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Criminal Laws In India, Defences And Bail



In India Criminal Laws are primarily divided into three major acts i.e. Indian Penal Code, 1973, Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872.

These laws take precedence over any state legislation, and the states cannot alter or amend them. Both the state and centre has established criminal liability for acts such as smuggling, illegal use of arms and ammunition, and corruption. All legislation remains subordinate to the constitution.

Briefly, Criminal Law in India, is a set of legal rules which are used to impose punishment as a result of failure to comply with the law. The rules may differ from country to country, and the acts of criminal codes are not consistent. The punishment, depending on the type of criminal offense and jurisdiction may result in execution, government supervision, sentence to jail and fines.

INDIAN PENAL CODE:

It is a comprehensive code, intended to cover all aspects of criminal law. It was drafted in 1860 and came into force in colonial India during the British Raj in 1862. It has since been amended several times and is now supplemented by other criminal provisions.

Based on British Criminal Law, the code defines basic crimes and punishments, applies to resident foreigners and citizens alike, and recognizes offenses committed abroad by Indian nationals.

The Indian Penal Code consists of 511 sections in 23 Chapters. However, the Code has no application in the State of Jammu and Kashmir. The penal code classifies crimes under various categories: crimes against the state, the armed forces, public order, the human body, and property; and crimes relating to elections, religion, marriage, and health, safety, decency, and morals.

Section 2 of IPC states that, every person guilty of an offence shall be liable for punishment. Different punishments have been laid down in the code for different offences.

CODE OF CRIMINAL PROCEDURE:

The Criminal Procedure Code was codified in the year 1973 and provides for the procedure for the enforcement of the Indian Penal Code, and, deals with cognizable, non-cognizable offences along with the criminal court systems and the procedure of appeal from lower courts to the higher courts right up to the Supreme Court. The code includes provisions to speed up the judicial process, increase efficiency, prevent abuses, and provide legal relief to the poor. Treatment of those arrested under special security legislation can depart from these norms. The implementation of these norms varies widely based on the class and social background of the accused. Firstly, police officers have to secure a warrant from a magistrate before instituting searches and seizing evidence. Individuals taken into custody have to be right to know the charges brought against them, have the right to seek counsel, and have to appear before a magistrate within twenty-four hours of arrest. During trial a defendant is protected against self-incrimination, and only confessions given before a magistrate are legally valid. Criminal cases take place in open trial, in very limited circumstances closed trials occur.There is a prescribed formula for calculation of royalties for repatriation of funds by a foreign company outside India.

PROCESS OF CRIMINAL TRIAL IN INDIA:

Procedure for administration of criminal justice is divided into three stages: namely investigation, inquiry and trial.

Investigation is a first step conducted by police starts after recording FIR in police station. Investigation usually ends in a police report to magistrate.

Inquiry starts when a magistrate either on police report or on any other complaint being satisfied of the facts.

Trial is the adjudication of a persons guilt. Under the CRPC, criminal trials have been categorized into three divisions having different procedures, i.e. warrant, summons and summary trials.

Warrant cases relates to offences punishable by death. In India Sec 300 of IPC applies in cases of Murder, where death penalty is awarded to a person guilty of murdering other person.

Offences punishable with death, life imprisonment and imprisonment for a term exceeding 7 years, the trial are conducted in sessions court.

Summons cases relates to offences punishable with imprisonment not exceeding 2 years. Cases includes assault, criminal force to any women etcThere are a number of methods that can be used in order to attempt to mitigate the effects of the Indian Agency laws from applying to a franchise relationship depending on the specific terms and conditions of the franchise agreement being negotiated.

DEFENCES:

In both civil as well as criminal proceedings, the accused is entitled to take a defense.

For an act to be a crime there should be mens rea i.e. guilty mind. The most common defenses, which are invoked are:-

Insanity - Sec 84 of IPC - If it is proved in the court of law that a person while committing an offence was not in his/ her senses by reason of insanity or by intoxication. If the person is suffering from some mental disorder or not capable of choosing what is right or wrong then insanity defence prevents them from being punished.

Self defence- This defence can be used when the person in order to protect himself from attacker attacks back and kills the attacker.

Entrapment- Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it.

Under any influences - Under the influence of drugs and alcohol the mental functioning gets impaired, then the person cannot be held accountable for the offence. Voluntary intoxication does not excuse the person from criminal conduct.

Minority- If the person is below the age of 18 then he will not be held liable for the offence and the will not be punished.

Duress- When a person performs the act as a result of violence, threat and other pressures. This defence is rarely raised in a criminal offence.

Sudden and grave provocation - Provocation can be used as a defence. Sudden and temporary loss of control due to others proactive conduct can save a person from criminal punishment. In the case of KM Nanavati vs State of Maharashtra the accused claimed that he was under grave provocation when he killed his wifes lover. Court awarded him 3 year imprisonment.

BAIL :

Sec 436 CrPc - When a person is in custody, he or she can be released from the imprisonment on payment of a security, usually a sum of money to the court, on a promise that the accused will appear for trail whenever called. The court has the power to grant bail with or without condition and has the power to refuse bail.

POLICE BAIL :

Bail may be granted by a police officer who is present at the station and is a sergeant or above the rank of sergeant, the police will determine whether to grant bail after arresting and charging the person.

If police bail is not granted the police will, as soon as possible will bring the person before a court so that court can make a decision whether to grant bail.

There are certain conditions that are imposed while granting bail.

A document in writing to appear in the court on certain date , at certain time and place as specified in the notice.

And an undertaking to notify the court on any changes in the residential address.

CASH BAIL:

The court has the authority to grant bail by accepting a certain sum of cash, to be deposited to the court, which may or may not be refundable. In case of medical emergencies and treatment bail can be granted, if court feels that the person can be benefited by this condition

PROVISION FOR WOMEN :

Under Section 437(1) of the CrPC, in case of offences not punishable with death, imprisonment for life or imprisonment for 7 years or more, or in cases where a person has not been previously convicted on two or more occasions of a non-bailable and cognizable offence, bail can be provided to the accused below the age of 16 if the accused is a woman, or on health grounds.

ANTICIPATORY BAIL:

Anticipatory bail is a direction to release a person on bail, issued even before the person is arrested.

Section 438 (1) of the Code lays down a condition, which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has reason to believe that he may be arrested for a non-bailable offence.

There are many conditions laid down before granting a anticipatory bail

Whenever called the Accused shall make himself available for interrogation.

The Accused shall not leave India, until court grants permission.

The Accused shall not, either directly or indirectly threat any person regarding the facts of the case.

The anticipatory bail may be cancelled on the directions of the higher court (high court or sessions court) on an application by the Complainant.

Legaleye Associates is committed to justice and the rule of law. We are renowned for the work we do. Our service to individuals and businesses is both national and international. The firm has an intelligent team of criminal lawyers in Mumbai and, if mandated, the firm is capable of briefing the best Criminal Lawyers in India.


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