ALL INDIA LEGAL FORUM

DAY- 13 August, 2020

Day- 04

Criminal Procedure Law

CONCEPT OF CRIMINAL PROCEDURAL LAW

The law of criminal procedure is intended to provide a mechanism for the enforcement of criminal
law. Without proper procedural law, the substantive criminal law which define offences and
provide punishments for them, would be almost worthless. The source of Crpc lies in last line of
Article 21 of Indian Constitution which states “except the procedure established by Law” that
is why the fundamental rights of the people can be curtailed when they commit any wrong.

Thus, the law of criminal procedure is meant to be complementary to criminal law and has been
designed to ensure the process of administration. In view of this objective, the law of criminal
creates a necessary machinery for detection of crime, arrest of suspected criminals, collection of
evidence, determination of guilt or innocence of suspected person and imposition of suitable
punishment to the guilty person
In the case of Iqbal v. State of Maharashtra, (1975) 3 SCC 140)
The Supreme Court has said “It is the procedure that spells much of the difference between the
rule of law and the rule of whim and caprice”.

Purpose of Criminal Procedure

• The essential object of Criminal law is to protect society against criminals and lawbreakers.
For this purpose, the law holds out threats of punishments to prospective lawbreakers as
well as attempts to make the actual offenders suffer the prescribed punishment for their
crime.
 • The core object is to ensure for the accused a full and fair trial in accordance with the
principles of natural justice. Therefore, the trial procedure becomes the pivotal part of the
scheme of criminal procedure.

Importance of Criminal Procedure

1) It is more constantly used and affects a greater number of the person than any other law.
2) The nature of its subject matter is such that human values are involved in it to a greater
degree than in other laws.
3) As a law of criminal Procedure is complementary to substantive criminal law, its failure
would seriously affect the substantive criminal law which in turn would affect considerably
affect the protection that it gives to society.

Functionaries under the Code

The main functionaries exercising powers and discharging duties under the Code:
1) Police
2) Prosecutors
3) Defense Counsel
4) Magistrate and Judges of Higher Court
5) Prison Authorities and correctional services personal

Offences covered under Civil Procedure Code.

All such offences are covered by Criminal Procedure Code (CrPC), which are
mentioned in Indian Penal Code. For example, Murder, Theft, Kidnapping, Rape, Forgery, etc.
The legal meaning and whether an act will constitute a criminal offence or not is provided in the
I.P.C. The Procedure of initiating proceeding/Prosecution for a criminal offence is provided in
Criminal Procedure Code (CrPC). CrPC provides the manner and place, where investigation
inquiry and trial of an offence shall take place.
CLASSIFICATION OF OFFENCES

Depending on the nature and gravity of an offence's if they can be classified under any of the
following heads:

A. Bailable and non-bailable offence

B. Cognizable and non-cognizable offence.
C. Compoundable and non- compoundable offence

A. BAILABLE AND NON- BAILABLE OFFENCE

➢ Bailable offence
Section 2(a) of the Code of Criminal Procedure, 1973, Bailable offence means an offence
which is shown as bailable in the First Schedule, or which is made bailable by any other
law for the time being in force; and “non-bailable offence” means any other offence. The
first schedule of the CrPC is divided into two parts wherein the first part deals with the
offences given under IPC and the second part deals with the offences under other laws. As
per the last item of the First Schedule, an offence in order to be bailable would have to be
an offence which is punishable with imprisonment for less than three years or with fine
only. Some of the common bailable offences are: Simple Hurt (Section 337; IPC), Bribery
(Section 171E; IPC), Public Nuisance (Section 290; IPC), Death by Rash or Negligent Act
(Section 304A; IPC).

- Right to be released on bail

As per Section 50 of CrPC Whenever a person is arrested without warrant, it is the duty of
the police officer to communicate the full detail of the offence for which the person is
arrested. Also, if the offence for which the person is arrested is a bailable one, it is the duty
of the police to inform that he is entitled to be released on bail after giving surety.

As per Section 436 of CrPC, whenever a person accused of a bailable offence is arrested
without warrant and is prepared to give bail, such person shall be released on bail. The
 discretion to decide the bail amount is with the Court or with the officer, as the case may
be.

➢ Non-Bailable Offence
The term ‘non-bailable offence’ does not means that an accused person cannot get bail
under any circumstances. Section 437 of the Code of Criminal Procedure provides the
provisions for bail in non-bailable offences except on reasonable grounds that the offence
committed by accused is punishable with death or imprisonment for life. Example Murder
(S.302) IPC, Dowry Death (S.304-B) IPC etc.

- Right to be released on Bail

A person accused of a non-bailable offence doesn’t have right to be released on bail but
the bail can be granted at the discretion of the court, subject to certain conditions given in
Section 437 of CrPC. If a person is arrested on accusation of commission of any non-
bailable offence, then the person will not be released on bail if there appears a reasonable
ground that the person is guilty of an offence punishable with death or imprisonment of
life. A person accused with an offence punishable with death or imprisonment of life can
be released on bail if the person is below the age of sixteen years. A woman Sick Infirm
Further, if at any stage of investigation it appears to the Court that there are reasonable
grounds for believing that the person has not committed a non-bailable offence, the person
may be released on bail at the discretion of Court on execution of a bond.

Difference between Bailable and Non-Bailable Offences

Basis of Bailable Offence Non-Bailable Offence

Difference

Provision It is defined u/s 2(a) of CrPC, as an offence It is also defined u/s 2(a) CrPC, as an
under CrPC which is shown as bailable in the 1st any other offence than bailable.
 schedule, or which is made bailable by any
other law for the time being in force.

Intensity of Bailable offences are considered less serious Whereas, Non-Bailable offence are
Crime in nature. considered more serious in nature.

Quantum of As a general rule bailable offence are those The quantum of punishment is high
Punishment in which punishment is for or less than 3 in non-bailable offence which may
years. But there are some exceptions to this extend to life imprisonment.
rule.
Power to In Bailable offence, bail can be claimed as a Whereas, bail can’t claim as a right
Grand Bail right under section 436 of CrPC. and court or the police officer has a
discretion to grant bail after
considering facts and circumstance as
par each case. Provision for Non-
Bailable offence is given u/s 437 of
CrPC.
Example Sec. 407, 160, 171E of IPC. Sec. 304B, 302, 376 etc. of IPC

B. COGNIZABLE AND NON COGNIZABLE OFFENCE

➢ Cognizable Offence
Cognizable offences are those where a police officer can arrest without warrant. And such
cases, after arrest has been made, the accused will be produced before a magistrate, and he
may require the police officer to investigate the matter. After investigation, if the case is
made out, i.e. charge sheet filed goes against accused, the magistrate can order for arrest.
During the pendency of trial, bail application can be moved before the concerned
magistrate. Cognizable offences are both bailable, and non-bailable. Eg. Offences of
waging or attempting to wage war, or abetting the waging of war against the government
of India, rioting with a deadly weapon etc.
 ➢ Non- cognizable offence
Non cognizable offences are those, where a police officer cannot arrest without a warrant.
In such offences for arrest, all the steps have to be followed like
- Filing of complaint/F.I.R.
- Investigation
- Charge sheet,
- Charge sheet to be filed in court
- Trial
- Final order of arrest if case has been made out.

E.g. Fabricating false evidence in judicial proceeding, bribery during elections etc.

Difference between Cognizable and non-cognizable offence

• The offence in which the police suo motu takes cognizance of crime and also does not need
approval of court, known as a cognizable offence. While, in non-cognizable, police has no
authority to arrest a person for crime on its own, without prior approval of court.
• In cognizable, the police can arrest a person without any warrant. While, in case of non-
cognizable offence, a warrant must needed for arrest of person.
• In cognizable, court’s order is not required to start an investigation. Conversely, in the non-
cognizable offence, first of all, court’s order should be obtained for undertaking an
investigation.
• Cognizable are heinous crimes, whereas non-cognizable offences are not so serious.
• Cognizable encompasses murder, rape, theft, kidnapping, counterfeiting, etc. On the
contrary, non-cognizable offences include offences like forgery, cheating, assault,
defamation and so forth.
• For a cognizable, one can file FIR or make a complaint to the magistrate. Unlike, in case
of non-cognizable offence one can only make a complaint to the magistrate.

C. COMPOUNDABLE AND NON- COMPOUNDABLE OFFENCES

 ➢ Compoundable Offences
Compoundable offences are those offences where, the complainant (one who has filed the
case, i.e. the victim), enter into a compromise, and agrees to have the charges dropped
against the accused. However such a compromise, should be a "Bonafede," and not for any
consideration to which the complainant is not entitled to. Application for compounding the
offence shall be made before the same court before which the trial is proceeding. Once an
offence has been compounded it shall have the same effect, as if, the accused has been
acquitted of the charges.

E.g. criminal or house trespass, criminal breach of contract of service, printing or engraving
matters, knowing it to be defamatory etc.

➢ Non- Compoundable Offences

There are some offences, which cannot be compounded. They can only be quashed. The
reason for this is, because the nature of offence is so grave and criminal, that the Accused
cannot be allowed to go scot-free. Here, in these types of cases generally, it is the "state",
i.e. police, who has filed the case, and hence the question of complainant entering into
compromise does not arise. All those offences, which are not mentioned in the list under
section (320) of CrPC, are non-compoundable offences.

Difference between Compoundable and Non-compoundable offence

1. Withdrawal of Charges: In compoundable offence, charges against the accused can withdraw.
While in non-compoundable offence, the charges against the accused cannot withdraw.

2. Nature of Crime: In compoundable offence, the nature of the crime not so serious. While, in
non-compoundable offence, the nature of the crime is serious.

3. Compoundable: In compoundable, offence compoundable by with permission or without

permission of court. While in non-compoundable offence, offence cannot compound. Its only
quashed.
4. Affected parties: In compoundable, impacts only private person. While in non-compoundable
offence, affects both, private person as well as the society at large.

5. Filing of case: In compoundable offence, case generally filed by private person. While in non-
compoundable offence, case generally filed by the state.

By Vaishnavi Rai and Akansha Yadav, Content Board, All India Legal Forum