Criminal Law GK - 3 Right of accused, Supreme Court Guideline of D K Basu case, Period of limitation to file Case, Arrest How Made, Proclaimed Offender,  Maximum Period of Detention and Automatic Bail

SNo Legal Term/Question Answer
1 What is the right of an accused to be defended by a pleader Section 303 of Cr PC provides that any person against whom proceedings are instituted under the Code may of right be defended by a pleader.
2 What is the right of arrested person under Article 22(1) As per Article 22(1) of the Constitution of India no person who is arrested shall be detained in custody without being informed, as soon as may be, 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.
3 What is the summary of Supreme Court guideline for arrest as per D.K. basu V. State of West Bengal (1997) 6 SCC 642 Some of these guidelines include:

The police officials who carry out the arrest or interrogation should wear clear, accurate and visible identification and name tags with their designations.

A memo of arrest should be prepared at the time of arrest and should include the time and date of arrest. It should also be attested by at least one witness who could include a family member of the person arrested. The arrest memo should be counter-signed by the person arrested.

The person arrested, detained or being interrogated has a right to inform a relative, friend or well wisher.

When a friend or relative lives outside the district, the time, place of arrest and venue of custody must be notified by police within 8 to 12 hours after arrest.

4 What is the provision under Section 41A of CrPC to avoid unnecessary arrest Section 41A of CrPC has provision to give notice to the accused to avoid unnecessary arrest. The provisions are:

The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the 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, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

5 Who can file a Criminal Complaint Anyone can file a criminal complaint describing facts constitution an offence before a Magistrate entitled to take cognizance. But if there is a special statute the procedure must be followed and the competent Person should file the complaint.
6 Who can file complain in case of a Body Corporate Complaint must be filed through authorised person who can physically present in the court.
7 Who and against whom complaint be filed in case of Proprietorship business In case of sole proprietorship concern, complaint has to be filed by or against its proprietor.
8 Who can file complaint in case of a company Where a complaint is made in the name of a company or corporation or society, it is necessary that some person represents such company or corporation in the Court.
9 When previous sanction/ permission for prosecution is required, who can institute complaint When public servant is accused sanction as per Section 197 of CrPC is required to be taken. Such public servant must be the one removable from his office with the sanction of the Government as stipulated there in.
10 Where to file a Criminal Complaint Generally an offence can be enquired into and tried by a Court within the local limits of whose Jurisdiction it has been committed. Exceptions are there under Section 178 to 188 of CrPC to this General Rule. Generally fresh complaints are to be filed before the CMM or CJM or Sub-Divisional Judicial Magistrate of the concerned area unless the court is earmarked for particular type of cases

 

 

SNo Legal Term/Question Answer
11 Where fresh complaint under section 195 CrPC read with Section 340 CrPC be filed Fresh Complaint is to be filed before CMM or CJM or Sub-Divisional Judicial Magistrate of the Concerned area.
12 What is the time limit for filing Criminal Complaint Section 468 CrPC to 471 CrPC has provision regarding time limit for filing criminal Complaint.

Section 468 - Bar to taking cognizance after lapse of the period of limitation

Except as otherwise provided elsewhere in this Code, no Court, shall take cognizance of an offence of the category specified in Sub-Section (2), after the expiry of the period of limitation.

The period of limitation shall be-

six months, if the offence is punishable with fine only;
one year, if the offence is punishable with imprisonment for a term not exceeding one year;

three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.

For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

Section 469 - Commencement of the period of limitation

Section 470 - Exclusion of time in certain cases

Section 471 - Exclusion of date on which Court is closed

13 When the period of limitation commences According to Section 471 of CrPC the period of limitation shall commence:

on the date of the offence; or

where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier; or

where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier.

14 Whether period of limitation can be extended Yes, the Court may extent period of limitation
15 What steps needs to be taken by the Complainant before issue of Summon Before the process is issued by the Court against an accused, copy of complaint and list of witnesses are required to be annexed to the Complaint. When any document is filed in Court, its particulars are to be included in a list.
16 What is Process Fee Process fee is the fee for summoning of witness or issuing of notice to the opposite party.
17 When process fee is required to be paid Process fee in the form of stamps is to be pasted on the process fee form.
18 Who can conduct prosecution Public Prosecutor can conduct case in Criminal Courts. But in some case the complainant can conduct the case without the help of advocate. Reference Section 302 of CrPC:

302. Permission to conduct prosecution.

(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.

19 How Service of summon is completed At the time of service of process issued by the court, copy of the summon along with copy of complaint and documents, if any, forming part thereof are to be delivered.
20 Can service of summon be avoided No, You should not avoid service of summon. Else the court is empowered to take coercive action against you.

 

SNo Legal Term/Question Answer
21 If you are summoned by court as an accused, what to do If you are accused of commission of an offence you are to appear before the concerned court as mentioned in the process.
22 How to execute non-bailable warrants Process is sent to the Station House Officer of concerned Police Station. Court
23 Option when you are unable to appear before court on the date fixed In such situation you may submit an application in advance before the concerned court even before the date fixed for hearing, seeking your exemption from personal appearance.
24 What is the consequence of not appearing the accused before the court The court is empowered to proceed against the accused and the surety for realization of the amount of bail bond and the surety bond in accordance with law.
25 When an accused may be declared as Proclaimed Offender (PO) When the court is satisfied from the report of the Police that the accused is evading arrest and there is no likely hood of arrest of the accused. If the accused is declared as PO movable or immovable property of the accused is liable to attachment and sale.
26 What are the steps to be taken by Police at the time of arrest of accused No women can be arrested, save in exceptional circumstances, after sunset and before sunrise.

In special circumstances permission of Judicial Magistrate First class is required.

The person arrested cannot be subjected to more restraint than is necessary to prevent his escape.

The Ground of arrest should be informed to the accused.

Information to friends or relatives bout the accused is to be given.

Medical Examination of accused needs to be conducted

Information is to be given to he person being arrested 

27 Production before Magistrate An arrested person cannot be retained in custody for more than 24 hours. The accused should be produced before the magistrate.
28 Can a Juvenile be detained in Police Station A Juvenile under 18 years of age cannot be detained in a Police Station. Separate observation homes have been constituted by the Government for keeping Juvenile
29 How long an accused be kept in Police Custody The Magistrate may order detention of the accused in Police Custody for a term not exceeding 15 days
30 How Long an Accused be kept in Judicial Custody As per Section 167 of CrPC where the Magistrate is satisfied that there are adequate grounds to authorize detention of accused for a period beyond 15 days, the detention can be extended for a period not exceeding:

90 days in case of offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years

60 days in case of any other detention.

31 What is the maximum period an under trial can be detailed As per Section 436A CrPC where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties;

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties;

Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

32 What is the conditions for bail if investigation is not completed within the prescribed period of 90 days or 60 days Challan is presented in the Court as and when investigation is complete.

As per Section 167(2) of CrPC when investigation has not been completed and accused is in custody for a period even on 91st day of his detention in custody, in case of offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, such an accused has to be released on bail.

When investigation pertains to a case, other than a case where offence is punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years and investigation has not been completed within 60 days period, and accused is in custody for a period even on 61st day of his detention in custody such an accused has to be released on bail.  

 

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