Page 35

CHAPTER-TWO
LAWS RELATING TO CRIMINAL
JUSTICE ADMINISTRATION
Justice forms the cornerstone of each nation’s law.

Alexis De Tocqueville

INTRODUCTION

The Constitution of India and the criminal justice administration have a reciprocal relationship. While the
Constitution sets certain ideals of securing justice to the people and maintaining unity and integrity of the
nation, the criminal justice administration plays a crucial role in their achievement The criminal justice
administration comprises of the police, bar, judiciary and prisons. These agencies constantly depend on
the constitutional support to their principles and procedures.

The people cannot enjoy their constitutional rights freely in an atmosphere of distrust, hatred, fear and
insecurity. Since it is the responsibility of the criminal justice administration to prevent violation of
people’s rights and maintain order, its performance has a direct impact on the process of achieving the
aims and objectives of the Constitution. Failure of the criminal justice administration not only vitiates the
constitutional guarantees but also jeopardizes the whole civil society leading it towards a chaotic situation
where the Constitution will be nothing but a
Page 36 Your Laws Your Rights

mockery.

Criminal justice refers to the agencies of government charged with enforcing law adjudicating crime, and
correcting conduct. The criminal justice system is essentially an instrument of social control: society
considers some behaviors so dangerous and destructive that it either strictly controls their occurrence or
outlaws them outright. It is the job of the agencies of justice to prevent these behaviours by apprehending
and punishing transgressors or deterring their future occurrence. Although society maintains other forms
of social control, such as the family, school and society, they are designed to deal with moral, not legal,
misbehavior .only the criminal justice system has the power to control crime and punish criminals.

The main objectives of the criminal justice system can be categorized as:

• Prevent the occurrence of crime.

• Punish the transgressors and the criminals.

• Rehabilitate the transgressors and the criminals.

• Compensate the victims as far as possible.

• Maintain law and order in the society.

• Deter the offenders from committing criminal act in the future.

Though both civil and criminal wings of the justice system influence the people; it is the criminal justice
administration that plays more crucial role in maintaining the people’s faith in the whole justice delivery
system. A weak criminal justice administration does not deter criminals. Instead, it encourages
criminality. Meager chances of being prosecuted or punished embolden the people to take law in their
own hands or take help of anti-social elements to evict their tenants, take revenge, etc. In such a situation
criminals thrive and law abiding citizens live under constant threat to their life, liberty, dignity and
property. This shakes the constitutional authority and erodes the people’s faith in the whole State
machinery. Therefore, the people while expecting fair criminal
Page 37 Laws Relating to Criminal Justice Administration

justice should also realize their legal and moral duties to help the criminal justice administration in its
pursuit to prevent and punish crime.

Therefore, two main statues which deals with administration of criminal cases in our country are Criminal
procedure code, i.e. Cr.P.C. and Indian penal code; Indian Penal Court being procedural and substantive
respectively. However, the societal norms also change with changing times and people who are part of
this society have to accept this change either by way of compromise or any other way in order to adjust
and make them still the part of the very same society. In earlier days there was no criminal law in
uncivilized society. Every man was liable to be attacked in his person or property at any time by any one.
The person attacked either succumbed or over-powered his opponent.

Procedure for Administration of Criminal - Justice

The procedure of administration of criminal justice in our country is divided into three stages namely
investigation, inquiry and trial. The Criminal procedure code 1973 provides for the procedure to be
followed in investigation, inquiry and trial, for every offence under the Indian Penal Code or under any
other law. Before discussing the procedure of administration, there are certain basic terms one should be
aware of these being;

1. Cognizable offences.

2. Non-Cognizable offences.

3. Inquiry.

4. Investigation.

Cognizable Offence

Cr.P.C. 1973 in general purulence means Section 2(c) of the Code defines ‘Cognizable Offence’ a serious
offence for which, and “Cognizable case” means a case in which, a police officer may, in accordance with
the First Schedule or under any other
Page 38 Your Laws Your Rights

law for the time being in force, arrest “without warrant”.

2. Non-Cognizable Offence

Cr.P.C. 1973 Section 2(1) defines ‘Non-cognizable offence’ less serious offences, means a case in which
a police officer has no authority to arrest “without warrant”

3. Inquiry

Cr.P.C. 1973 Section 2(g) “Inquiry” means every inquiry, other than a trial, conducted under this Code by
a Magistrate or Court.

4. Investigation

Cr.P.C. 1973 Section 2 (h) defines “Investigation” that includes all the proceedings under this Code for
the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf. Therefore, for a dispute to be resolved the said case has to go
through three stages i.e. inquiry investigation and trial and after this process is completed the judgment of
the court is passed by the Judge who decides the case and its outcome. Although the said process appears
to be simple and plain on paper but in practicality is cumbersome and time consuming which is defeating
the main essence of a criminal system, i.e. fair and expeditious justice and hence warrants a change now.

THE THREE STAGES : NAMELY INVESTIGATION, INQUIRY AND TRIAL

Investigation is a preliminary stage conducted by the police and usually starts after the recording of a First
Information Report (FIR) in the police station. Cr.P.C. 1973 Section 154 provides that any information
received in the police station in respect of a cognizable offence shall be reduced into writing, got signed
by the informant and entered in the concerned register. Section 156(1) requires the concerned officer to
investigate the facts and circumstances of such a case without any order from the Magistrate on this
behalf. If Magistrate receives information about
Page 39 Laws Relating to Criminal Justice Administration

commission of a cognizable offence he can order an investigation. In such cases, citizen is spared from
the trouble and expense of investigating and prosecuting the case.

Cr.P.C.1973 Section 157 of the code provides the procedure for investigation which is as; if the officer-
in-charge of a police station suspects the commission of an offence, from statement of FIR or when the
Magistrate directs or otherwise, the officer or any subordinate officer is duty-bound to proceed to the spot
to investigate facts and circumstances of the case and if necessary, takes measures for the discovery and
arrest of the offender. It primarily consists of ascertaining facts and circumstances of the case including
all the efforts of a police officer for collection of evidence: proceeding to the spot; ascertaining facts and
circumstances; discovery and arrest of the suspected offender; collection of evidence relating to the
commission of offence which may consist of the examination of various persons including the accused
and taking of their statements in writing and the search of places or seizure of things considered necessary
for the investigation and to be produced at the trial; formation of opinion as to whether on the basis of the
material collected there is a case to place the accused before a Magistrate for trial and if so, taking the
necessary steps for filing the charge-sheet. The investigation procedure ends with a submission of a police
report to the Magistrate under section 173 of the code this report is basically a conclusion that an
investigation officer draws on the basis of evidence collected. The second phase is, Inquiry dealt under
sections 177-189 of the code, which consists of a Magistrate, either on receiving a police report or upon a
complaint by any other person, being satisfied of the facts. Lastly, the third stage is trial. Trial is the
judicial adjudication of a person’s guilt or innocence. Under the Cr.P.C, criminal trials have been
categorized into three divisions having different procedures, called warrant, summons and summary trials.

Section 2(x) of the Cr.P.C. defines Serious offence, i.e.

Page 40 Your Laws Your Rights

“Warrant-case” means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. A warrant case relates to offences punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. Trial of warrant cases is dealt
under sections 238-250 of the code.

The Cr.P.C. provides two types of procedure for the trial of warrant cases: by a Magistrate, trial by a
Magistrate, viz., those instituted upon a police report and those instituted upon complaint respectively. In
respect of cases instituted on police report, it provides for the Magistrate to discharge the accused upon
consideration of the police report and documents sent with it. In respect of the cases instituted otherwise
than on police report, the Magistrate hears the prosecution and takes the evidence. If there is no case, the
accused is discharged. If the accused is not discharged, the Magistrate holds regular trial after framing the
charge, etc. In respect of offences punishable with death, life imprisonment or imprisonment for a term
exceeding seven years, the trial is conducted in a session’s court after being committed or forwarded to
the court by a Magistrate.

1. Framing of Charge or Giving of Notice

This is the beginning of a trial. At this stage, the Judge is required to weigh the evidence for the purpose
of finding out whether or not a prima facie case against the accused has been made out. In case the
material placed before the court discloses grave suspicion against the accused that has not been properly
explained, the court frames the charge and proceeds with the trial, on the contrary, upon consideration of
the record of the case and documents submitted and after hearing the accused person and the prosecution
in this behalf, the Judge considers that there is no sufficient ground for proceeding, the Judge discharges
the accused and records reasons for doing so.

The words “not sufficient ground for proceeding against the accused” mean that the Judge is required to
apply a judicial mind
Page 41 Laws Relating to Criminal Justice Administration

in order to determine whether a case for trial has been made out by the prosecution. It may be better
understood by the proposition that whereas a strong suspicion may not take the place of proof at the trial
stage, yet it may be sufficient for the satisfaction of the court in order to frame a charge against the
accused person.

The charge is read over and explained to the accused. If pleading guilty, the Judge shall record the plea
and may, with discretion convict him however if the accused pleads not guilty and claims trial, then trial
begins. Trial starts after the charge has been framed and the stage preceding it is called inquiry. After the
inquiry, the charge is prepared and after the formulation of the charge the trial of the accused starts. A
charge is nothing but formulation of the accusation made against a person who is to face trial for a
specified offence.

2. Recording of Prosecution Evidence

After the charge is framed, the prosecution is asked to examine its witnesses before the court. The
statement of witnesses is on oath. This is called examination-in-chief. The accused has a right to cross-
examine all the witnesses presented by the prosecution. Section 309 of the Cr.P.C. further provides that
the proceeding shall be held as expeditiously as possible and in particular, when the examination of
witnesses has once begun, the same shall be continued day-to-day until all the witnesses in attendance
have been examined.

3. Statement of Accused

The court has powers to examine the accused at any stage of inquiry or trial for the purpose of eliciting
any explanation against incriminating circumstances appearing before it. However, it is mandatory for the
court to question the accused after examining the evidence of the prosecution if it incriminates the
accused. This examination is without oath and before the accused enters a defence. The purpose of this
examination is to give the accused a
Page 42 Your Laws Your Rights

reasonable opportunity to explain incriminating facts and circumstances in the case.

4. Defence Evidence

If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and
defence, the Judge considers that there is no evidence that the accused has committed the offence, the
Judge is required to record the order of acquittal. However, when the accused is not acquitted for absence
of evidence, a defence must be entered and evidence adduced in its support. The accused may produce
witnesses who may be willing to depose in support of the defence. The accused person is also a
competent witness under the law. The accused may apply for the issue of process for compelling
attendance of any witness or the production of any document or thing. The witnesses produced by him are
cross-examined by the prosecution. The accused person is entitled to present evidence in case he so
desires after recording of his statement. The witnesses produced by him are cross-examined by the
prosecution. Most accused persons do not lead defence evidence. One of the major reasons for this is that
India follows the common law system where the burden of proof is on the prosecution, and the degree of
proof required in a criminal trial is beyond reasonable doubt.

5. Final arguments

This is the final stage of the trial. The provisions of the Cr.P.C. provide that when examination of the
witnesses for the defence, if any, is complete, the prosecutor shall sum up the prosecution case and the
accused is entitled to reply. The same is provided for under section 234 of the code.

6. Judgment

After conclusion of arguments by the prosecutor and defence, the Judge pronounces her/his judgment in
the trial. Here it is relevant to mention that the Cr.P.C. also contains detailed provisions for compounding
of offences. It lists various
Page 43 Laws Relating to Criminal Justice Administration

compoundable offences under section 320 Cr.P.C.

Under the Cr.P.C. Section 321 accused can also be withdrawn from prosecution at any stage of trial with
the permission of the court. If the accused is allowed to be withdrawn from prosecution prior to framing
of charge, this is a discharge, while in cases where such withdrawal is allowed after framing of charge, it
is acquittal.

The above aforesaid is the process how a trial takes place for dispensation of a criminal case. Although
this six stepped procedure looks plain and simple, it suffers from many inherent lacunas which become
the reasons for delay and hampers an expeditious trial. Not to forget the option of appeal is again there
where the state or the criminal has option to appeal to appellate court and as well as seek a permission to
file a special leave petition to the Supreme Court where in again all this process is repeated except for the
fact that the Supreme Court only deals with cases where there is a substantial question of law involved.

FIRST INFORMATION REPORT (FIR)

First Information Report (FIR) is a written document prepared by the police when they receive
information about the commission of a cognizable offence. It is a report of information that reaches the
police first in point of time and that is why it is called the First Information Report. It is generally a
complaint lodged with the police by the victim of a cognizable offence or by someone on her/his behalf.
Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a
telephonic message can be treated as an FIR.

Importance of FIR

An FIR is a very important document as it sets the process of criminal justice in motion. It is only after
the FIR is registered in the police station that the police takes up investigation of the case. So anyone who
knows about the commission of a cognizable offence can file an FIR. It is not necessary that only the
victim of
Page 44 Your Laws Your Rights

the crime should file an FIR. A police officer who comes to know about a cognizable offence can file an
FIR himself/herself. Any one can file an FIR. If you are the person against whom the offence has been
committed; you know his self about an offence which has been committed; you have seen the offence
being committed.

The Procedure of First Information Report

The procedure of filing an FIR is prescribed in Section 154 of the Criminal Procedure Code, 1973. When
information about the commission of a cognizable offence is given orally, the police must write it down.
It is right as a person giving information or making a complaint to demand that the information recorded
by the police is read over to you. Once the police has recorded the information, it must be signed by the
person giving the information. It is duty of the police officer to provide the copy of FIR to the informant
free of cost.

Cognizable Offence

A cognizable offence is one in which the police may arrest a person without warrant. They are authorised
to start investigation into a cognizable case on their own and do not require any orders from the court to
do so.

Non-Cognizable Offence

A non-cognizable offence is an offence in which a police officer has no authority to arrest without
warrant. The police cannot investigate such an offence without the court’s permission.

The police may not investigate a complaint even after the Registration of a FIR, when;

i. the case is not serious in nature.

ii. the police feel that there is not enough ground to investigate. However, the police must record the
reasons for not conducting an investigation and in the latter case must also inform you.

iii. He should sign the report only after verifying that the
Page 45 Laws Relating to Criminal Justice Administration

information recorded by the police is as per the details given by you.

a. People who cannot read or write must put their left thumb impression on the document after being
satisfied that it is a recorded correctly.

b. Complainant should ask for a copy of the FIR, if the police do not give it to you. It is his right to
get it free of cost.

c. Complainant should mention these basic information in the FIR:

a) His name and address;

b) Date, time and location of the incident he are reporting;

c) The true facts of the incident as they occurred; Names and descriptions of the persons involved in
the incident;

d) Refusal to register an F.I.R. is not only in cognizable offence but also punishable.

e) Witnesses, if any. Police & Inspector General of Police and bring his complaint to their notice.

The complainant can send her/his complaint in writing and by post to the Superintendent of Police
concerned. If the Superintendent of Police is satisfied with her/his complaint, she/he shall either
investigate the case herself/himself or order an investigation to be made.

(ii) The Complainant can file a private complaint before the court having jurisdiction. One should not do:

• Never file a false complaint or give wrong information to the police. He can be prosecuted under
law for giving wrong information or for misleading the police.

• Never exaggerate or distort facts. Never make vague or unclear statements.

DETENTION

Any form of imprisonment where a person’s freedom of liberty is removed can be classed as detention,
although the term is often associated with persons who are being held
Page 46 Your Laws Your Rights

without warrant or charge before as him/her have been raised. Being detained for the purposes of a drugs
search is tantamount to a temporary arrest, as it is not yet known whether charges can be brought against
an individual, pending the outcome of the search. The term ‘detained’ often refers to the immediacy when
someone has their liberty deprived, often before an arrest or pre-arrest procedure has yet been followed.
For example, a shoplifter being pursued and restrained, but not yet informed she/ he is under arrest or read
her/his rights would be classed as ‘detained’.

This means that the arrested person has right to hire a legal practitioner to defend himself/ herself. Every
person who has been arrested would be produced before the nearest Magistrate within 24 hours. The
custody of the detained person cannot be beyond the said period by the authority of Magistrate. The
Article 22 (1) and 22(2) as constitution of India make the above provisions. However, Article 22(3) COI
says that the above safeguards are not available to the following: If the person is at the time being an
enemy alien. If the person is arrested under certain law made for the purpose of “Preventive Detention”,
the first condition above is justified because when India is in war, the citizen of the enemy country may
be arrested. But the second clause was not easy to justify by the constituent assembly. This was one of the
few provisions which resulted in stormy and acrimonious discussions. Under Preventive Detention Laws
a person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that
he is potential to commit a crime in future. The custody arising out of the later is preventive detention and
in this, a person is deemed likely to commit a crime. Thus Preventive Detention is done before the crime
has been committed.

Every case of preventive detention must be authorized by law and not at the will of the executive. The
Preventive detention cannot extend beyond a period of 3 months. Every case of preventive detention must
be placed before an Advisory Board composed of Judges of the High Court (or persons qualified for
Page 47 Laws Relating to Criminal Justice Administration

Judges of the High Court). The case must be presented before the Advisory Board within 3 months. A
continued detention after 3 months must be having a “favours of the Advisory Board”. The person will be
given opportunity to afford earliest opportunity to make a representation against the preventive detention.
No person can be detained indefinitely. Article 22 (7) provides exception to the above provisions. This
Article mandates that: When parliament prescribes by law the circumstances under which a person may
be kept in detention may be kept in detention beyond 3 months without the opinion of the advisory board.
Parliament by law can also describe under the same law, the maximum period of detention.

The public have a number of rights if detained by the police at a police station. The rules and rights of
how the police can behave are set down in codes of practice and legal Action can be taken if these rights
are abused.

Reasons for Arrest

There may be a number of reasons why the police will detain a person at the police station. It could be
that they have arrested a person on suspicion of committing an offence or Actually caught a person
committing an offence. The police may also suspect that a person has previously committed an offence.
Other reasons may be that they have arrested a person to prevent the person from injuring themselves or
they suspect personal details are false or suspicious.

The Arrest Procedure

If the police decide that they are going to arrest a person they will need to inform the suspect that they are
under arrest. Before the arrest, the police are also required to give a verbal caution after the arrest, they
also need to inform the suspect why they are being arrested. This will usually happen at the police station.
Once arrested the suspect should be taken immediately to the police station. There may be times, such as
in the case of robberies,
Page 48 Your Laws Your Rights

when the police will actually retrace where the suspect has been before proceeding to the station.

Rights at Police Station

There are a number of rights that the police must make the suspect aware of once they have entered the
station. These rights will include the right to obtain legal advice from a solicitor and the right to inform
someone of the detained person’s whereabouts. There may be certain situations where the police can
delay informing certain parties of the suspect’s whereabouts. They may do this if they suspect that
informing someone else could lead to the tampering of evidence.

Detainment at the Police Station

The detained person should be made aware of this delay of informing other people, and the delay can only
be for a maximum of 24 hours. If someone does enquire about the detained person’s whereabouts the
police should give details of the detainment.

Taking Legal Advice

Every detained person has the right to take legal advice. This advice should be free from a Legal Aid
Advocate but this could depend on the detained person’s financial circumstances. The detained person has
the right to see their own solicitor if the offence is a serious one. Once you have asked for legal advice
you have the right not to answer any more questions from the police. In fact, the police should not ask any
more questions if you have had legal advice.

If you have been detained and any of these procedures have not been followed then there are legal
consequences that can be applied. Complaints can be made against the police if the public’s rights are
infringed or breached. The police can be sued, disciplined or prosecuted for the abuse of rights or
misconduct. It is very important that legal advice should be taken when arrested and detained by the
police.
Page 49 Laws Relating to Criminal Justice Administration

ARREST

Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus,
after arrest, a person’s liberty is in control of the arrester. Arrest is an important tool for bringing an
accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from
running away from the law. Cr P C contemplates two types of arrests: an arrest that is made for the
execution of a warrant issued by a Magistrate and an arrest that is made without any warrant but in
accordance with some legal provision that permits arrest.

WHAT TO DO WHEN POLICE ARRESTED YOU

When any person is arrested, he is taken into custody. This means that he is not free to leave the scene.
Without being arrested, that person can be detained, however, or held for questioning for a short time if a
police officer or other person believes that he may be involved in a crime. It means if the person is
arrested or detained, he does not have to answer any question expected to give his name and address and
show some identification if requested.

There is some rights as a citizen of India that when he’s arrested by the police what he can do at that time
whether he is an adult citizen or non-citizen, he has certain rights if he is arrested. Before the law
enforcement officer question anyone, he or she should tell him that:

• She/he has the right to remain silent.

• Anything she/he says may be used against her/him.

• She/he has a right to have a lawyer present during her/his questioning.

• If she/he cannot afford a lawyer, one Legal Aid Advocate will be appointed for you.

• These are his rights, guaranteed by the constitution. If she/he is not given these warnings, his
lawyer can ask that
Page 50 Your Laws Your Rights

statements he made to the police not be used against her/him in Court. But this does not necessarily mean
that his case will be dismissed. This does not apply if she/he volunteer information without being
questioned by the police.

Rights when any citizen arrested by police

1. The arrested person can be questioned, without a lawyer present, he may be required to give
certain physical evidence. For he is suspected of driving under the influence of alcohol he may be
requested to take a test to measure the amount of alcohol in in his blood. If he refuses to take, the refusal
will be used against him in Court. Once he is arrested she/he has a right to make a telephone call to his
family/friend/relative.

2. If she/he is arrested for a crime, particularly a serious one, she/he should contact a lawyer as soon
as possible. She/He has a batter sense of what she/he should and should not say to law enforcement
officers to avoid being misinterpreted or misunderstood The lawyer also can advise him or her/his family
or friends on the bail process.

Arresting Authority

Any law enforcement officers, such as police officers, can arrest. Whether they are on or off duty, in most
of cases. They can arrest even if they do not have an arrest warrant-if they have probable cause or valid
reason to believe he committed a felony, such as armed robbery. (A felony is a crime of a more serious
nature than a misdemeanor, usually punishable by imprisonment for more than a year.) However, an
officer may take him into custody but they must take him to Judge who is required by law to decide about
the legality as custody.

What should do when an arrest warrant used?

Usually a warrant is required before the person can be taken into custody in his home. But he can be
arrested at home without a warrant if fast action is needed to prevent him from escaping, destroying
evidence, endangering someone’s life or seriously
Page 51 Laws Relating to Criminal Justice Administration

damaging property .the warrant must be signed by a Magistrate or Judge who must have good reason to
believe that you, whom the warrant names, committed a crime. If his name is unknown “John Doe” can
be used on the warrant- along with his description.

• Once an arrest warrant is issued, any law enforcement officer in the state can arrest you, even if
the officer does not have a copy of the warrant. General, there is no time limit on using a warrant to make
an arrest.

• Before entering his home, a law enforcement officer must knock and identify him and tell that he
is going to be arrested. If he refuse to open the door or if there is another good reason, the officer can
breaking through a door or window if the police have an arrest warrant, he should be allowed to see it. If
they don’t have the warrant with them, he should be allowed to see it as soon as practical.

• The police may search the area within his reach. If he is arrested outdoors, they may not search
his home or car.

• Resisting an arrest or detention is a crime. If he resist arrest, he can be charged with a

misdemeanor or felony in addition to the crime for which he is being arrested. If he resist, an officer can
force to overcome his resistance or prevent his escape. The officer can even use deadly force if it appears
he will use force to cause great bodily injury.

• During the questioning and before a change is filed, if the police are convinced that he have not
committed a crime, they will give him a written release. His arrest then will be considered a detention and
not recorded as a arrest.

BAIL

“Bail” is the release of a person who is under arrest or who has already appeared in court, in exchange for
a promise to appear in court when scheduled.

When you’ve been arrested, the Police have a discretion to grant his bail (“Police bail”) in less serious
offences. When he first
Page 52 Your Laws Your Rights

appear in court (whether or not he have been arrested), his lawyer will apply for bail (“court bail”) on his
behalf for bailable offence.

Police Bail

If the person arrested and charged by the Police, the Police shall release him on bail until his first court
appearance. The bail comes to an end when he appear in court and you’ll then need to apply for court bail
instead (see below).

If the Police do not grant him bail, he will be held in Police custody until his taken to court, bail in
bailable offence is normally granted unless there is good reason to believe that he will not turn up to
court, or that he is likely to be a danger to the community (for example, through re-offending, or
tampering with evidence or witnesses). Police bail is not normally granted for more serious offences such
as serious assault or burglary. The Police have the power to require him to provide a “surety” (a person
who enters into a binding promise).

Court Bail

If the person has been released on Police bail, he will need to apply to the court for bail when he first
appear in court. When the Police don’t oppose the court granting bail, the decision to bail she/he is
normally made by the Judge/ Magistrate.

If he has been arrested and the Police have refused to grant him bail, the issue will be decided by a Judge.
Similarly, if he is appearing in court (whether or not he has been arrested) and the Police oppose bail, the
issue is dealt with by the Judge/ Magistrates.

If she/he don’t have her/his own lawyer to apply to the Judge on her/his behalf, she/he can avail the
services of Legal Aid Advocate (free of cost) from court about applying for bail. The services are free.
The legal Aid advocate’s services will then formally ask the Judge for bail. She/He is entitled to court bail
as of right in certain cases. In other cases whether or not you’re
Page 53 Laws Relating to Criminal Justice Administration

granted bail will depend on a number of factors.

Law Regarding Bail In India

The Criminal Procedure Code, 1973 or Cr.P.C. talks in details about the bail process and how it is
obtained. However, it does not define bail. To get a glimpse of the law, we need to go deeper to section
2(a) Cr.P.C. wherein it says that bailable offense means an offense which is shown as bailable in the First
Schedule or which is made bailable by any other law for the time being “enforce”, and non-bailable
offense means any other offense.

Thus, section 2(a) Cr.P.C. talks about schedule which refers to all the offenses under the Indian Penal
Code and puts them into bailable and on bailable categories which have been determined according to the
nature of the crime. For instance, all serious offenses like offenses punishable with imprisonment for
three years or more have seen considered as non bailable offenses, all other offenses have been kept as
bailable offenses.

Later part of the Cr.P.C. talks about the process of bail under sections 436 to 450 wherein it has the
provisions for the grant of bail and bonds in criminal in the Cr.P.C. However, still a lot of discretionary
power has been vested into the court to put a monetary cap on the bond.

Citizen Have a Right to Bail

The Supreme Court of India has delivered several cases wherein it has reminded that the basic rule is bail
and not jail. One such instance came in State of Rajasthan, Jaipur vs BalchandBaliay case which the apex
court decided on 20 September, 1977 and held that the basic rule is bail, not jail, except-where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other
troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who
seeks enlargement on bail from the court.
Page 54 Your Laws Your Rights

The bench of Justice Krishnaiyer, V.R. had observed that when considering the question of bail, the
gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner
to avoid the course of justice must weigh with the court. Taking into consideration the facts of the case
the apex court held that the circumstances and the social milieu do not militate against the petitioner being
granted bail.

THE PROCESS OF BAIL

When a person is an accused of some crime and arrested to record his statement and take information like
the name, residence address, birth place, charge filed against you, etc. The police officer may also check
back the criminal record if any in the police station and ask for finger prints to files a case against him.
The crimes that are bailable and simple, he will be allowed to apply for bail immediately.

However, if the crime is a little bit complex and non-bailable, he may wait for 24 hours to claim his right
to bail in the court wherein he are given a hearing. Depending upon the facts of the case, the
Judge/Magistrate decides whether he should get bail or not. Also, in situation he has given bail he has
asked to produce surety can some and with the court. Generally, in certain smaller crime cases, a standard
amount of surety bond asked to be deposited for awarding the bail.

Common Bail Conditions

There are some conditions put under section 437 of the Cr.P.C. wherein the accused can ask for bail even
if he committed non-bailable offense. In non-bailable cases, bail is not the right but the discretion of the
Judge/ Magistrate if regards the case as fit for the grant ofbail, it regards imposition of certain conditions
as necessary in the circumstances. Section S. 437 (3) Cr.P.C. elaborates the conditions set by the law to
get bail in non-bailable offenses.

The sub-section says that when a person accused or suspected

Page 55 Laws Relating to Criminal Justice Administration

of the commission of an offense punishable with imprisonment which may extend to seven years or more
or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860)
or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-
section (1). However, for that the Court has power to impose any condition which it considers necessary.

Some conditions that the court may place while granting bail are as follows:

• In order to ensure that such person shall attend in accordance with the conditions of the bond
executed under this Chapter, or

• In order to ensure that such person shall not commit an offence similar to the offence of which he
is accused or of the commission of which he is suspected, or

• Otherwise in the interests of Justice Person entitled to court bail If he’s charged with certain
offences he will get court bail as of right:

There are some offences that are not punishable by imprisonment

• Offences for which the maximum punishment is less than three years’ imprisonment (except if
the offence is an assault on a child or a breach of a protection order under the Domestic Violence Act
2005).

But this is subject to the rule that it is not bailable as of right if he have previously been convicted of an
offence punishable by imprisonment and he is now being charged with an offence punishable by
imprisonment.

Conditions when the 'person not bail entitled to a matter' as right:

If he is not bailable as of right, the court must release he on reasonable terms and conditions unless it’s
satisfied that there is “just cause” for bail. There are three main factors that the court must take into
account in deciding this:
Page 56 Your Laws Your Rights

• Whether there’s a risk that a accused won’t turn up for his next court appearance.

• Whether there’s a risk that accused will interfere with evidence or witnesses.

• Whether there’s a risk that accused will commit an offence while on bail.

The Judge can also consider the following factors:

• How serious the charge is.

• How strong the case is against him.

• How serious the likely punishment would be.

• His general character and past conduct (in particular, any criminal record as accused ).

• Whether accused have a history of committing offences while on bail or of breaching court
orders or bail conditions.

• When the next court appearance is likely to be.

• Whether it will be harder for him to prepare accused defence if he is not released on bail.

• Any other special factors that are relevant.

If the Judge refuses to grant his bail, accused can be held in Police custody/ Judicial custody and then
taken to the nearest prison.

Bail conditions

If the court grants the bail, accused will be released on the condition that he return on the date of his next
appearance, and subject also to other conditions that may be imposed, which commonly include:

• Having to live at a particular place

• Having no contact with the victim

• Having to report to the Police while on bail

The court has no power to require a sum of money as a condition of bail. But, if accused had granted bail
and he breach any condition of his bail, his bail can be cancelled and he can be arrested. It is likely that
his bail will then be revoked. Further, if he
Page 57 Laws Relating to Criminal Justice Administration

is on bail and he fails to turn up at court when he is supposed to, then he commit an offence that is
separate from and in addition to the original offence for which he has granted bail.