recording detailed statement of injured.
In all the cases the information must be definite, not vague, authentic, not baseless, gossip or
rumour, clearly making out a cognizable case. It is to be kept in mind that the person
delivering the hearsay is required to mention the source of his information and submit it
along with his/her signature to prevent it from amounting to false rumour.
WHERE FIR SHOULD BE FILED?
Any person can lodge a first Information Report (FIR). It is not necessary for him to be the
victim or the injured or an eye-witness. It is not essential for a First Information Report to be true
and hence it can be a hearsay and need not necessarily be given by the person who has firsthand
knowledge of the facts. 
WHEN SHOULD IT BE FILED? 
An FIR should be filed in the police station of the concerned area in whose jurisdiction the
offence took place.
Though it is secondary, however it is an equally important object to obtain early information of
an alleged criminal activity and to record the circumstances before the trial, lest such
circumstances are forgotten or embellished.
In the case of Habib v State of Bihar, the court stated the principle object of   FIR which was to
set the criminal law in motion. In the case of P.Sirajuddin v State of Madras, it has been held
that to obtain an early information of an alleged offence from the informant and to put into
writing the statement before his memory fails or before he gets the time and opportunity to
embellish it, FIR is necessary.
ESSENTIALS OF FIR: 
The essential conditions to be known while reporting/recording information are
1. What information needs to be conveyed?
2. In what capacity the crime happened?
3. Who committed the crime?
4. Against whom the crime was committed?
5. When was the crime initiated?
6. Where did the crime take place?
7. What was the motive behind?
8. The way of occurrence, if any
9. Witnesses, if any.
10. If anything was taken away?
11. What traces were left by the accused?
12. Any causality, if at all.
PROCEDURE OF FILING FIR 
Section 154 of the Criminal Procedure Code, 1973 lays down the procedure for lodging an FIR-
Written Form
When the information about the commission of a cognizable offence is given orally, the police
must write it down.
Read Over
A person giving the information or making a complaint, can demand that the information
recorded by the police to be read over to him/her.
Verification
One should sign the report only after verifying that the information recorded by the police is as
per the details given by you.
Signature
Once the information has been recorded by the police, it must be signed by the person giving the
information. It is to to kept in mind that people who are unable to read or write are expected to
put their left thumb impression on the document after being satisfied that it is a correct record.
DIFFERENCE BETWEEN FIR & POLICE COMPLAINT

BASIS   FIR POLICE COMPLAINT

It implies to the complaint Police complaint means an

registered with the police by appeal made to the
MEANING the plaintiff or any other magistrate, which includes an
person having knowledge of allegation that a crime has
the cognizable offence. taken place.

FORMAT There is prescribed format No such prescribed format

MADE TO Police officer Metropolitan magistrate

Both cognizable and non-

Recorded only of cognizable
OFFENCE cognizable offences are
offences
recorded.

Aggrieved party or the Anyone subject to certain

WHO CAN SUBMIT?
accused, or any such person. exceptions.

DECISION BY SUPREME COURT

Directions to be followed in regards to Registration of an FIR, are discussed below:
(i) It is mandatory under section 154 of the Code to get a FIR registered, if the information
discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a
situation.
(ii) A preliminary inquiry may be conducted only to ascertain whether cognizable offence is
disclosed or not, in case the information received does not disclose a cognizable offence but
indicates the necessity for an inquiry,
(iii) FIR must be registered, if the inquiry discloses the commission of a cognizable offence.a
copy of the entry of such closure must be supplied to the first informant forthwith and not later
than one week in cases where preliminary inquiry ends in closing the complaint. Reasons must
be disclosed and stated in brief for the complaint being closed and not being proceeded further.

(iv) No police officer can avoid his duty of registering offence if cognizable offence has been
committed and is hence disclosed. Strict steps must be taken against erring officers who do not
register the FIR in case of cognizable offences.
(v) The scope of preliminary inquiry is only to ascertain whether the information reveals any
cognizable offence and not to verify the veracity of the information received.

(vi) The category of cases in which preliminary inquiry may be made are as under-
(a) Cases of Matrimonial disputes family disputes
(b) Matters of Commercial offences
(c) Cases involving medical negligence.
(d) Matters of Corruption cases
(e) Abnormal delayed cases where in initiating criminal prosecution, for example, over 3
months have already passed.
The above are non-exhaustive conditions.
(vii) A preliminary inquiry should be made time bound and in any case it should not exceed 7
days while ensuring and protecting the rights of the accused and the complainant. Any reason or
fact of such delay must be reflected in the General Diary entry.
(viii) It is a mandatory practice as directed by the Supreme Court that since the General
Diary/Station Diary/Daily Diary is the record of all information received in a police station, all
information relating to cognizable offences, either resulting in registration of FIR or leading to
an inquiry, must be meticulously reflected in the diary, no matter even if it is a preliminary
inquiry.

Please add few important cases like D.K Basu, Lalita Kumari which have been taught at Cr.PC
class.