Criminal Procedure Code: IInd Internal

Report on Guest Lectures by Advocates

Hrishikesh Ganu & Sampath Bulusu

Nancy
18010126257
2nd Year
Batch: 2018 – 2023
Division – C
Lecture By Adv. Hrishikesh Ganu:

Introduction

Pre-Trial Process: Section 154 To 173 Cr.P.C: A criminal case consists of a number of phases,
from the initial arrest to sentencing and possible appeal. The following is an overview of what to
expect during the pre-trial phase of a criminal case:

• Arrest
▪ In cases of cognizable offenses, the police can arrest without a warrant –
and in some cases, in non-cognizable offenses also, with the permission of
the magistrate.
▪ Physical restraint such as handcuffs is not necessary: all that is required is
exercise of police authority over a person.
▪ An arrest can occur either when a police officer has seen a person commit a
crime, or has probable cause to believe that a person has committed or is
about to commit a crime.

• Booking

▪ After being arrested, a person is usually “booked”, or entered into the police
system.
▪ This process can include gathering personal information, taking fingerprints,
and confiscating personal property.
▪ After booking, the person is typically placed into a holding cell of some sort.

• Bail

▪ Bail is the term used for money paid by an arrested individual in exchange
for their release from custody.
▪ The individual agrees to appear in court for all scheduled proceedings as a
condition of this release.
▪ Most criminal offense are non-bailable. The accused is to wait either until a
bail hearing is held, or for the arraignment. If this is the case, a judge will
decide whether to release the individual on bail, and can set the bail amount.

• Arraignment

▪ This is the first court proceeding in a criminal case, in which the judge
privately reads the criminal charges against the person, asks them if they
have an attorney, and asks them to enter their plea (usually guilty, not guilty,
or no contest).
▪ Future proceedings, such as the preliminary hearing and the trial, may be
scheduled
▪ The prosecution gives the defendant and his or her attorney any documents
related to the case, such as the police report.
▪ If the crime the person is charged with may result in a jail sentence, the
defendant has a right to an attorney, even if they cannot afford one. If they
cannot afford a lawyer, but wish to have one, the judge will appoint a lawyer
to represent the defendant at this point.
 • Plea Bargain

▪ Many criminal cases end at this stage.

▪ The defendant agrees to plead guilty, sometimes to a lesser charge than the
one they were originally arrested for, or sometimes for a lesser punishment
than they might receive if found guilty in a trial.
▪ If a defendant is charged with multiple offenses, he or she can sometimes
plead guilty to one of the offenses, and the prosecution will agree to drop
the other charges.
▪ Plea bargains can either be agreed upon, where the prosecution and
defence both agree on the punishment, or unagreed, where each side
suggests a punishment to the judge, and the judge chooses whichever he or
she feels is appropriate.
▪ In some states, an unagreed plea is said to be “defense capped”, meaning
that if the judge chooses any level of punishment that is more severe than
that suggested by the defendant, the defendant can withdraw their plea of
guilty, and go to trial.

• Preliminary Hearing

▪ After arraignment, if there is no plea bargain, a preliminary hearing is held

▪ At this point, the judge listens to the prosecution’s evidence, and decides
whether there is sufficient evidence to charge the defendant with the crime.
▪ The role of the preliminary hearing differs from state to state.1

Powers And Duties Of Police In Criminal Investigation: The Police Act, 1861 is an important
statute which highlights the functions and powers of police officers. The preamble to this Act states,
“it is expedient to reorganize the police and to make it a more efficient instrument for the prevention
and detection of crime”2.
The Code of Criminal Procedure, 1973 confers important powers on police officers, and they are as
follows:
• Under Section 154, the Police has the power to lodge FIRs; to record the information
related to any cognizable offence.
• Section 156 gives the Police the power to investigate any cognizable offence without the
order of a Magistrate. However, a report has to be sent to the Magistrate before the onset
of investigation.
• As per Section 173(2), upon completion of investigation a police report must be submitted
to the Magistrate.
• The police has the power to carry out investigation in non-cognizable offences if such an
order has been passed by the Magistrate.
• Under Section 160(1) of CrPC, the police can order the witnesses (except the ones
mentioned in the proviso to Section 160(1)) to present before himself or any other person
provided the order is in writing, the person is acquainted with the facts of case and person
is within the limits of police station.
• Section 151 of the Code empowers the police to arrest a person without the orders of
Magistrate if it appears that the accused person is planning to commit any more cognizable
offences.3

1 Pre-trial Stages of a Criminal Case, https://www.legalmatch.com/law-library/article/pre-trial-stages-of-a-criminal-

case.html, (last visited Mar. 9, 2020).
2 Who is police? What are powers & duties of police?, Ritika Sharma, http://lawtimesjournal.in/who-is-police-what-

are-powers-duties-of-police/, (last visited Mar. 9, 2020).

3 The Code of Criminal Procedure, 1973. Current Publications. 11 May 2015. p. LX. Retrieved 8 June 2015.
Analysis
The writer believes that the police must not be permitted to arrest without warrant save for in
extremely severe circumstances – even in cases of cognizable offenses – due to potential
discrimination, amongst other factors.
On July 16, 2009, well-known Harvard professor Henry Louis Gates was accused of breaking into
his own home in Cambridge, Massachusetts, and charged with disorderly conduct when he
protested4. Lolade Siyonbola, a black graduate student at Yale, woke from a nap in a dorm common
room in May to questions from police – a white classmate had called 911, saying that she wasn’t
sure if Siyonbola belonged in the dorm.
Yale sociologist Elijah Anderson notes that stereotypes of black people being criminal and black
behavior are deviant and much too frequent.
Even if one puts specific focus on the Indian context regarding discrimination by the police, a lot of
regrettable incidents can be talked of – especially in the age of the NRC/CAA bills.
Many Indians fear that the new law, which is seen as a huge political victory for Prime Minister
Narendra Modi and his Hindu nationalist base, is blatantly discriminatory toward Muslims and
threatens the very foundation of India as a secular and tolerant nation.
In Uttar Pradesh, the northern Indian state where Nagina is and the one with the most Muslim
residents, the rioting has been among the most intense, and the violent backlash from the police
has been the most deadly and troubling.
On the 20th of December, 2020, as a protest broke up, Indian police officers in Nagina chased a
group of Muslim teenagers into an empty house, grabbing them and throwing them into a
makeshift jail. And then, as the boys and community leaders said, the officers tortured them.
Four of the boys, who ranged in age from 13 to 17, with obvious signs of deep bruising or other
injuries, said in interviews with The New York Times that police officers used wooden canes to beat
them and threatened to kill them for taking part in demonstrations against a divisive citizenship law
that has fuelled rallies and rioting across India. According to accounts of the boys, along with family
members and other officials in their town who spoke to them immediately after they were released,
police officers over the course of 30 hours “terrorized,” them and others who had been
demonstrating.
Witnesses said that police officers opened fire on demonstrators with live ammunition, broke into
houses and stole money, and threatened to rape women. The BBC aired footage showing police
officers knocking down security cameras in a Muslim neighbourhood and shattering the windows of
parked cars.
As the Indian authorities struggle to contain the nationwide protests, more accounts are emerging
of abuse meted out by police officers, even on entirely innocent people. The Indian news media has
reported that in one case, officers smacked a 72-year-old Muslim man with a rifle butt, telling him,
“Muslims have only two places: Pakistan or the graveyard.”
From these largely recent incidences, it can be deduced why the power given to Police officials in
India should be put under stronger supervision – the aforementioned public officers evidently were
employing and projecting their personal pre-conceived notions while carrying out what they deemed
was the “necessary,” and “appropriate,” exercise of arresting and restraining authority – exactly
what the Constitution and the related Legislations themselves had intended to prevent. Harsh
Mander, a human rights activist who formerly worked in India’s civil service, rightly described the
situation with, “the police have become a lynch mob”.5

4 Henry Louis Gates arrest

controversy, https://en.wikipedia.org/w/index.php?title=Henry_Louis_Gates_arrest_controversy&oldid=939864226
(last visited Mar. 9, 2020).
5 As India Violence Gets Worse, Police Are Accused of Abusing Muslims, Kai Schultz and Sameer Yasir,

https://www.nytimes.com/2020/01/02/world/asia/india-protests-police-muslims.html, (last visited Mar. 9, 2020).

Conclusion
Overall, the lecture by Advocate Hrishikesh Ganu was a highly informative one; the speaker made
very clear and explained in great detail the Pre-Trial Stage of Criminal Cases as described under
Section 154 through to 173 of the Criminal Procedure Code, and the roles and authorities of the
Indian Police, along with the possibilities and risks attached to the same. One aspect of the
arresting authorities of the police spoken of that particularly piqued my curiosity was that which
stated the Police may arrest without warrant if the situation so reasonably demands. The openness
and subjectivity of what is reasonable and what is not leaves a lot of room for misuse and
discrimination at the expense of those accused. I believe that Law Reform should be considered
regarding this legislation for the reasons mentioned, to prevent the violation of human rights at the
hands of the very officials that ought to ensure that they are not.6

Lecture By Adv. Sampath Bulusu:

Introduction

Magisterial Powers To Take Cognizance And Allied Procedures: Taking of cognizance, while
not defined under the Criminal Procedure Code, can be said to mean, literally, ‘to become aware of’.
However, in the context of a Court or Magistrate, it means to take ‘judicial notice of an offence’.
Taking cognizance actually does not involve any formal action by the judge or magistrate, because
as soon as a magistrate recognises the suspected commission of an offence for the purpose of
taking subsequent steps under the CrPC, like summoning an accused on the basis of the
information available for enquiry or trial, cognizance can be said to have been taken. Cognizance
can be understood in simple terms as examining whether an offence has been committed or not,
and if at all it has been committed then whether proper sections of the IPC or any other special
enactment are attracted or not. The underlying policy of law or objective of cognizance is to ensure
a ‘judicial check’ on the police.
Section 190 of CrPC provides that any magistrate of the first-class and any magistrate of the
second-class, specifically empowered by the Chief Judicial Magistrate, can take cognizance of any
offence on the following grounds:
• Upon receiving a complaint
• Upon a police report
• Upon information received from any person other than a police officer or upon his own
knowledge that such offence has been committed
Cognizance can be said to have been taken only in cases where the maxim of Prima Facie applies,
meaning the only ‘examination’ at this stage will be whether the matter presented in the case is
sufficient enough to take further proceedings under the procedural law. In Nupur Talwar versus CBI,
the Apex court held that whenever the magistrate takes cognizance of an offence, there is no
pronouncement upon the guilt of the accused. It was held that cognizance is simply a frame of
mind where there is prima facie evidence against the accused, and it has nothing to do with the
pronouncement of guilt of the accused. The Apex court further held that the higher courts must
exercise utmost restraint and must not interfere with the concurrent findings of the Magistrate at
the stage of cognizance, for at this stage he is to examine the circumstances of that particular case
upon his own ‘judicial prudence’. While a revision can be filed against the order of cognizance
before the High Court or Court of Sessions, such provisional powers should be exercised sparingly.

6Legal Research & Law Reform, P.M Bakshi, Journal of the Indian Law Institute, Vol. 24, No. 2/3, SILVER
JUBILEE NUMBER (APRIL-SEPTEMBER 1982), pp. 391-415
In cases the likes of Fakhruddin Ahmad v. State of Uttranchal, Uma Shankar Singh v. State of Bihar,
and Anuran Rastogi v. State of UP, the Apex court held that even if the investigating authorities are
of the view that no case has been made out against the accused, the magistrate can apply his mind
independently to the materials contained within the police report and take cognizance in the
exercise of powers given to him under Section 190 (1)(b) of CrPC.
Bail: Bail is the provisional release of an accused person in a criminal matter, when the court is yet
to announce a judgment. The expression 'bail' means a security deposited to appear before the
court for release.
Because the primary objective of arrest is to ensure that the accused in a criminal case appears
before the court for the conveyance of justice, if the person’s presence can be guaranteed for the
court trial without imprisonment, it would be a violation of a person’s liberty to do so. Bail can thus
be granted as a conditional liberty to the accused.
There are 3 common types of Bail in India, which can be applied depending upon the stage of the
criminal matter:

• Regular Bail: Can be granted to a person who has already been arrested and kept in police
custody under Section 437 and 439 of the CrPC.
• Interim Bail: Granted to an accused before the hearing for the grant of Regular Bail or
Anticipatory Bail, this is a short-term bail.
• Anticipatory Bail: This is a bail that a person who discerns that he may be arrested by the
police for a non-bailable offence, can file an application for in advance under Section 438 of
the CrPC. A person cannot be arrested by the police if the anticipatory bail has been
granted by the court.
Section 436 of the CrPC lays down that a person accused of any bailable offence under the IPC
may hire a bail/anticipatory bail lawyer in India and be released. Such offences include unlawful
assembly (Section 144 of CrPC), bribery, misrepresentation, intentional sale of drugs or poisonous
foods or drinks, defamation, causing death by negligence (Section 304A), stalking, etc.
There are certain conditions, however, that need to be satisfied before a bail can be granted:

• There are sufficient reasons to believe that the accused has not committed the offence.
• If, as per the court, there is sufficient reason to conduct further enquiry on the matter.
• The person is not accused of any crime punishable with death, imprisonment for life, or
imprisonment of up to 10 years.
The power to release a person on bail in a non-bailable offence lies with the court, as stated under
Section 437 of the CrPC. Non-bailable offences under the IPC include Adulteration Of Drugs,
Murder (Section 302), Culpable Homicide Not Amounting To Murder (Section 304), Abetment Of
Suicide, Rape (Section 376), etc.
Bail may be granted in cases of non-bailable offences in the following scenarios:

• The accused is a woman or child.

• There is a lack of adequate evidence.
• There is a delay in registration of the FIR by the complainant.
• The accused person is gravely physically or mentally sick.
• There is some corroboration as to personal animosity between the accused and the person
lodging the FIR.7

7Meaning, Concept And Types Of Bail In India, Shivi, https://www.legistify.com/blogs/view_detail/meaning-

concept-and-types-of-bail-in-india/, (last visited Mar. 9, 2020).
Analysis
The writer believes that the concept of Bail, at its most fundamental, is a fallacy to the concept of
Justice being a right in equal measures to all, by inherently excluding the parts of the population
that cannot afford it but, perhaps, need it most.
Objectively analysed, the criminal jurisprudence adopted by India is a mere reflection of the Victorian
legacy left behind by the British – the passage of time has seen far and few amendments intended
only to satisfy pressure groups and vote banks. It is likely that little thought has been given to
whether these legislations, which have existed for almost seven decades now, are practical and
ethical in India at the present time. 70% of the population of this country lives in utter poverty.
As mentioned earlier, The CrPC, 1973, does not define bail. However, according to Section 2(a) of
the CrPC, a bailable offence is any offence, “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 offence means
any other offence”.

According to the 78th report of the Law Commission as on April 1, 1977, of a total prison
population of 1,84,169, as many as 1,01,083 (roughly 55%) were under-trial – one of the
reasons for this being, as already mentioned above, the large-scale poverty amongst the majority of
the population in our country. This is the precise reason why most of the under trials languish in jail
instead of being out on bail.
In the case of State of Rajasthan v Balchand, Justice Krishna Iyer voiced his opinion against the
unfair system of bail administration, saying that while the system of pecuniary bail has a tradition
behind it, a time for rethinking has come – in most cases, an undertaking should serve the purpose.
In Maneka Gandhi v Union of India, Justice P.N.Bhagwati also spoke about how discriminatory the
bail system becomes when looked at from an economic criteria, because a large majority would find
it difficult to procure even small amounts.

Conclusion
A perusal of the above cases highlights precisely the extent to which the bail system is prejudiced
against the majority of the Indian population, which is tremendously financially disadvantaged. There
is a strong need for a complete review and reform of the bail system, with special attention placed
upon the socio-economic condition of the country. The court should start taking into account factors
like socio-economic status, nature of offence, reputation and prior (or lack thereof) criminal records
and reliable witness reports before granting bail.
Those under trial for petty crimes simply due to fiscal weakness could further be put in reformative
homes and asked to do community service by way of “payment,” instead. Methods such as these
would not only be mindful toward the poor, but also benefit the Indian society at large by creating
significant changes under the guise of reparation.