Module III: General Principles of Criminal Pleadings

Criminal Complaint
 Reporting the commission of a crime is the foremost step in setting the criminal law in
motion.

 The fundamental question that arises on the subject of reporting crimes is, who can report
about commission of a crime and to whom?

 As per the procedural laws in India, it is not necessary that only the person who is victimized
by the crime needs to report the same. Any person can pass on the information to the law
enforcement agency. With respect to the question to whom, the information can be given
both to the police as well as the jurisdictional Judicial Magistrate.

 Criminal Complaint is of 2 types.

 One is FIR (First Information Report) and
 the second is Private Complaint a Complaint
which is to be given to a magistrate either orally or in writing, whereas the first information
report is lodged at the police station nearby the place of commission of crime. According to
s. 2(d) Criminal Procedure Code, a complaint is the allegation of fact which constitutes a
complaint.

Difference between Complaint and Information:

Information- As per Section 154 CrPC, any information regarding commission of a cognizable
offence can be reported to the Police by a witness or victim or a person who has knowledge
about the act. The said information will be recorded as FIR.
Complaint- Whereas, As per Section 2(d) of CrPC, a complaint is an allegation made to the
Magistrate in writing or verbal form which mentioned about the offence committed by a person
whether known or unknown and does not include a police report.

Difference:
A. Though in common parlance, verbal information given to a police official is named as
complaint, as per CrPC, it will still be treated as information and not complaint.

B. FIR can be registered only for cognizable offence whereas a complaint can be filed for both
cognizable as well as non-cognizable offence.
C. FIR is lodged at a police station nearer to the crime place based on oral or verbal information
while a complaint is made to the Magistrate in writing or verbally.

Procedure for Registration of FIR:

 Information to the local Police station.
 As stated earlier, the information can be oral as well as verbal.
 The person who is affected or witnessed the commission of a crime, can inform the police by
making a phone call to the police station or by going in person.
 Even a call made to the emergency helpline 100 can be treated as Information for the
purpose of registering a FIR.
 The police officer who is receiving the said information has a duty to register the FIR, if the
information makes out a cognizable offence. The Code of Criminal Procedure classifies the
offences as cognizable and non-cognizable. The classification is based on the gravity of each
offence and the punishment provided therein. Generally, serious offences like murder, rape,
robbery are cognizable offences. Whereas offences like defamation, bigamy, Cheque
dishonour are non-cognizable offences.

BAIL
 The term ‘bail’ is originated from an old French verb ‘bailer’ which means ‘to give’ or ‘to
deliver’. Bail refers to the provisional release of the accused in a criminal case in which the
court is yet to announce the judgment. The term ‘bail’ means the security that is deposited in
order to secure the release of the accused.

Types of Bail in India:

Depending upon the sage of the criminal matter, there are commonly three types of bail in
India:
1) Regular bail- A regular bail is generally granted to a person who has been arrested or is in
police custody. A bail application can be filed for the regular bail under section 437 and 439
of CrPC.

2) Interim bail- This type of bail is granted for a short period of time and it is granted before the
hearing for the grant of regular bail or anticipatory bail.
 3) Anticipatory bail- Anticipatory bail is granted under section 438 of CrPC either by session
court or High Court. An application for the grant of anticipatory bail can be filed by the
person who discerns that he may be arrested by the police for a non- bailable offence.
There should be an element of apprehension, i.e. the person seeking bail feels that he will be
framed or arrested in a false case or someone having enmity with him will try to get him
arrested on the pretext on a fabricated charge. The applicant has to present before the Court
certain special facts or circumstances which makes him believe would result in his arrest. This
is however left to the satisfaction of the court, whether such facts would be considered good
enough for granting bail.
Anticipatory bail can be granted only a High Court or a Court of Sessions.

Conditions For Grant of Bail in Bailable Offences:

Section 436 of Code of Criminal Procedure, 1973, lays down that a person accused of bailable
offence under IPC can be granted bail.
Section 436 of the Code of Criminal Procedure provides for the bail of a person alleged of
committing a crime which is bailable in nature. The bail is the right of the person this section
further casts an obligatory duty on the police or the court to grant bail to the person alleged of
committing crime bailable in nature. This section further clears that whenever a person who is
alleged of committing a crime which is bailable in nature makes an application before the court
or the police office then the court or the police official has to allow the bail.

Conditions For Grant of Bail in Non-Bailable Offences:

Section 437 of Code of Criminal Procedure,1973 lays down that the accused does not have the
right to apply for bail in non-bailable offences. It is discretion of the court to grant bail in case
of non-bailable offences.
Conditions for bail in non- bailable offence are:
 If the accused is a woman or a child, bail can be granted in a non-bailable offence.
 If there is lack of evidence then bail in non-Bailable offences can be granted.
 If there is delay in lodging FIR by the complainant, bail may be granted.
 If the accused is gravely sick.

Cancellation of Bail:
Court has the power to cancel the bail even at a later stage. This power is laid upon the court
under section 437(5) and 439(2) of the CrPC. The court can cancel the bail granted by it and
give directions to the police officer to arrest the person and keep in police custody.
Necessary contents of the bail application:
These are the following necessary content of the bail application:
1. The name of the magistrate court under whom the bail application is filed.

2. The section of CrPC must be mentioned under which the application is moved.

3. The name of the parties must be mentioned.

4. The FIR number should be mentioned.

5. The name of the police station in which the accused is in custody should be mentioned.

6. The date on which the accused was taken into custody.

7. The ground on which the accused should be granted bail should be mentioned.

8. The surety of accused not absconding if bail is granted should be mentioned.

9. The accused will present before the court whenever required to be present.

10.The accused will not leave the country without the permission of the court should be
mentioned.

11.The counsel in prayer should ask the court for granting the bail on the abovementioned
ground.

12.The applicant should sign the bail application.

Sample of bail application:

BEFORE THE DISTRICT AND SESSIONS COURT AT BEGUSARAI
IN THE MATTER OF
STATE
VS
ABHISHEK SINGH
FIR NUMBER: 5510/2020
UNDER SECTION: 302/326/420 OF IPC
POLICE STATION: MATIHANI, BEGUSARAI
ACCUSED UNDER CUSTODY SINCE 20TH MARCH, 2020
APPLICATION UNDER SECTION 437 OF CODE OF CRIMINAL PROCEDURE CODE ON
BEHALF OF THE ACCUSED (ABHISHEK SINGH, S/O- RAMDHESHWAR SINGH, R/0-
MATIHANI, BEGUSARAI)
MOST RESPECTFULLY SUBMITTED AS UNDER:
1. That the present FIR has been registered under false and bogus facts. The facts stated in
the FIR are fabricated, concocted and manipulated.
2. That the police have falsely implicated the applicant, the applicant is the respectable
citizen of the society and he has no criminal antecedents.
3. The facts initiated against the applicant is civil dispute and does not constitute any
criminal case against him.
4. That the applicant is not required in any kind of investigation, nor any custodial
interrogation, no recovery can be made out at the instance of the applicant.
5. That the applicant is having good antecedents, he belongs from a good family, and there
are no criminal cases pending against them.
6. That the applicant is a permanent resident and there is no chance of absconding from the
course of justice.
7. That the applicant undertakes to present before the court or police whenever required to.
8. That the applicant undertakes that he will not, directly or indirectly, make any
inducement, threat or any promise to any person acquainted with the facts of the case so as to
dissuade him to disclose any such facts to the court or the police officer.
9. That the applicant further undertakes not to tamper with the evidence or witness of the
case in any manner.
10. That the applicant shall not leave India without the previous permission of the court.
11. That the applicant is ready and willing to accept any other condition the court or police
officer willing to impose in relation with the case.
PRAYER
It is therefore prayed that the court may order for the release of the applicant in the order of the
justice. And the other order which the court may deem fit and proper in the facts and
circumstances of the case may be also passed in the favour of the applicant.
APPLICANT
THROUGH
COUNSEL

CRIMINAL APPEAL
 The word “appeal” has not been defined in The Code of Criminal Procedure, 1973,
(hereinafter CrPC), however, it can be described as the judicial examination of a decision,
given by a lower court, by a higher court.

Appeals from convictions (S. 374):

1. Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.

2. Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or
on a trial held by any other Court in which a sentence of imprisonment for more than seven
years has been passed against him or against any other person convicted at the same trial;
may appeal to the High Court.

3. Save as otherwise provided in Sub-Section (2), any person;

i) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or
Magistrate of the first class or of the second class, or
ii) sentenced under section 325, or
iii) in respect of whom an order has been made or a sentence has been passed under
section 360 by any Magistrate,
may appeal to the Court of Session.

4. When an appeal has been filed against a sentence passed under section 376, section 376A,
section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB
or section 376E of the Indian Penal Code, the appeal shall be disposed of within a period of
six months from the date of filing of such appeal.

What is a Writ?
A writ is a written official order issued by the court. The formal order may be in form of
warrant, direction, command, order etc. Writs can only be issued by the High Court Under
Article 226 of Indian Constitution,1950 and by The Supreme Court under Article 32 of Indian
Constitution,1950. Indian constitution has adopted the concept of prerogative writs from
English common law. Writs was first used to describe a written command of the King.
Types of Writ:
There are 5 types of writes specified under Indian constitution law.
1) Habeas corpus
 Writ of habeas corpus can be issued for preserving the liberty of a person, who is being
illegally detained. It can be invoked against the state as well as against the person within
whose custody the aggrieved person is. It came into the picture for preserving the rights and
liabilities of the individual.

 Writ of habeas corpus is a powerful weapon available before a common man who has been
wrongfully detained by the person or state. This writ provides a fast and powerful remedy
against illegal detention.

 This writ is an order calling the person who was arrested or jailed the alleged person for
producing the aggrieved before the court, for knowing the grounds of his detention and if not
found any legal ground for his detention then let the aggrieved be free from arrest and let
him enjoy his freedom.

2) Mandamus
History of this writ say that it is a command, issued in the name of the crown by the court of
king’s bench to the subordinate court, inferior tribunal, board or to any person requiring it for
him to perform a public duty imposed by law. Therefore, a writ of mandamus is a command
given by any high court or supreme court to the lower court or any tribunal or board or to any
other public authority to perform their public duty imposed upon them by law. It’s primary
objective is to supply defects of justice and prevent rights of the citizen.
Case- State of Mysore v K.N.Chandrasekhara
In the given case high court has issued a writ of mandamus directing the public service
commission to include the names of the six petitioners in the list prepared by the Commission
under Rule 9(2) of the Rules for appointment to the cadre of Munsiffs. In the view of the High
Court the appointment of ten candidates whose names were included in the list under R. 9(2) as
fit for promotion could not be disturbed, yet the six applicants should be added to the list and
appointments should be made out of that list.

3) Prohibition
It is an extraordinary writ of preventive nature. It prevents courts, tribunal, quasi judicial bodies
and other officers from exercising their power beyond their jurisdiction or exercising those
powers which are not vested on them.
4) Certiorari
 Writ of certiorari has been defined as one of the most effective and efficient remedies taken
from common law. Certiorari means “to certify”. It is an order issued by the High Court to
an inferior court or any authority exercising judicial or quasi-judicial functions.

 The main object of this writ is to keep the inferior courts, judicial and quasi-judicial
authorities within their limits of jurisdiction and if the act in access of their jurisdiction their
decision will be quashed by the High Court and Supreme Court by issuing a writ of
certiorari.

Difference between Certiorari and Prohibition:

The Supreme Court has given the difference between the two writs in the case of Hari Vishnu
Kamath vs. Ahmad Ishaque.

5) Quo Warranto
 Writ of quo warranto prevents the person from wrongfully or forcefully holding any office or
from continuing the office. By writ of quo warranto court has the authority to ask the holder
of the office that by what authority he is holding the office.
 Earlier in England this writ was issued by the king or on his behalf against any person who
claim or take any office, or privileges of The Crown. And later this writ was misused by the
authorities that led to substitution in proceedings by way of information.

 Writ can be issued only if the office in question is a public office and any person claiming a
writ must establish this fact first.