CRIMINAL LAW
I. Introduction
Most businessmen, chartered accountants and other professionals rarely bother about criminal law and its proceedings. This is one law which no law-abiding citizen wants to know about. However, sometimes even they may, willingly or unwillingly, become a party to a criminal proceeding. Hence, it becomes necessary to at least have a fair understanding about the basics of criminal law. Further, even in cases of economic offences, criminal cases may be initiated against businessmen. In such an event it would be of great assistance if they have some knowledge of criminal law. Criminal Law in India
II. Criminal Courts
2.1 Under the Code there is a hierarchy of criminal courts. The Highest Criminal Court in the country is the Supreme Court. The Highest Criminal Court in each State is the High Court. In addition the Code constitutes the following classes of criminal courts (in descending order):
(a) Sessions Court
(b) Judicial Magistrates of the first class and in case of metropolitan areas : Metropolitan Magistrates
(c) Judicial Magistrates of the second class
(d) Executive Magistrates
2.2 The State Government has been empowered to notify any area with a population of more than one million to be a metropolitan area. The Code expressly notifies Mumbai, Chennai, Kolkatta and Ahmedabad as metros. Thus, in all these metros there exists a Court of the Metropolitan Magistrate.
2.3 Thus, the Sessions Court is the highest court under the High Court which is empowered to try criminal matters. There are certain restrictions on the nature of sentences / orders which can be passed by various Courts :
(a) A High Court may pass any sentence authorised by law.
(b) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by any such Judge shall be subject to confirmation by the High court.
(c) An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years.
(a) The court of a Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
(b) The court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or both.
(c) The court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.
(d) The court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class.
III. Process of complaint
3.1 The person filing the complaint is normally known as the complainant and the person against whom the complaint has been filed is known as the accused. The term complaint means an allegation made with a view to obtaining action against the accused under the provisions of the Code. A complaint is made to the Magistrate.
3.2 The Magistrate would then examine the complainant upon oath. If the Magistrate is of the opinion that there is sufficient ground for proceeding further in the case then the following provisions would apply:
(a) If the case is a ‘summons-case’ then he shall issue a summons for the attendance of the accused; or
(b) If the case is a ‘warrant-case’ then he shall issue a warrant or a summons for the attendance of the accused.
3.3 A warrant-case has been defined as one relating to an offence the punishment for which is one of the following:
(a) death penalty;
(b) life imprisonment; or
(c) imprisonment exceeding 2 years
A summons-case is a case which is not a warrant-case. The procedure for the trial of a warrant-case and a summons-case are different.
3.4 Summons-case trial
3.4.1 Once a summons has been issued to an accused the Magistrate may dispense with his personal attendance if he sees reason to do so. However, an application for such exemption must be made to the Magistrate.
3.4.2 When the accused appears before the Magistrate he shall be asked whether or not he pleads guilty to the offence. If he pleads guilty, the Magistrate would convict him as per his discretion.
3.4.3 In case the accused does not plead guilty, then the Magistrate shall record evidence and hear both the parties and admit all evidence in this respect. Ultimately, the Magistrate must pass:
(a) an order of acquittal if he finds the accused not guilty; or
(b) a sentence / an order of conviction if he finds the accused guilty.
3.4.4 The complainant may at any time withdraw the complaint with the previous approval of the Magistrate. A withdrawal would lead to an automatic acquittal.
3.5 Warrant-case Trial
3.5.1 A warrant-case trial can take place either on the basis of a police report or otherwise than on a police report.
3.5.2 In case of a warrant-case trial on the basis of a police report the procedure is as under:
(a) The accused must be furnished with a copy of the Police Report, the First Information Report, the statements recorded of the complainants and their witnesses.
(b) After considering the above documents, if the Magistrate feels that the charge against the accused is baseless then he shall discharge him. However, if he feels that there exist grounds for presuming that he has committed an offence, then he shall frame a written charge against the accused. This is known as a plea of the Accused/Charge. The charge must be read and explained to the accused. A charge is a very important step in the criminal proceedings and it may be defined as a precise formulation of a specific accusation against the accused of an offence alleged to have been committed by him.
(c) The accused is then asked whether or not he pleads guilty to the offence. If he pleads guilty, the Magistrate would convict him as per his discretion as permissible under the law.
(d) In case the accused does not plead guilty, then the Magistrate shall fix a date to examine the prosecution witnesses. He would also admit all evidence in this respect and the defence submissions, witnesses and cross-examinations.
3.5.3 Ultimately, the Magistrate must pass:
(a) an order of acquittal if he finds the accused not guilty; or
(b) a sentence / an order of conviction if he finds the accused guilty.
IV. Arrest Provisions
4.1 Arrest in case of Cognizable offences
4.1.1 In case of most offences whether under the Indian Penal Code or under other Acts one comes across the words “the offence shall be deemed to be cognizable”. The term ‘cognizable offence’ means an offence for which the police can arrest without a warrant. Thus, in case the act in question is a cognizable offence then the police officer need not wait for the issuance of a warrant against the accused. Conversely, a non-cognizable offence would mean one where the police can arrest only on the basis of a warrant. For instance, all offences under the Companies Act are expressly stated to be non-cognizable.
4.1.2 S.56 of the Code states that in case an arrest is made without a warrant the police shall without unnecessary delay produce the person arrested before a Magistrate. Further the police officer can keep him in custody only for a maximum period of 24 hours after which he must be produced before a Magistrate’s court. The Magistrate can then extend the remand.
4.2 Arrest in case of non-cognizable offences
4.2.1 In case of non-cognizable offences the police requires a Court warrant which must bear the seal of the Court.
4.2.2 The police shall without unnecessary delay produce the person arrested before the Court. Further such delay cannot exceed 24 hours.
V. Bail & Bonds
5.1 Bailable Offences
An accused in a ‘bailable offence’ who is willing to give bail must be released on bail at any stage of the proceedings. A ‘bailable offence’ is one which so shown in the First Schedule to the Code. The term bail means the accused is released from the custody. If the Court thinks fit than it can discharge the accused on the execution of a bond without sureties. There is no element of discretion involved in granting bail in the case of a bailable offence.
5.2 Non-bailable offence
A ‘non-bailable offence’ is one which is not a bailable offence. An accused in a non-bailable offence can be released on bail only if the following conditions are satisfied:
(a) he is not believed to be guilty of an offence punishable with death or a life term; and
(b) the offence is a cognizable offence and he has been previously convicted of an offence punishable with death or a term exceeding 7 years or on two or more occasions of a non-bailable and cognizable offence.
Thus, as compared to a bailable offence, granting of bail in the case of non-bailable offences is not merely procedural but a subjective decision.
5.3 Anticipatory Bail
Any person who has reason to believe that he may be arrested for a non-bailable offence may apply to the High Court or the Sessions Court for an anticipatory bail. The Court may grant such bail on such terms and conditions as it deems fit. Thus, on the basis of mere reason to believe, any accused may apply for anticipatory bail. It may be noted that the words “anticipatory bail” are not found in the Code but have their genesis in common parlance. Since anticipatory bail is granted in anticipation of arrest it becomes effective at the very moment of the arrest.
5.4 Bonds
Before any person is released on bail or bonds, he must execute a bond for such some on money as the Court thinks fit. Further, on being released on bail one or more sureties must execute a bond guaranteeing that he would attend at the time and place mentioned in the bond. If the bail specifies any condition for the grant of the bail, then he bail shall also specify the same. The Code however, does not authorise the Court to demand a cash surety as a bond.
VI. Search Warrants
(a) Where the Court has reason to believe that the person to whom a summons or order or requisition is addressed will not produce such documents, or things; or
(b) Where such document or thing is not known to the Court to be in the possession of any particular person; or
(c) If the Court considers that the purpose of any inquiry or other proceedings would be served by such a search.
6.2 In addition to the above search provisions, a District Magistrate may issue a search warrant for certain objectionable articles, such as, forged documents, counterfeit coins /stamps, etc.
VII. FIR
7.1 U/s. 154 of the Code, if any information relating to the commission of a ‘cognizable offence’ is given orally to a Police Officer in charge of a particular Police Station, then the same must be reduced to writing by him and read out to the person informing him about the same. This information should also be signed by the informant and a record of the same must be made in a Register maintained for this purpose at the Station. The informant is also entitled to a free copy of the information. This information is more popularly known as a “First Information Report” or FIR. The Register maintained at the Police Station is known as the Station Diary or the Station House Register. It may be noted that the informant is immediately entitled to a copy of the FIR.
7.2 The noting of the information or the FIR sets the whole machinery in motion and hence, it is an important document in a criminal proceeding. In case any Police Officer refuses to lodge an FIR, then the aggrieved may himself send the information to the Superintendent of Police. The Superintendent may then take such action as he deems appropriate.
VIII. Statements and Confessions
8.1 Any statement made by a person to a Police Officer in the course of an investigation shall not be signed nor shall it be used, in whole or in part, for any purpose at any inquiry or trial in respect of the offence. The statement may be recorded in a Police Diary or anywhere else. However, any statement of a witness, if duly proved, may be used by the accused and also by the Prosecution to contradict him in the manner provided by the Evidence Act.
8.2 A Metropolitan / Judicial Magistrate has powers to record any confession made to him in the course of any investigation. It is not relevant whether or not the Magistrate has any jurisdiction in the case. The Magistrate must forewarn the person confessing that he is not bound to confess and that if he does confess, then his statement may also be used as a evidence against him. The Magistrate cannot record the confession unless he is satisfied that the same has been made voluntarily.
IX. Summons and Warrants of Arrest
9.1 Whenever the attendance of any person is required in a Court, the Court would issue a Summons to such person. It is thus a process issued to compel attendance of any accused, witness, etc. The following factors are a must for a valid Summons:
(a) It must be issued by a Court;
(b) It must be in writing;
(c) It must be issued in the duplicate
(d) It must be signed by the Presiding Officer of the Court;
(e) It must bear the Common Seal of the Court
In addition, the Summons must clearly state the Date, time, place and the Name of the Court where the person has been summoned. As far as practicable, every Summons shall be personally served on the person named in the Summons by delivering to him a copy of the duplicate Summons and by obtaining a receipt for the same on the back of the other copy. In case the person summoned cannot be found, it may be left with some adult male member of his family (not being a servant) who is residing with him. In case even this mode of service is not possible, then a copy of the summons may be affixed on any conspicuous part of the residence of the person summoned. The summon must be served by a Police Officer or some other public servant, if the State Government rules so provide.
9.2 In certain serious cases, the Court may issue a Warrant of Arrest instead of a summons. A Court
(a) either before the issue of a summons or after its issue but before the time fixed for his appearance, the Court has reason to believe that he would not obey the summons.
(b) he has wilfully disobeyed the summons.
A Warrant of Arrest must have the following characteristics:
(a) It must be issued by a Court;
(b) It must be in writing;
(c) It must be signed by the Presiding Officer of the Court;
(d) It must bear the Common Seal of the Court
(e) It must bear the name of the accused
(f) It must clearly state the offence of the accused.
The Court can also allow the release of the person if he furnishes satisfactory surety/bonds to the Court.
X. Directors’ Responsibilities
10.1 The number of prosecution cases involving companies has increased recently. Criminal cases involving companies in matters such as cheque bouncing, company law violations, etc., have become quite common and hence, there is an increasing need for directors to be aware of their rights and responsibilities in such criminal cases.
10.2 Further when a company wants to lodge a criminal complaint it would be desirable if the directors have at least some basic understanding of the process involved and procedures. This would be of great significance in terms of speed on the Company’s part in taking effective action.
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