PRE-TRIAL STAGES IN CRIMINAL LAW (INDIA)- PART II

BY HEMANT CHAUDHRY

LEGAL INTERN, H.K. LAW OFFICES

The stage of investigation plays an important role in the pre-trial stages of a criminal case, as it contains various stages like the examination of witnesses by police, arrest, search and seizure, etc. These are the essential and the crucial pre-trial stages in a criminal case which helps the court in delivering the justice to the parties.

Statements of witnesses are recorded by the Police under Section 161 of the Code of Criminal Procedure, 1973. A statement recorded by the police officer during the investigation is neither given on oath nor is tested by the cross-examination, as such statement is not considered as the substantive evidence.[1] The statement of witnesses made to the police officer during the investigation cannot be used for the purpose of corroboration, as the reason could be that the police cannot be trusted for recording the statements truly, but it can be used for the purposes of contradiction under Section 145 of the Indian Evidence Act, 1872. The primary object of Section 161 of the Code of Criminal Procedure, 1963 is to obtain the evidence and that may be produced at the trial later. As when a person is being examined by a police officer, he is required to answer truly all the questions put to him by such officer as envisaged under Section 161(2) of CrPC.[2] However, such person is not bound to answer all the questions. 

In the case of Nandini Satpathy vs. P.L. Dabi[3] the Hon’ble Supreme Court of India has considered the parameters of Section 161(2) of CrPC and Article 20(3) of the Constitution of India, and had observed that the accused person cannot be forced to answer the questions merely because the answers thereto are not implicative when viewed in isolation and confined to a particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in other accusation actual or imminent.  

As we know that, in a case, the documents and other relevant material are very much relevant for the investigation which should be available with the relevant authorities for the conducting the proceedings. If any person is in the possession of the relevant documents and other material and such person does not cooperate with those authorities and fails to produce the same, then the law will have various methods to produce such documents or material before the court. Initially the court summons to produce the documents under Section 91 of CrPC but if the same fails, then the court may issue orders to the police for search and seizure of such documents. 

Section 93 of CrPC talks about the situation when the court may issue a search warrant. A search warrant is a written authority given to the police officer by the court to search any place for general or special things or the documents or for the persons who are wrongfully detained. Search is considered as a coercive method which involves the invasion of the privacy of a person’s premises. 

The constitutional validity of the search warrants was also a very controversial thing which later became clear in one of the landmark ruling of M.P. Sharma vs. Satish Chandra.[4] It was observed in this case that, a search warrant issued under Section 93(1) (b) for the particular things or documents which are not known to the court to be in the possession of any person, or a warrant for a general search of the premises in possession of the accused, or a search warrant under Sections 94, 95, or 97, cannot be taken to be violative of Article 20(3) of the Constitution of India. 

As per Section 103 of CrPC a magistrate may direct the search in his presence that is competent to issue a search warrant and may direct a search to be made if he considers it advisable and it would not be necessary in such situation to issue a search warrant, which means that the search of a place may also be made without the warrant.       

At the time of making the search, when the warrant was issued by the court, the police officer making such search is empowered to seize such relevant things during search under Section 102 of Cr.P.C. This section has a wider scope and it is not restricted to the cases of cognizable offences but this is also for the non-cognizable offences as it is very clear from the phrases “any offence” used in the language of the Section.

The vital pre-trial step of a criminal case is to procure the presence of the accused(s) before the court. Section 204 and Section 87 of Cr.P.C. plays vital role in procuring the attendance of the accused(s). If the case made out is:

  • a summons case, then the Magistrate taking the cognizance of the offence, shall issue summons for the attendance of the accused, or
  • a warrant case, then the Magistrate taking the cognizance of the offence, may issue a warrant for causing the accused to be brought at a certain time before such Magistrate. 

Arrest is considered to be the most effective method of procuring the attendance of the accused(s) and it may also become a precautionary measure in respect to the person who is intending to commit a cognizable offence. Arrest can be made by the police officer with or without warrant. The conditions of the arrest without warrant are envisaged under Section 41 of the Cr.P.C. as this Code allows a person to be arrested without any warrant. The primary circumstances under which a police officer can affect the arrest of an accused without warrant have been spelt out there under Section 41(1) of Cr.P.C. In case of Arrest of an accused with warrant, then a warrant of arrest is issued by a Magistrate. A warrant of arrest is a written order which is issued and signed by the Magistrate and addressed to a police officer to arrest the body of the accused person whose name is mentioned in such warrant.  

It is very apt to note here that arrest is not only made by police officer, but the arrest may be made by a private person and by the Magistrate. Section 43 of Cr.P.C. talks about the arrest by a private person. When a serious kind of offence has been committed in the presence of a number of private persons and no police officers is there near the scene of the offence, so this Section empowers a private person to make the arrest without a warrant under certain situations as envisaged under Section 43 of the Cr.P.C. The power to arrest the accused person without warrant can be exercised only in respect to an offence which is both non-bailable and cognizable. The right of arrest under this provision must be exercised simultaneously with the commission of the offence.[5]     

Now if I talk about the arrest by a Magistrate, then Section 44 of Cr.P.C. deals with the same. If any offence has been committed in the presence of a Magistrate, be it be an Executive or a Judicial Magistrate, such Magistrate can himself or with the help of others, arrest the accused person and in the second situation, if no such offence is committed in the presence of the Magistrate, but such Magistrate is competent to issue a warrant of arrest of a person and such person is present before him, then such Magistrate can arrest such person. If such person who has been arrested by a Magistrate is detained beyond 24 hours and is not produced before another Magistrate for obtaining an order of remand to custody under Section 167(1) of Cr.P.C., then such detention would be illegal.[6]

Once the investigation by the police is completed, if it appears to the officer in charge of the Police Station that there is no sufficient or reasonable ground to justify the forwarding of accused to the Magistrate or when there is a deficiency in the evidence, then such officer shall release him on his executing a bond, with or without sureties as per Section 169 of Cr.P.C., as such officer may direct to appear, if and when so required. However, on the completion of investigation the police officer is required to send a report to the competent Magistrate under Section 173 and if the Magistrate disagrees with the police then the bond taken under Section 169 for appearance would be considered relevant and useful, and the police can carry on the investigation even after the release of such accused person. However, when there are sufficient evidences against the accused persons, then the officer in charge of police station shall forward the accused under the custody of the Magistrate who is empowered to take the cognizance of the offence upon a police report as per Section 170 of Cr.P.C.      

Upon the completion of investigation, a report which is commonly known as charge-sheet is submitted to the Magistrate by the officer in charge of police station as per Section 173 of Cr.P.C. Submission of such report is a part of the investigation.[7] Magistrate has also a vital role in this stage. As, when the Magistrate receives the report and he finds that the conclusion reached by the police officer as incorrect, then he may direct the police officer to make further investigation under Section 156(3) read with Section 173(8).[8] In the landmark case of Sakiri Vasu vs. State of U.P.[9] it was held by the Hon’ble Supreme Court of India that the Magistrate also has the power to monitor the investigation under Section 156(3) of Cr.P.C. to ensure a proper investigation.       

As discussed earlier, that upon the completion of the investigation, police submit its charge sheet under Section 173 of Cr.P.C. and thereafter, the trial begins. However, as per Sections 239 and 227 of Cr.P.C., accused can be discharged by the court before the framing of the charges against him, but these provisions can only be used in the Warrant cases. As after examining the report and other relevant documents sent, if a Magistrate, after hearing both the parties, thinks that charges are groundless against the accused then such accused shall be discharged under Section 239 of Cr.P.C. 

If I talk about the discharge of the accused in Session Trial under Section 227 of Cr.P.C., then, after hearing the both the parties i.e. prosecution and the accused, a Judge thinks that there is no sufficient ground for proceeding against the accused then such accused shall be discharged. But if the court is of the opinion, after discharging the accused, that there is a ground for presuming that the accused has committed the offence then the charge must be framed under Section 228 against such accused and once the charges are framed, the accused is put to the trial and then he can be acquitted or convicted, but he cannot be discharged.   

There might be confusion in a number of minds that discharge and acquittal are same. But no, they are not same. Discharge and Acquittal are very different from each other. Discharge is the act of releasing a person from the custody because of lack of reasonable grounds against such person to proceed in case. On the other hand, Acquittal is a conclusion of trial given by a Judge which means that the whole trial took place before the court and the accused was not held guilty of the alleged offence.              


[1] Sewaki vs. State of H.P. (1981) Cri LJ 919

[2] Gian Singh vs. State (Delhi Administration), 1981

[3] (1978) 2 SCC 424

[4] AIR 1954 SC 300

[5] Kolavennu Venkayya, re, AIR 1956 AP 156

[6] Swami Hariharanand Saraswati vs. Jailor I/C Distt. Jail, Banaras AIR 1954

[7] Chittaranjan Mirdha vs. Dulal-Dlosh (2009) 6 SCC 661

[8] Vinubhai Haribhai Malaviya & Ors. vs. State of Gujarat & Anr. 2019 SCC Online SC 1346

[9] 2008 (2) SCC 409

Published by meghachaturvedi

Associate Partner, H.K. Law Offices

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