F.I.R. [Section 154 CrPC]

What is an FIR?

FIR or First Information Report is the information given to police which sets criminal law in motion. Setting criminal law in motion means requiring the investigating agency to take steps towards investigating the crime.

FIR is defined [U/SEC:154 CrPC]

Every piece of information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

A copy of the FIR shall be given forth with, free of cost, to the informant.

Recording of FIR is mandatory

The provision of section 154 is mandatory and the officer concerned is duty-bound to register the case on the basis of any information disclosing a cognizable offence. The mandate of section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in-charge of a police station, such police officer has no other option except to register the case on the basis of such information. If a person has a grievance that the police station is not registering his FIR under section 154, then he can approach the Superintendent of Police under section 154(3) by an application in writing. Even if that does not yield any satisfactory result, it is open to the aggrieved person to file an application under section 156(3), Cr.P.Code. before the Magistrate concerned and the Magistrate can direct the FIR to be registered.

The copy of the FIR is to be sent to the concerned Magistrate immediately. Although the officer-in-charge of a police station is legally bound to register a first information report in terms of section 154, the same by itself does not take away the right of the competent officer to make a preliminary enquiry, in a given case, in order to find out as to whether the first information sought to be lodged has any substance or not.

What is a Cognizable offence?

Offence means any act or omission made punishable by any law for the time being in force. Cognizable offence means an offence in which a police officer may arrest without warrant. Generally an offence which is punishable with imprisonment for three years and above and or with fine are classified as cognizable offence.

What is Non-Cognizable offence?[Section 155 CrPC]

Non cognizable offence means an offence in which a police officer has no authority to arrest without a warrant. No police officer shall investigate a non-cognizable case without the order of a magistrate having power to try such case or commit the same to trial.

ARREST OF PERSON’S [Section 41 CrPC ]

Arrest means the curtailment of personal liberty, for legal purposes. In arrest, a person will not be allowed to move as per his whims and fancies. Legally, arrest means preventing a person from having free movement by applying the authority under law. Arrest is meant for disabling a person from distorting the evidences or threatening the witness from revealing the truth of his crime. “Arrest” consists of the actual seizure or touching of a person’s body with a view to his restraint; words may, however, amount to an arrest.

Any police officer may without an order from a Magistrate and without a warrant, arrest any person who commits, in the presence of a police officer, a cognizable offence. A police officer may arrest any person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence. The main purpose of arrest is to prevent him from continuing his unlawful activities.

 

Rights of Arrested Accused Persons

[1] No person who is arrested shall be detained in custody without being informed as soon as maybe, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by a legal practitioner of his choice.

[2] Every police officer while making an arrest shall bear an accurate, visible and clear identification of his name which will facilitate easy identification.

[3] Every police officer while making an arrest shall prepare a memorandum of arrest which shall be attested by at least one witness, who is a member of the family of the person arrested or a respectable member of the locality where the arrest is made and counter signed by the person arrested.

[4] When any person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout interrogation.

[5] The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

[6] Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

[7] When any person is arrested, he shall be examined by a medical officer in the service of Central or State Governments and in case the medical officer is not available by a registered medical practitioner. Where the arrested person is a female, the examination of the body shall be made only by or under the supervision of a female medical officer, and in case the female officer is not available, by a female registered medical practitioner. The medical officer or a registered medical practitioner so examining the arrested person shall prepare the record of such examination, mentioning therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted.

[8] While arresting a female person, all efforts should be made to keep a lady constable.

[9] Person arrested is not to be detained for more than twenty-four hours.

 

REMAND

Remand means authorised detention. It is a process by which the custody is authorised by the judicial order. An order of remand can be made only by the Court of law, for a specific period. Though the custody is given either to police or jail authorities, the court will be responsible for the custody. However in case of necessity the court may remand a person to police custody for a shorter period if the circumstances warrant. In short, remand means judicial lock-up. The judicial custody is far more safer compared to the police custody where accused gets protection from unscrupulous officers.

Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, shall produce the accused to the nearest Judicial Magistrate with a copy of remand application and the Magistrate may remand the accused to police custody or judicial custody. The Magistrate may authorise detention of accused in police custody or judicial custody for a term not exceeding fifteen days in the whole. After the initial period of fifteen days of custody the Magistrate can authorise detention only in judicial custody.

No Magistrate shall authorise the detention of accused person in custody for a total period exceeding ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

No Magistrate shall authorise that detention of accused person in custody for a total period exceeding sixty days,where the investigation relates to any other offence.
The order of remand to police custody must not be passed mechanically as a routine order on the request of the police for remand.

No Magistrate shall authorise detention of the accused in custody of the police unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage.

 

BAIL

Bail means the security taken from a person to appear on a fixed date before a Court. Bail has been defined in the law as security for the appearance of accused person in court when he is released pending trial or investigation.

Offences are classified into Bailable offences and Non bailable offences.

Bailable offences [Section 436 CrPC]: When any person is arrested or detained without warrant by a police officer or is brought before a Court, such person shall be released on bail if the offence is bailable and he is ready and willing to give bail.

Section 436 CrPC makes the provision of bail in bailable offence as a matter of right. This is mandatory.

Non bailable offences [Section 437 CrPC ]: When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court, he may be released on bail by the Court by imposing certain conditions. But, such person shall not be released on bail if there appears a reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.The court may release accused on bail if such person is under the age of sixteen years or is a woman or sick or infirm.

Anticipatory Bail [Section 438 CrPC ]: Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he maybe be released on bail. It is a pre-arrest legal process which directs that if the person in whose favour it is issued if thereafter arrested, he shall be released on bail.

Special powers of High Court or Court of Session regarding bail [Section 439 CrPC]: The High Court and the Court of Sessions have been granted special powers U/Sec 439 CrPC to grant bail even in offences punishable with life imprisonment or offences punishable with death penalty. The High Court and the Court of Sessions can grant bail even after the bail application is rejected by the judicial Magistrates Court even in other offences.

 

Other Resources

Publications

book
BAIL IS RULE

(BAIL GRANTED)
by Adv.Rajesh Srivastava
      Adv.Vinay B Kadam

About the Book
The book “BAIL IS RULE ” is a humble effort by the Authors to enlighten all those connected with the Practice, Percepts and Premise of the Law of Bails. It has meticulously and strenuously been the endeavour to bring fourth all those aspects regarding Bail in Criminal Cases, which have not been highlighted earlier. “BAIL IS RULE AND JAIL AN EXCEPTION” is a maxim which is more pronounced today than ever before. With the alarming number of under trial detenues languishing in jails for want of a beacon light, this book submits to being a pioneer in setting out to be a landmark. Honourable Judges on the bench as well as Advocates at the Bar will find this book as a valuable asset, which in turn will accord them a rare insight in to the wherewithall as regards grant of Bail

We, the authors, hope this book shall be of yeoman service to all those connected with the Practice of Law. It would have served our purpose if the material encapsulated herein, assists, in securing freedom for even a single under trial detenue, who would otherwise be deprived of his liberty.

This epic encompasses myriad judgments of the SUPREME COURT OF INDIA as well as the various HIGH COURTS. Readers are requested to see the full dictum in order to grasp the subtle nuances of the case.

1st  Edition, 2013 ; Price Rs 1160

 

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