Types of Crimes
From the point of view of an accused person

Broadly crimes in India are classified as:

  • Cognizable or non-cognizable crimes -

    • Cognizable crimes are generally serious crimes in which the police need to act immediately.
    • Non-cognizable crimes are usually in the nature of private wrongs (crimes related to marriage or an individual's reputation) or other crimes in which police interference is not desirable.
  • Bailable or non-bailable crimes -

    • Non-bailable crimes are generally serious crimes which attract a jail time of more than 3 years.
    • Bailable crimes are usually crimes which are less serious in nature and attract lesser jail time.

These are broad descriptions only and there are many variations and exceptions. You should try and find out the crime you have been accused of from the police or your lawyer. The law on criminal procedure broadly classifies each crime under these categories .

 

Cognizable Crimes

Non-cognizable Crimes

Bailable crimes

Non-bailable crimes

 

If any of the crimes you have been accused of is a cognizable crime, then your case will be considered as a cognizable case on the whole.

The general law describing crimes in India is the Indian Penal Code, 1860. However, there are other laws for specific types of crimes (cheque-bouncing, drug use, corruption etc.) If such other law does not describe the nature of the crimes it covers, apply the following thumb rule to understand the nature of the crime:

If the death penalty can be awarded for the crime or if the jail time is more than 3 years

Cognizable

Non-bailable

If the maximum jail time for the crime is less than 3 years

Non-cognizable

Bailable

 

Please note - the specific law punishing this crime can make exceptions to this rule. For example, a crime which is less than 3 years can also be made cognizable.

Broadly crimes in India are classified as:

  • Cognizable or non-cognizable crimes -

    • Cognizable crimes are generally serious crimes in which the police need to act immediately.
    • Non-cognizable crimes are usually in the nature of private wrongs (crimes related to marriage or an individual's reputation) or other crimes in which police interference is not desirable.
  • Bailable or non-bailable crimes -

    • Non-bailable crimes are generally serious crimes which attract a jail time of more than 3 years.
    • Bailable crimes are usually crimes which are less serious in nature and attract lesser jail time.

These are broad descriptions only and there are many variations and exceptions. You should try and find out the crime you have been accused of from the police or your lawyer. The law on criminal procedure broadly classifies each crime under these categories .

 

Cognizable Crimes

Non-cognizable Crimes

Bailable crimes

Non-bailable crimes

 

If any of the crimes you have been accused of is a cognizable crime, then your case will be considered as a cognizable case on the whole.

The general law describing crimes in India is the Indian Penal Code, 1860. However, there are other laws for specific types of crimes (cheque-bouncing, drug use, corruption etc.) If such other law does not describe the nature of the crimes it covers, apply the following thumb rule to understand the nature of the crime:

If the death penalty can be awarded for the crime or if the jail time is more than 3 years

Cognizable

Non-bailable

If the maximum jail time for the crime is less than 3 years

Non-cognizable

Bailable

 

Please note - the specific law punishing this crime can make exceptions to this rule. For example, a crime which is less than 3 years can also be made cognizable.

Police Case
From the point of view of an accused person

The victim or witnesses of a crime can go to the police for any type of crime. For certain types of crimes known as 'cognizable crimes', the police need to register her complaint immediately. This is commonly known as a 'first information report' or FIR. If the victim has named you in her FIR or if the police think that you have committed the crime, they can question you.

If the police suspect you of having committed a crime, then it is likely that they will question or interrogate you. For cognizable crimes, the police need to take prompt action and start making inquiries as soon as possible. If they come to know that such a crime has been committed, they do not need the permission of the Magistrate to start investigation.

One of the first steps that the police take as part of their investigation process is to the visit the crime scene. From the crime scene, they try to gather information and proof relating to the facts of the case and the circumstances in which the crime seems to have been committed. As part of this process they can also question any suspects, without formally arresting them, or arrest the suspects.

Just before this they also need to send a copy of the FIR to the Magistrate. When the Magistrate receives this report, she can formally direct the police to conduct the investigation. She can also order her subordinate to conduct a basic inquiry before formally sanctioning an investigation.

Yes, they can, if the Magistrate has given them permission to start investigation. The police have the right to approach you and ask you questions. However, they must let you go after that unless they are arresting you. The crimes for which they need the permission of the Magistrate to start investigation are called non-cognizable crimes. These are less serious crimes such as adultery, defamation etc. When a non-cognizable crime has been committed, the police needs the permission of the Magistrate to start its investigation. It will need an arrest warrant from the Magistrate to make an arrest. Since these crimes do not need the police to act urgently, the normal process of getting permission from the Magistrate must be followed.

No, you should not sign a statement you made to the police officer. If you are being forced to sign the statement, it still cannot be used against you in the trial.

The police have a duty not to force you into giving evidence against yourself.

If you have been mistreated during your interrogation, you can file a complaint with:

  • the Superintendent of Police or other senior police officers, or
  • the Magistrate, or
  • the State Human Rights Commission, or
  • Police Complaint Authority (if they have been set up in your state).

Yes, they can. Usually they need a warrant to conduct a search. A search warrant is an order from the court allowing the police to search your home for any document or thing. The court can also order a search if it suspects that you have hidden stolen property, trapped someone or if you have certain types of unlawful things. These include :

  • counterfeit coins, notes and stamps, or illegal metal pieces used as money,
  • false seals,
  • offensive art and publications .

The police can conduct a search without a warrant if:

The law requires you  to cooperate with the police when they are conducting a search. If you do not cooperate, they can break into your house. If you hide things from them, they can search you as well.

  • The police should normally allow you to be present during the search.
  • If you are a woman and the police suspect you of hiding something when they are searching your house, they can search you so long as they get another woman officer to conduct the search.
  • The police officers have a duty to get independent witnesses  when they are conducting the search. The witnesses also need to sign the list of things found by the police.
  • You have a right to a copy of the list of things (seizure memo) that have been found on you or taken from your house.

If you want to confess to committing a crime, you can do so before a Metropolitan or Judicial Magistrate. The Magistrate:

  • will explain to you that you are not bound to make the confession;
  • will explain that it can be used as proof that you committed the crime in your trial;
  • has a duty to not record your confession if she is convinced that you are being forced by the police or anyone else to confess;
  • can allow you to audio record or video record your confession in the presence of your lawyer;
  • will not detain you if you tell her that you do not want to confess right before proceeding to record the confession;
  • can take the help of an interpreter or a special educator if you suffer from some kind of disability.

Please remember that you will need to sign the confession.

If you are below 18 years of age, then the Magistrate will record your statement in the exact language spoken by you. Also, the Magistrate will not allow your lawyer to be present while recording the statement.

The victim or witnesses of a crime can go to the police for any type of crime. For certain types of crimes known as 'cognizable crimes', the police need to register her complaint immediately. This is commonly known as a 'first information report' or FIR. If the victim has named you in her FIR or if the police think that you have committed the crime, they can question you.

If the police suspect you of having committed a crime, then it is likely that they will question or interrogate you. For cognizable crimes, the police need to take prompt action and start making inquiries as soon as possible. If they come to know that such a crime has been committed, they do not need the permission of the Magistrate to start investigation.

One of the first steps that the police take as part of their investigation process is to the visit the crime scene. From the crime scene, they try to gather information and proof relating to the facts of the case and the circumstances in which the crime seems to have been committed. As part of this process they can also question any suspects, without formally arresting them, or arrest the suspects.

Just before this they also need to send a copy of the FIR to the Magistrate. When the Magistrate receives this report, she can formally direct the police to conduct the investigation. She can also order her subordinate to conduct a basic inquiry before formally sanctioning an investigation.

Yes, they can, if the Magistrate has given them permission to start investigation. The police have the right to approach you and ask you questions. However, they must let you go after that unless they are arresting you. The crimes for which they need the permission of the Magistrate to start investigation are called non-cognizable crimes. These are less serious crimes such as adultery, defamation etc. When a non-cognizable crime has been committed, the police needs the permission of the Magistrate to start its investigation. It will need an arrest warrant from the Magistrate to make an arrest. Since these crimes do not need the police to act urgently, the normal process of getting permission from the Magistrate must be followed.

No, you should not sign a statement you made to the police officer. If you are being forced to sign the statement, it still cannot be used against you in the trial.

The police have a duty not to force you into giving evidence against yourself.

If you have been mistreated during your interrogation, you can file a complaint with:

  • the Superintendent of Police or other senior police officers, or
  • the Magistrate, or
  • the State Human Rights Commission, or
  • Police Complaint Authority (if they have been set up in your state).

Yes, they can. Usually they need a warrant to conduct a search. A search warrant is an order from the court allowing the police to search your home for any document or thing. The court can also order a search if it suspects that you have hidden stolen property, trapped someone or if you have certain types of unlawful things. These include :

  • counterfeit coins, notes and stamps, or illegal metal pieces used as money,
  • false seals,
  • offensive art and publications .

The police can conduct a search without a warrant if:

The law requires you  to cooperate with the police when they are conducting a search. If you do not cooperate, they can break into your house. If you hide things from them, they can search you as well.

  • The police should normally allow you to be present during the search.
  • If you are a woman and the police suspect you of hiding something when they are searching your house, they can search you so long as they get another woman officer to conduct the search.
  • The police officers have a duty to get independent witnesses  when they are conducting the search. The witnesses also need to sign the list of things found by the police.
  • You have a right to a copy of the list of things (seizure memo) that have been found on you or taken from your house.

If you want to confess to committing a crime, you can do so before a Metropolitan or Judicial Magistrate. The Magistrate:

  • will explain to you that you are not bound to make the confession;
  • will explain that it can be used as proof that you committed the crime in your trial;
  • has a duty to not record your confession if she is convinced that you are being forced by the police or anyone else to confess;
  • can allow you to audio record or video record your confession in the presence of your lawyer;
  • will not detain you if you tell her that you do not want to confess right before proceeding to record the confession;
  • can take the help of an interpreter or a special educator if you suffer from some kind of disability.

Please remember that you will need to sign the confession.

If you are below 18 years of age, then the Magistrate will record your statement in the exact language spoken by you. Also, the Magistrate will not allow your lawyer to be present while recording the statement.

Magistrate Case
From the point of view of an accused person

The judges who are in charge of criminal cases are called 'Magistrates'. There are many kinds of Magistrates in India. Instead of going to the police, the victim can file a complaint before a Magistrate. Even if the victim had gone to the police first, the police will direct her to the Magistrate if the crime committed was a 'non-cognizable' crime. The Magistrate has to question the person making a complaint,  and any witnesses.

Here's what the Magistrate can do:

If the Magistrate directed the police to conduct a small inquiry, the police can arrest you in this inquiry. You will not be appearing in court until the Magistrate issues an order for you.

The Magistrate usually has the choice to do any of these things. However, if a case is very serious, and has to be heard in a Sessions Court, then she has to conduct the inquiry herself - she cannot direct the police. The Magistrate has to provide you with copies of victim and witness statements, confessions and other documents which will be used by the victim's lawyers. She will then commit your case to the Sessions Court – she will send a notice to the government lawyer and send all the documents to the Sessions Court.

If the Magistrate dismisses your complaint, the victim has a right to challenge this decision before a higher court. You have a right to make your case before the higher court before it comes to a decision.

Yes, the Magistrate can start a criminal proceeding on her own if she comes to know about the commission of a crime. If the Magistrate has herself decided to start the case, you have the right to get your case transferred to another Magistrate for the actual trial.

Step 1 – Pre-trial formalities: You will normally get a copy of the complaint etc. with the summons you receive from the Magistrate. If the case is triable by a Sessions Court, the Magistrate will send this case to the Sessions Court only after making sure all these formalities are fulfilled.

Step 2 – Complainant evidence: In such trials, the Magistrate will first let the complainant examine its witnesses and submit proof of their case.

Step 3 – Discharge: You can apply for a discharge during this process. If the Magistrate thinks there is no case against you, she will discharge you. Even otherwise, the Magistrate may discharge you if after completing complainaint evidence it appears that there is no case made out.

Step 4 – Framing of charges: The Magistrate will frame the charge against you and ask you if you plead guilty.

Step 5 – Cross-examination: If you do not plead guilty, you and your lawyer can cross-examine any of the prosecution witnesses.

Step 6 – Defence evidence: The Magistrate will then let you and your lawyer examine your own witnesses and submit proof that you have gathered to prove your innocence.

Step 7 – Judgment: The Magistrate will decide if you are guilty or innocent.

Please note that the trial procedure is different for cases in which the crime is punishable with less than 2 years' jail time. If the crime you have been accused of attracts less than 2 years' jail time, the trial procedure will be that of a 'summons case'. Read more about a summons case trial procedure .

The judges who are in charge of criminal cases are called 'Magistrates'. There are many kinds of Magistrates in India. Instead of going to the police, the victim can file a complaint before a Magistrate. Even if the victim had gone to the police first, the police will direct her to the Magistrate if the crime committed was a 'non-cognizable' crime. The Magistrate has to question the person making a complaint,  and any witnesses.

Here's what the Magistrate can do:

If the Magistrate directed the police to conduct a small inquiry, the police can arrest you in this inquiry. You will not be appearing in court until the Magistrate issues an order for you.

The Magistrate usually has the choice to do any of these things. However, if a case is very serious, and has to be heard in a Sessions Court, then she has to conduct the inquiry herself - she cannot direct the police. The Magistrate has to provide you with copies of victim and witness statements, confessions and other documents which will be used by the victim's lawyers. She will then commit your case to the Sessions Court – she will send a notice to the government lawyer and send all the documents to the Sessions Court.

If the Magistrate dismisses your complaint, the victim has a right to challenge this decision before a higher court. You have a right to make your case before the higher court before it comes to a decision.

Yes, the Magistrate can start a criminal proceeding on her own if she comes to know about the commission of a crime. If the Magistrate has herself decided to start the case, you have the right to get your case transferred to another Magistrate for the actual trial.

Step 1 – Pre-trial formalities: You will normally get a copy of the complaint etc. with the summons you receive from the Magistrate. If the case is triable by a Sessions Court, the Magistrate will send this case to the Sessions Court only after making sure all these formalities are fulfilled.

Step 2 – Complainant evidence: In such trials, the Magistrate will first let the complainant examine its witnesses and submit proof of their case.

Step 3 – Discharge: You can apply for a discharge during this process. If the Magistrate thinks there is no case against you, she will discharge you. Even otherwise, the Magistrate may discharge you if after completing complainaint evidence it appears that there is no case made out.

Step 4 – Framing of charges: The Magistrate will frame the charge against you and ask you if you plead guilty.

Step 5 – Cross-examination: If you do not plead guilty, you and your lawyer can cross-examine any of the prosecution witnesses.

Step 6 – Defence evidence: The Magistrate will then let you and your lawyer examine your own witnesses and submit proof that you have gathered to prove your innocence.

Step 7 – Judgment: The Magistrate will decide if you are guilty or innocent.

Please note that the trial procedure is different for cases in which the crime is punishable with less than 2 years' jail time. If the crime you have been accused of attracts less than 2 years' jail time, the trial procedure will be that of a 'summons case'. Read more about a summons case trial procedure .

Arrest
From the point of view of an accused person

A warrant is an official order that is signed by a Magistrate in which she orders the police to do something. Arrest warrants are an order to the police to arrest someone. In certain situations, the Magistrate can also ask anyone else to execute an arrest warrant .

No, they do not need a warrant if they suspect that you committed a serious crime. Such crimes for which you can be arrested even without an arrest warrant are known as 'cognizable' crimes. Examples include murder, sexual offences, acid attack, rioting, starting a fire etc. Normally, it is the Magistrate which will take charge of a crime. Since these type of crimes need urgent action from the police, the police can take charge even without permission from the Magistrate.

Non-cognizable crimes are less serious crimes such as adultery, defamation etc. When a non-cognizable crime has been committed, the police needs the permission of the Magistrate to make an arrest. Generally, since these crimes are more private in nature and do not need the police to act urgently, the normal process of getting permission from the Magistrate must be followed. There is an exception to this general rule if the police see you committing or someone accuses you of committing a non-cognizable crime when the police are around. In such situations the police can arrest you if you refuse to tell them your name and address or give them the wrong name and address.

The police can arrest you without a warrant in two broad cases. One, where you are suspected of having committed a cognizable crime.  Two, where the police suspect you are [planning to commit a cognizable crime.

In the first category, the law lays down the specific situations in which the police can arrest you without an arrest warrant:

  • when you commit a crime in front of a police officer (for example at a public event or in a police station);
  • when the police have received reliable information or a complaint that you have committed a cognizable crime;
  • if the court has declared you as a proclaimed offender;
  • if the police found you with stolen property and they suspect you;
  • if you cause trouble to a police officer who is performing her duty;
  • if you escape from custody;
  • if you are suspected of deserting the army;
  • if you are a suspect in a crime outside India and you are liable to be brought back to India; or
  • if you were convicted of a crime in the past and have violated rules relating to released convicts.

The possibility of being arrested is much lesser if you have been accused of a cognizable crime with jail time of less than seven years. The police should have reliable information which points to your involvement. Further you can be arrested only if:

  • you are likely to escape, destroy evidence, or influence the victim or witnesses,
  • you are likely to commit yet another crime, or
  • if your presence is necessary for police investigation.

The Supreme Court has held that in every such case the police must begin by issuing a 'notice of appearance' asking you to appear at the police station. If the police then think that they need to arrest you, they will need to have proper reasons for doing so and will need to record these reasons. The police officer makes an 'Arrest Memo' at the time of arrest that contains this and other details which is signed by you. The Supreme Court has also directed the police to issue a notice of appearance within 2 weeks of starting a case. If they are not making an arrest, they have to inform the Magistrate.

Resisting an arrest does not help - it only allows the police to use force to arrest you. If you do not submit to being arrested, the police can use all means necessary to arrest you. Though they have a duty not to cause your death, they can use deadly force if you are being accused of a crime which is punishable with death or prison for the rest of your life.

Yes. The police have a duty to inform you about the reasons for your arrest. They also need to tell you of your right to be released on bail. If they have an arrest warrant, they should tell you the main reasons for the issue of the warrant. If you ask them to show you the warrant, they have a duty to show you the warrant .

You have a right to inform your relatives or friends about your arrest . The police should inform you of this right as soon as they take you to the police station and enter details in a diary maintained for this purpose.

Yes, the police can search you when they are arresting you and place anything they find in safe custody. If you are a woman, you can be searched only by another woman. The police have to give you a personal search memo which is a list of all the things that they have taken – this search memo is sometimes known as jamatalashi. They can also take your fingerprints with the permission of the Magistrate.

Yes, there are two purposes for which you can be examined.

  • The first is to determine if you as the accused have been hurt or subject to violence by the police. You can ask for a copy of the report prepared by the doctor. If you are a woman, then a female doctor has to conduct the investigation .
  • If the police think that a medical examination can prove that you committed a crime, then can ask a doctor to conduct an examination on you. If you do not cooperate with the doctor, they can use reasonable force on you.

The police need to present you before the Magistrate as soon as possible after you have been arrested. They cannot keep you under arrest for more than 24 hours – this excludes travel time to the court. The police officer will also need to provide a copy of the entries in the case diary to the Magistrate. The case diary is a daily diary kept by an officer detailing all that happens in an investigation. The Supreme Court has directed the police officers to provide the Magistrate a check list of the reasons for your arrest along with all documents related to your arrest including the arrest memo.

After you've been presented before the Magistrate, the Magistrate can discharge you or grant you bail. Your lawyer should ask for your release if the police only needed to issue a 'notice of appearance' and not actually arrest you. The police can detain you beyond 24 hours only with permission of the Magistrate. They may seek 'police custody' or 'judicial custody'. Police custody can only last 15 days from the date of arrest. This means you will kept inside the lock-up at the police station for a maximum of fourteen more days.

If the police have not been able to file the charge-sheet and depending on the crime you have been suspected of, you can be in judicial custody for up to 60 days or 90 days:

 

Type of Crime

Maximum time in Prison (for investigation)

Very serious crimes for which you can be punished with death, or for which you can be sent to prison for the rest of your life

90 days

Crimes for which you can be sent to prison for more than 10 years

90 days

Any other kind of offence

60 days

 

You cannot be sent to jail for more than fourteen days at a time even in judicial custody. You will be brought before the Magistrate after each fourteen day period. After the 60 or 90 day period, you have a right to be released on bail.

  • The police should not unnecessarily restrain you - all they need to ensure is that you do not escape.
  • The police have to wear correct and visible name tags so that you know who is arresting you.
  • The police have to prepare an arrest memo which should be signed by you, your relative or a respected person of the locality. The arrest memo should contain the time and date of your arrest and should be given to the Magistrate when you are first sent to court.
  • The police should ensure that the names of the arrested persons and the officers making the arrest are displayed on the notice board of the district control room.

A warrant is an official order that is signed by a Magistrate in which she orders the police to do something. Arrest warrants are an order to the police to arrest someone. In certain situations, the Magistrate can also ask anyone else to execute an arrest warrant .

No, they do not need a warrant if they suspect that you committed a serious crime. Such crimes for which you can be arrested even without an arrest warrant are known as 'cognizable' crimes. Examples include murder, sexual offences, acid attack, rioting, starting a fire etc. Normally, it is the Magistrate which will take charge of a crime. Since these type of crimes need urgent action from the police, the police can take charge even without permission from the Magistrate.

Non-cognizable crimes are less serious crimes such as adultery, defamation etc. When a non-cognizable crime has been committed, the police needs the permission of the Magistrate to make an arrest. Generally, since these crimes are more private in nature and do not need the police to act urgently, the normal process of getting permission from the Magistrate must be followed. There is an exception to this general rule if the police see you committing or someone accuses you of committing a non-cognizable crime when the police are around. In such situations the police can arrest you if you refuse to tell them your name and address or give them the wrong name and address.

The police can arrest you without a warrant in two broad cases. One, where you are suspected of having committed a cognizable crime.  Two, where the police suspect you are [planning to commit a cognizable crime.

In the first category, the law lays down the specific situations in which the police can arrest you without an arrest warrant:

  • when you commit a crime in front of a police officer (for example at a public event or in a police station);
  • when the police have received reliable information or a complaint that you have committed a cognizable crime;
  • if the court has declared you as a proclaimed offender;
  • if the police found you with stolen property and they suspect you;
  • if you cause trouble to a police officer who is performing her duty;
  • if you escape from custody;
  • if you are suspected of deserting the army;
  • if you are a suspect in a crime outside India and you are liable to be brought back to India; or
  • if you were convicted of a crime in the past and have violated rules relating to released convicts.

The possibility of being arrested is much lesser if you have been accused of a cognizable crime with jail time of less than seven years. The police should have reliable information which points to your involvement. Further you can be arrested only if:

  • you are likely to escape, destroy evidence, or influence the victim or witnesses,
  • you are likely to commit yet another crime, or
  • if your presence is necessary for police investigation.

The Supreme Court has held that in every such case the police must begin by issuing a 'notice of appearance' asking you to appear at the police station. If the police then think that they need to arrest you, they will need to have proper reasons for doing so and will need to record these reasons. The police officer makes an 'Arrest Memo' at the time of arrest that contains this and other details which is signed by you. The Supreme Court has also directed the police to issue a notice of appearance within 2 weeks of starting a case. If they are not making an arrest, they have to inform the Magistrate.

Resisting an arrest does not help - it only allows the police to use force to arrest you. If you do not submit to being arrested, the police can use all means necessary to arrest you. Though they have a duty not to cause your death, they can use deadly force if you are being accused of a crime which is punishable with death or prison for the rest of your life.

Yes. The police have a duty to inform you about the reasons for your arrest. They also need to tell you of your right to be released on bail. If they have an arrest warrant, they should tell you the main reasons for the issue of the warrant. If you ask them to show you the warrant, they have a duty to show you the warrant .

You have a right to inform your relatives or friends about your arrest . The police should inform you of this right as soon as they take you to the police station and enter details in a diary maintained for this purpose.

Yes, the police can search you when they are arresting you and place anything they find in safe custody. If you are a woman, you can be searched only by another woman. The police have to give you a personal search memo which is a list of all the things that they have taken – this search memo is sometimes known as jamatalashi. They can also take your fingerprints with the permission of the Magistrate.

Yes, there are two purposes for which you can be examined.

  • The first is to determine if you as the accused have been hurt or subject to violence by the police. You can ask for a copy of the report prepared by the doctor. If you are a woman, then a female doctor has to conduct the investigation .
  • If the police think that a medical examination can prove that you committed a crime, then can ask a doctor to conduct an examination on you. If you do not cooperate with the doctor, they can use reasonable force on you.

The police need to present you before the Magistrate as soon as possible after you have been arrested. They cannot keep you under arrest for more than 24 hours – this excludes travel time to the court. The police officer will also need to provide a copy of the entries in the case diary to the Magistrate. The case diary is a daily diary kept by an officer detailing all that happens in an investigation. The Supreme Court has directed the police officers to provide the Magistrate a check list of the reasons for your arrest along with all documents related to your arrest including the arrest memo.

After you've been presented before the Magistrate, the Magistrate can discharge you or grant you bail. Your lawyer should ask for your release if the police only needed to issue a 'notice of appearance' and not actually arrest you. The police can detain you beyond 24 hours only with permission of the Magistrate. They may seek 'police custody' or 'judicial custody'. Police custody can only last 15 days from the date of arrest. This means you will kept inside the lock-up at the police station for a maximum of fourteen more days.

If the police have not been able to file the charge-sheet and depending on the crime you have been suspected of, you can be in judicial custody for up to 60 days or 90 days:

 

Type of Crime

Maximum time in Prison (for investigation)

Very serious crimes for which you can be punished with death, or for which you can be sent to prison for the rest of your life

90 days

Crimes for which you can be sent to prison for more than 10 years

90 days

Any other kind of offence

60 days

 

You cannot be sent to jail for more than fourteen days at a time even in judicial custody. You will be brought before the Magistrate after each fourteen day period. After the 60 or 90 day period, you have a right to be released on bail.

  • The police should not unnecessarily restrain you - all they need to ensure is that you do not escape.
  • The police have to wear correct and visible name tags so that you know who is arresting you.
  • The police have to prepare an arrest memo which should be signed by you, your relative or a respected person of the locality. The arrest memo should contain the time and date of your arrest and should be given to the Magistrate when you are first sent to court.
  • The police should ensure that the names of the arrested persons and the officers making the arrest are displayed on the notice board of the district control room.
Bail
From the point of view of an accused person

Bail is how you get released when under arrest. To be released 'on bail' means there are limits to your freedom – you may be barred from leaving the country and travelling without permission, and have to appear before the police/court whenever they need you.

When you have been placed under arrest, you can be released if you sign a bond under which you give some security. This security assures the court that you will be present for your trial. You may also need to get some people to act as sureties. They will have to pay the amount of bail if you do not appear - in this way, they act as a guarantee to the court that you will be present as and when necessary.

When you approach court for bail, the court wants sufficient guarantees to ensure you won't run away. The court may ask you to get some people to take this responsibility. These persons are known as 'sureties'. Your surety should be someone known to you like your friends or family and ideally be from the same place. You don't always need a surety to be released.

A surety does not have to always remain a surety. A person can apply to be 'discharged' as a surety - you will need to replace the surety. If you can't replace the surety, you will be taken into custody.

Bail also usually involves a 'bail bond' of monetary value. This is another way to make sure you won't run away. If you violate any of the bail conditions, this money may be taken away.

Usually, the court will ask your surety to file a Fixed Deposit Receipt [FDR] for the amount of bail fixed. If she cannot do this, she may have to show proof of owning property worth the bail amount. This could include things like jewelry and cars.

  • If bail is granted, it may be granted 'subject to verification'. This means that the court will inquire whether the details you have provided of the surety and property are genuine. The police may come check the address of the surety, and may call up the bank to verify whether the FDR actually exists.
  • If a surety applies for discharge, the amount of bail deposited will be returned. Similarly, once the trial ends, the bail bonds are automatically discharged and the bail amount shall be returned.

If you think you are being suspected of a non-bailable crime, you can apply to the High Court or Sessions Court to order the police to immediately release you when they make an arrest.  This is commonly known as 'anticipatory bail'. Please remember that if you are being suspected of a bailable crime, you do not need to make an application for anticipatory bail. The police have to grant you bail anyway.

You can make this application whenever you have a reason to believe that you might be arrested. It is not necessary that an FIR has been filed against you. The court will first pass a temporary order if it decides that you can be granted such bail. It will then inform the police and the prosecutor. After hearing them, the court may convert your temporary protection into a final order granting anticipatory bail. The court can include any kind of conditions if it grants you bail such as appearing before the police whenever needed, staying away from witnesses and taking permission before the country.

  • Yes, if the crime you are accused of is a 'bailable' crime, the police officer has to grant you bail if you are able to give the bail bond. Generally, if the crime is not serious or the jail time which can be imposed is less than three years, the law treats the crime as a 'bailable' crime. This is however not a hard and fast rule and there are exceptions - each crime under the Indian Penal Code is categorized as either bailable or non-bailable.

  • If the police don't release you, they still have to take you before a Magistrate within 24 hours of arrest. The Magistrate will pass an order fixing amount of bail so that you can be released.

  • If you have already been released on bail for a bailable crime and you do not obey the conditions, the court can refuse to grant you bail at your next appearance.

  • If the crime is non-bailable, it does not mean that you cannot get bail. It means that bail is no longer a right and the court will decide  whether you can get bail or not. You will be brought before a magistrate within 24 hours of arrest. You can file a bail application the moment you are before a Magistrate.The court considers various factors before deciding whether to grant your bail, such as whether you are needed for the investigation, whether you will run away, whether you will tamper with evidence or threaten witnesses, seriousness of the crime and whether you are likely to commit another crime.

  • When you are produced before the Magistrate right after your arrest, the Magistrate can send you back to jail for 14 days at a time. This can go on up to 90 days or 60 days depending on the crime. After this, you have the right to be released if you are able to provide bail.You will not be automatically released - you will have to make an application. If the police file a charge-sheet before you file the application, you will loose this right.

  • For certain serious crimes, the court will definitely impose conditions on you when granting bail:

    • You will have to attend court according to the bond conditions.
    • You cannot commit a similar crime.
    • You will not influence or threaten the victim, witnesses or any other suspects.

Yes, if the court believes that you have committed a non-bailable crime which attracts death punishment, it cannot grant you bail. Similarly, unless there are special reasons, the court cannot grant you bail in the following situations:

 

If...

And...

You were convicted in the past for a crime which could attract:

  • death punishment,
  • prison for life, or
  • jail time of more than 7 years

The crime you have been accused of now is a cognizable crime

You were convicted in the past more than once for a cognizable crime

Committing that crime could have sent you to jail for between 3 and 7 years

Special Exceptions for Women and Children - If you are a woman or child below 16 and have committed any of the above crimes, the court cannot deny you bail.

Yes, even if you have been released on bail for a non-bailable crime, the court can pass an order for your arrest if it thinks that your arrest is necessary.

  • Yes, the court has to release you if you have been in jail for as long as the maximum jail time that could have been imposed on you.
  • You have a right to be considered for release if you have been in jail for one half of the maximum jail time that could have been imposed on you. The court can still send you back to jail or release you on a personal bond (with or without sureties) . If you are sent back to jail, please note that you have the right to be released once you have served the maximum jail time.
  • However, neither of these rules apply if you are accused of a crime attracting death punishment.
  • You have a right to be considered for release if your crime was tried by a Magistrate and the trial has not concluded within 60 days from the first date on which evidence was supposed to have been taken.

The court has a duty to impose a bail amount according to your circumstances. The court has to release you by asking you to sign a bond without sureties if:

  • you have been accused of a bailable offence,
  • you cannot afford the surety amount, and
  • you have been in jail for 7 days from the date of your arrest.

However, this does not apply to a situation where you have been kept in jail because of security proceedings for keeping peace or maintaining good behavior or you have not obeyed conditions of a previous bail .

Yes, you can approach a higher court - Sessions Court or the High Court. These courts have general powers to grant someone bail and to modify bail conditions. You can also try to wait and file another application before the same court. If you are filing another application before the same court, you have to show what change has happened from the time you were refused bail.

Yes, the court will ask you to sign a bail bond just before the trial gets over. This is because the government can always appeal against the decision. This bond will have sureties and will need you to appear before a higher court if the appeal is filed. This has a 6 month time limit - so if no appeal is filed within that time, you are completely free.

Bail is how you get released when under arrest. To be released 'on bail' means there are limits to your freedom – you may be barred from leaving the country and travelling without permission, and have to appear before the police/court whenever they need you.

When you have been placed under arrest, you can be released if you sign a bond under which you give some security. This security assures the court that you will be present for your trial. You may also need to get some people to act as sureties. They will have to pay the amount of bail if you do not appear - in this way, they act as a guarantee to the court that you will be present as and when necessary.

When you approach court for bail, the court wants sufficient guarantees to ensure you won't run away. The court may ask you to get some people to take this responsibility. These persons are known as 'sureties'. Your surety should be someone known to you like your friends or family and ideally be from the same place. You don't always need a surety to be released.

A surety does not have to always remain a surety. A person can apply to be 'discharged' as a surety - you will need to replace the surety. If you can't replace the surety, you will be taken into custody.

Bail also usually involves a 'bail bond' of monetary value. This is another way to make sure you won't run away. If you violate any of the bail conditions, this money may be taken away.

Usually, the court will ask your surety to file a Fixed Deposit Receipt [FDR] for the amount of bail fixed. If she cannot do this, she may have to show proof of owning property worth the bail amount. This could include things like jewelry and cars.

  • If bail is granted, it may be granted 'subject to verification'. This means that the court will inquire whether the details you have provided of the surety and property are genuine. The police may come check the address of the surety, and may call up the bank to verify whether the FDR actually exists.
  • If a surety applies for discharge, the amount of bail deposited will be returned. Similarly, once the trial ends, the bail bonds are automatically discharged and the bail amount shall be returned.

If you think you are being suspected of a non-bailable crime, you can apply to the High Court or Sessions Court to order the police to immediately release you when they make an arrest.  This is commonly known as 'anticipatory bail'. Please remember that if you are being suspected of a bailable crime, you do not need to make an application for anticipatory bail. The police have to grant you bail anyway.

You can make this application whenever you have a reason to believe that you might be arrested. It is not necessary that an FIR has been filed against you. The court will first pass a temporary order if it decides that you can be granted such bail. It will then inform the police and the prosecutor. After hearing them, the court may convert your temporary protection into a final order granting anticipatory bail. The court can include any kind of conditions if it grants you bail such as appearing before the police whenever needed, staying away from witnesses and taking permission before the country.

  • Yes, if the crime you are accused of is a 'bailable' crime, the police officer has to grant you bail if you are able to give the bail bond. Generally, if the crime is not serious or the jail time which can be imposed is less than three years, the law treats the crime as a 'bailable' crime. This is however not a hard and fast rule and there are exceptions - each crime under the Indian Penal Code is categorized as either bailable or non-bailable.

  • If the police don't release you, they still have to take you before a Magistrate within 24 hours of arrest. The Magistrate will pass an order fixing amount of bail so that you can be released.

  • If you have already been released on bail for a bailable crime and you do not obey the conditions, the court can refuse to grant you bail at your next appearance.

  • If the crime is non-bailable, it does not mean that you cannot get bail. It means that bail is no longer a right and the court will decide  whether you can get bail or not. You will be brought before a magistrate within 24 hours of arrest. You can file a bail application the moment you are before a Magistrate.The court considers various factors before deciding whether to grant your bail, such as whether you are needed for the investigation, whether you will run away, whether you will tamper with evidence or threaten witnesses, seriousness of the crime and whether you are likely to commit another crime.

  • When you are produced before the Magistrate right after your arrest, the Magistrate can send you back to jail for 14 days at a time. This can go on up to 90 days or 60 days depending on the crime. After this, you have the right to be released if you are able to provide bail.You will not be automatically released - you will have to make an application. If the police file a charge-sheet before you file the application, you will loose this right.

  • For certain serious crimes, the court will definitely impose conditions on you when granting bail:

    • You will have to attend court according to the bond conditions.
    • You cannot commit a similar crime.
    • You will not influence or threaten the victim, witnesses or any other suspects.

Yes, if the court believes that you have committed a non-bailable crime which attracts death punishment, it cannot grant you bail. Similarly, unless there are special reasons, the court cannot grant you bail in the following situations:

 

If...

And...

You were convicted in the past for a crime which could attract:

  • death punishment,
  • prison for life, or
  • jail time of more than 7 years

The crime you have been accused of now is a cognizable crime

You were convicted in the past more than once for a cognizable crime

Committing that crime could have sent you to jail for between 3 and 7 years

Special Exceptions for Women and Children - If you are a woman or child below 16 and have committed any of the above crimes, the court cannot deny you bail.

Yes, even if you have been released on bail for a non-bailable crime, the court can pass an order for your arrest if it thinks that your arrest is necessary.

  • Yes, the court has to release you if you have been in jail for as long as the maximum jail time that could have been imposed on you.
  • You have a right to be considered for release if you have been in jail for one half of the maximum jail time that could have been imposed on you. The court can still send you back to jail or release you on a personal bond (with or without sureties) . If you are sent back to jail, please note that you have the right to be released once you have served the maximum jail time.
  • However, neither of these rules apply if you are accused of a crime attracting death punishment.
  • You have a right to be considered for release if your crime was tried by a Magistrate and the trial has not concluded within 60 days from the first date on which evidence was supposed to have been taken.

The court has a duty to impose a bail amount according to your circumstances. The court has to release you by asking you to sign a bond without sureties if:

  • you have been accused of a bailable offence,
  • you cannot afford the surety amount, and
  • you have been in jail for 7 days from the date of your arrest.

However, this does not apply to a situation where you have been kept in jail because of security proceedings for keeping peace or maintaining good behavior or you have not obeyed conditions of a previous bail .

Yes, you can approach a higher court - Sessions Court or the High Court. These courts have general powers to grant someone bail and to modify bail conditions. You can also try to wait and file another application before the same court. If you are filing another application before the same court, you have to show what change has happened from the time you were refused bail.

Yes, the court will ask you to sign a bail bond just before the trial gets over. This is because the government can always appeal against the decision. This bond will have sureties and will need you to appear before a higher court if the appeal is filed. This has a 6 month time limit - so if no appeal is filed within that time, you are completely free.

Settling Crimes
From the point of view of an accused person

Yes, depending on the crime you have been accused of. The law allows you to settle certain types of crimes - these crimes are generally private in nature and not serious in comparison to other crimes. Generally, if the victim of such a crime and the accused reach a settlement, the crime can be compounded.

If the crime you have been accused of does not appear in the list provided for in the Criminal Procedure Code, 1973, it is considered 'non-compoundable'. The same rule applies to crimes under laws other than the Indian Penal Code, 1860 - generally, these special crimes are not compoundable unless that law expressly says that it is.

Even if the crime you have been accused of is 'non-compoundable', in some situations the High Court can close the case, at any stage. This is called 'quashing'. For example, if you have reached an agreement with the victim on a non-compoundable crime, the High Court can decide to stop the criminal proceeding against you. It is more likely to be allowed in matrimonial or property disputes. It will usually not be allowed in more serious crimes such as robbery, murder, rape etc.

Generally, it is the victim of the crime who can initiate settlement of the crime. The list provided in the Criminal Procedure Code talks about who can compound the crime. Of these crimes, some can be settled only with the permission of the judge before whom the trial of the crime is pending.

For compoundable crimes, the crime can be settled at any time during the trial before the sentence is decided. If the judge has found you guilty, you can still try and settle the crime if you have filed an appeal and the higher court allows you. When the case is settled in this manner, you are basically considered guilty of committing the crime.

  • You have only been accused of helping someone commit the crime
    • Yes, if the crime you helped commit is in the list of crimes which can be settled under the Criminal Procedure Code.
  • Victim of the crime is under 18 or is mentally ill
    • Yes, the guardian or any other person who is legally allowed to represent him or her can settle the case on behalf of the victim with the permission of the judge.
  • Victim of the crime dies
    • Yes, the legal representative of the victim can settle the case on behalf of the victim with the permission of the judge.

Generally no. In certain situations, the law treats you differently if you have been convicted of a crime in the past - for repeat offenders, you can be liable for more jail time or more fine. You cannot settle the second crime in such situations.

Yes, depending on the crime you have been accused of. The law allows you to settle certain types of crimes - these crimes are generally private in nature and not serious in comparison to other crimes. Generally, if the victim of such a crime and the accused reach a settlement, the crime can be compounded.

If the crime you have been accused of does not appear in the list provided for in the Criminal Procedure Code, 1973, it is considered 'non-compoundable'. The same rule applies to crimes under laws other than the Indian Penal Code, 1860 - generally, these special crimes are not compoundable unless that law expressly says that it is.

Even if the crime you have been accused of is 'non-compoundable', in some situations the High Court can close the case, at any stage. This is called 'quashing'. For example, if you have reached an agreement with the victim on a non-compoundable crime, the High Court can decide to stop the criminal proceeding against you. It is more likely to be allowed in matrimonial or property disputes. It will usually not be allowed in more serious crimes such as robbery, murder, rape etc.

Generally, it is the victim of the crime who can initiate settlement of the crime. The list provided in the Criminal Procedure Code talks about who can compound the crime. Of these crimes, some can be settled only with the permission of the judge before whom the trial of the crime is pending.

For compoundable crimes, the crime can be settled at any time during the trial before the sentence is decided. If the judge has found you guilty, you can still try and settle the crime if you have filed an appeal and the higher court allows you. When the case is settled in this manner, you are basically considered guilty of committing the crime.

  • You have only been accused of helping someone commit the crime
    • Yes, if the crime you helped commit is in the list of crimes which can be settled under the Criminal Procedure Code.
  • Victim of the crime is under 18 or is mentally ill
    • Yes, the guardian or any other person who is legally allowed to represent him or her can settle the case on behalf of the victim with the permission of the judge.
  • Victim of the crime dies
    • Yes, the legal representative of the victim can settle the case on behalf of the victim with the permission of the judge.

Generally no. In certain situations, the law treats you differently if you have been convicted of a crime in the past - for repeat offenders, you can be liable for more jail time or more fine. You cannot settle the second crime in such situations.

Trial Starts
From the point of view of an accused person

When the police file the charge-sheet, it means that they have finished the investigation in your case. This report will indicate whether the police think that you have committed a crime based on their investigation and the proof they have collected. The Magistrate will then take judicial notice of the crime – this is known as taking cognizance. The Magistrate is not bound by the police report - she can also choose to question the victim and take her statement on oath. After this, if she is convinced that there is no case, she can dismiss the case. The Magistrate has to provide you with a copy of the charge-sheet along with the FIR, witness statements, confessions and other relevant documents submitted by the police.

The charge sheet will contain the following information:

  • names of the parties;
  • nature of information;
  • names of the people who know something about the case;
  • whether a crime was committed and who committed it;
  • whether the accused has been arrested, whether she has been released (and if there are sureties);
  • medical examination reports (if the crime committed was rape).

Once the Magistrate is convinced that there might be a case, she starts the judicial process by calling you to court. This can be done by either issuing a 'summons' or a 'warrant' for you:

  • If the crime you have been accused of attracts jail time of more than two years or death punishment, then the Magistrate can issue a warrant to ensure your appearance in court. This means you can be arrested if you do not appear before the Magistrate.
  • For any other crime, the Magistrate has to issue a 'summons'. A summons is an order from a court asking you to appear in court. You can ask your lawyer to make an application before the Magistrate so that you need not attend in person.

The Magistrate then decides which court should hear the case. She 'commits' the case to that court by sending all the material. Since certain crimes can only be tried before a Sessions Court, the Magistrate will commit such cases to the Sessions Court. The Magistrate has to ensure that copies of the charge-sheet etc. have been provided to you . It is crucial that you have all of the papers because this is how you defend yourself. If you think some pages or documents are missing, you can file an application asking the Court to provide all these materials.

That court then usually starts the trial by looking at the accusations against you. If the court thinks there is not enough evidence against you, it can discharge you, or let you go. If the court thinks there is enough evidence, it will 'frame charges' – basically let you know exactly what you are accused of. Based on the court your case has been committed to and the seriousness of the crime you have been accused of, there are different types of trials. While the stages and procedures vary slightly, the essential features of a trial are the same.

  • At the beginning of the trial, the court will charge you with specific crimes and ask you if you are guilty or 'not guilty'. If you plead guilty, the court will pass a sentence and that ends the matter. If you plead not guilty, the law will treat you as innocent of the crime committed. It is only if the other side proves their case against you and convinces the court, that you will be found guilty. Please note that separately, there is a procedure for plea bargaining , where you can try and work out an acceptable punishment with the prosecutor or victim.
  • In cases where the police have conducted an investigation and filed a report, the government prosecutor will be the opposite side in your trial. They will try and prove that you were guilty of committing the crimes that the police have alleged against you. In cases where the police have not conducted an investigation, the victim and their lawyer will try and prove your guilt.
  • First the prosecution questions their witnesses and submit evidence or proof (which become 'exhibits'). You have a right to question the witnesses and the proof submitted by the prosecution – this is called cross-examination.
  • After this, the court will ask you some questions which you answer without taking any oath. Once you are questioned, it will ask you whether you want to being witnesses and submit proof. Once you have finished examining witnesses and submitted evidence, the court will hear arguments from both sides and pass a judgment.
  • There are some variations in the procedure based on the court before which the case is being conducted and based on the type of the crime you have been accused of.

With respect to trial procedures in a court, crimes are again of two types:

  • Warrant cases - Crimes which attract jail time of more than 2 years (including those which attract death penalty or jail for the rest of your life) are known as warrant cases.
  • Summons cases - Crimes which attract jail time of less than 2 years are known as summons cases.

Based on the court in which the trial happens, there are four different types of trial procedures:

  • Trial before a Sessions Court – This is generally the most elaborate procedure and is applicable to all crimes which have to be conducted in a Sessions Court. Usually very serious crimes such as murder, rape etc. have to be tried in a Sessions Court. To know if your case will be tried in a Sessions Court, please check here  which specifies which court will try a particular crime. For crimes under other laws i.e. laws other than the Indian Penal Code, the general rule is that if the crime attracts jail time of more than 7 years, it has to be tried in a Sessions Court.
  • Trial of warrant cases before a Magistrate – Trial of such cases is fairly elaborate and very similar to the trial procedure before a Sessions Court. Unlike in a Sessions Court, the prosecutor does not have to present its opening case before presenting the full evidence.
  • Trial of summon cases before a Magistrate – Trials of summons cases is less elaborate because the crimes are generally less serious. Unlike trial of warrant cases, the Magistrate does not have to frame formal charges – she only needs to explain the particulars of the crime to you.
  • Summary Trials – For some simple crimes, the Magistrate can decide to hold a summary trial. The procedure followed is the same as a summons case, but the Magistrate only needs to ensure that key facts and findings are recorded, so that the trial is completed quickly.

When the police file the charge-sheet, it means that they have finished the investigation in your case. This report will indicate whether the police think that you have committed a crime based on their investigation and the proof they have collected. The Magistrate will then take judicial notice of the crime – this is known as taking cognizance. The Magistrate is not bound by the police report - she can also choose to question the victim and take her statement on oath. After this, if she is convinced that there is no case, she can dismiss the case. The Magistrate has to provide you with a copy of the charge-sheet along with the FIR, witness statements, confessions and other relevant documents submitted by the police.

The charge sheet will contain the following information:

  • names of the parties;
  • nature of information;
  • names of the people who know something about the case;
  • whether a crime was committed and who committed it;
  • whether the accused has been arrested, whether she has been released (and if there are sureties);
  • medical examination reports (if the crime committed was rape).

Once the Magistrate is convinced that there might be a case, she starts the judicial process by calling you to court. This can be done by either issuing a 'summons' or a 'warrant' for you:

  • If the crime you have been accused of attracts jail time of more than two years or death punishment, then the Magistrate can issue a warrant to ensure your appearance in court. This means you can be arrested if you do not appear before the Magistrate.
  • For any other crime, the Magistrate has to issue a 'summons'. A summons is an order from a court asking you to appear in court. You can ask your lawyer to make an application before the Magistrate so that you need not attend in person.

The Magistrate then decides which court should hear the case. She 'commits' the case to that court by sending all the material. Since certain crimes can only be tried before a Sessions Court, the Magistrate will commit such cases to the Sessions Court. The Magistrate has to ensure that copies of the charge-sheet etc. have been provided to you . It is crucial that you have all of the papers because this is how you defend yourself. If you think some pages or documents are missing, you can file an application asking the Court to provide all these materials.

That court then usually starts the trial by looking at the accusations against you. If the court thinks there is not enough evidence against you, it can discharge you, or let you go. If the court thinks there is enough evidence, it will 'frame charges' – basically let you know exactly what you are accused of. Based on the court your case has been committed to and the seriousness of the crime you have been accused of, there are different types of trials. While the stages and procedures vary slightly, the essential features of a trial are the same.

  • At the beginning of the trial, the court will charge you with specific crimes and ask you if you are guilty or 'not guilty'. If you plead guilty, the court will pass a sentence and that ends the matter. If you plead not guilty, the law will treat you as innocent of the crime committed. It is only if the other side proves their case against you and convinces the court, that you will be found guilty. Please note that separately, there is a procedure for plea bargaining , where you can try and work out an acceptable punishment with the prosecutor or victim.
  • In cases where the police have conducted an investigation and filed a report, the government prosecutor will be the opposite side in your trial. They will try and prove that you were guilty of committing the crimes that the police have alleged against you. In cases where the police have not conducted an investigation, the victim and their lawyer will try and prove your guilt.
  • First the prosecution questions their witnesses and submit evidence or proof (which become 'exhibits'). You have a right to question the witnesses and the proof submitted by the prosecution – this is called cross-examination.
  • After this, the court will ask you some questions which you answer without taking any oath. Once you are questioned, it will ask you whether you want to being witnesses and submit proof. Once you have finished examining witnesses and submitted evidence, the court will hear arguments from both sides and pass a judgment.
  • There are some variations in the procedure based on the court before which the case is being conducted and based on the type of the crime you have been accused of.

With respect to trial procedures in a court, crimes are again of two types:

  • Warrant cases - Crimes which attract jail time of more than 2 years (including those which attract death penalty or jail for the rest of your life) are known as warrant cases.
  • Summons cases - Crimes which attract jail time of less than 2 years are known as summons cases.

Based on the court in which the trial happens, there are four different types of trial procedures:

  • Trial before a Sessions Court – This is generally the most elaborate procedure and is applicable to all crimes which have to be conducted in a Sessions Court. Usually very serious crimes such as murder, rape etc. have to be tried in a Sessions Court. To know if your case will be tried in a Sessions Court, please check here  which specifies which court will try a particular crime. For crimes under other laws i.e. laws other than the Indian Penal Code, the general rule is that if the crime attracts jail time of more than 7 years, it has to be tried in a Sessions Court.
  • Trial of warrant cases before a Magistrate – Trial of such cases is fairly elaborate and very similar to the trial procedure before a Sessions Court. Unlike in a Sessions Court, the prosecutor does not have to present its opening case before presenting the full evidence.
  • Trial of summon cases before a Magistrate – Trials of summons cases is less elaborate because the crimes are generally less serious. Unlike trial of warrant cases, the Magistrate does not have to frame formal charges – she only needs to explain the particulars of the crime to you.
  • Summary Trials – For some simple crimes, the Magistrate can decide to hold a summary trial. The procedure followed is the same as a summons case, but the Magistrate only needs to ensure that key facts and findings are recorded, so that the trial is completed quickly.
Plea Bargaining
From the point of view of an accused person
  • Plea bargaining is a negotiation between the victim, prosecution and police officer (when a police investigation has happened) and you where you plead guilty in order to work out some concessions from the prosecution or victim. This might involve paying compensation to the victim.
  • If you are a child under 18 years, you cannot make a plea-bargain.
  • Please note that once you have decided to go in for a plea-bargain, you cannot file an appeal against the judgment.

No, plea bargaining is allowed for certain kind of crimes only - crimes for which the punishment is less than 7 years. This cannot be adopted in crimes which attract the death penalty or life in jail. Similarly, crimes which affect the socio-economic condition of the country or crimes in which the victim is a woman or a child below 14 years of age are also excluded. If you have already been convicted of a crime, you cannot make a plea-bargain.

Step 1 - You can ask your lawyer to make an application any time during the trial. You will have to sign an affidavit in which you promise the court that you have taken this decision voluntarily after understanding the consequences.

Step 2 – The court will ask you questions privately in order to figure out if you have made the application voluntarily.

Step 3 – The court will issue a notice to all the parties to work out a solution which is acceptable to all parties.

Step 4 – After the parties have worked out an agreement, the court will record it. The court will then decide the amount of compensation which has to be paid to the victim. It will hear the parties on the jail time they have agreed upon and why.

Step 5 – Jail time:

  • The court may agree to no jail time – this is allowed in certain exceptional circumstances under the Code and another law .
  • If the crime attracts a minimum jail time, the court can agree to half the jail time in a plea-bargain.
  • If the crime does not have a minimum jail time, the court can agree to one-fourth of the jail time for that crime.

Step 6 – The Court will pass the final judgment. You cannot file an appeal against this.

Yes. You can decide to not go ahead with this process before the terms are finalized. If you choose to do so, the case will go back to trial. Anything that you said during the plea bargaining cannot be used against you during the trial.

  • Plea bargaining is a negotiation between the victim, prosecution and police officer (when a police investigation has happened) and you where you plead guilty in order to work out some concessions from the prosecution or victim. This might involve paying compensation to the victim.
  • If you are a child under 18 years, you cannot make a plea-bargain.
  • Please note that once you have decided to go in for a plea-bargain, you cannot file an appeal against the judgment.

No, plea bargaining is allowed for certain kind of crimes only - crimes for which the punishment is less than 7 years. This cannot be adopted in crimes which attract the death penalty or life in jail. Similarly, crimes which affect the socio-economic condition of the country or crimes in which the victim is a woman or a child below 14 years of age are also excluded. If you have already been convicted of a crime, you cannot make a plea-bargain.

Step 1 - You can ask your lawyer to make an application any time during the trial. You will have to sign an affidavit in which you promise the court that you have taken this decision voluntarily after understanding the consequences.

Step 2 – The court will ask you questions privately in order to figure out if you have made the application voluntarily.

Step 3 – The court will issue a notice to all the parties to work out a solution which is acceptable to all parties.

Step 4 – After the parties have worked out an agreement, the court will record it. The court will then decide the amount of compensation which has to be paid to the victim. It will hear the parties on the jail time they have agreed upon and why.

Step 5 – Jail time:

  • The court may agree to no jail time – this is allowed in certain exceptional circumstances under the Code and another law .
  • If the crime attracts a minimum jail time, the court can agree to half the jail time in a plea-bargain.
  • If the crime does not have a minimum jail time, the court can agree to one-fourth of the jail time for that crime.

Step 6 – The Court will pass the final judgment. You cannot file an appeal against this.

Yes. You can decide to not go ahead with this process before the terms are finalized. If you choose to do so, the case will go back to trial. Anything that you said during the plea bargaining cannot be used against you during the trial.

Types of Trials
From the point of view of an accused person

Certain types of crimes can only be tried in a Sessions Court. Once the Magistrate commits a case to a Sessions Court,  the Sessions Court takes over to conduct the actual trial.

Step 1 – Opening case for prosecution:  In such trials, the prosecution has to first open their case even before a charge is framed – they have to describe the charge before you and briefly list out the proof they have gathered against you.

Step 2 – Discharge of accused:  After hearing the prosecution, the court will allow you to make your argument. It will consider the arguments made and the nature of material collected. This is not a full-length inquiry. If the court thinks the case against you is baseless it will discharge you.

Step 3 – Charge framing:  Sessions Court will frame the charge against you and ask you if you plead guilty. If the Sessions Court finds that the crime is not that serious and that a Magistrate can also try the case, it can decide to transfer the case.

Step 4 – Prosecution evidence:  If you do not plead guilty, the Sessions Court will proceed to let the prosecution examine all its witnesses and submit any other proof. Your lawyer can cross-examine the prosecution witnesses.

Step 5 – Acquittal:  Sessions Court can at this stage decide to acquit you if it feels that there is not enough proof.

Step 6 – Defence evidence:  If you have not been acquitted, the Sessions Court can then let you and your lawyer examine witnesses and submit proof that you have gathered.

Step 7 – Final Arguments and Judgment:  After the prosecution and your lawyer have made the final arguments, the Sessions Court will decide if you are guilty or innocent.

Step 1 - In such trials, the Magistrate has to confirm that you have received a copy of the charge-sheet,  FIR and related documents.

Step 2 – Discharge of accused:  The Magistrate will decide if you can be discharged based on the police report, your examination and submissions of both parties.

Step 3 – Charge framing:  The Magistrate will frame the charge against you and ask you if you plead guilty.

Step 4 – Prosecution evidence:  If you do not plead guilty, the Magistrate will proceed to let the prosecution examine all its witnesses and submit any other proof. Your lawyer can cross-examine the prosecution witnesses.

Step 5 – Defence evidence:  The Magistrate will then let you and your lawyer examine witnesses and submit proof that you have gathered.

Step 6 – Judgment:  The Magistrate will decide if you are guilty or innocent.

Step 1 - When you are produced before the Magistrate at the beginning of the trial, the Magistrate has to explain the details of the crime you have been accused of and will ask you if you plead guilty or have a defence. The Magistrate may decide not to proceed with the case here after hearing you. If the Magistrate decides to proceed, she will frame 'notice' – this is similar to a charge. For petty cases, you can even plead guilty without actually appearing in court - the Magistrate will ask you to pay a fine.

Step 2 – Prosecution and defence evidence:  If you plead not guilty, the Magistrate will then let the prosecution and your lawyer examine witnesses and submit proof.

Step 3 – Judgment:  The Magistrate will decide if you are guilty or innocent.

This is a trial procedure applicable to certain kinds of simple crimes to ensure that the trial is conducted quickly. The procedure followed is the same as the summons case, except the Magistrate needs to ensure that only a few important details of the case are recorded.  Certain senior Magistrates have the choice to follow this procedure if they want. Some of the details which need to be recorded are the crime in the complaint or report and the crime which was proved, sentence passed by the Magistrate and the last date of the proceeding.

No, the Magistrate can only follow a summary trial for the following cases:

 

Crimes with less than 2 years imprisonment

Certain kinds of theft

Keeping or hiding stolen property less than Rs. 2000

Certain kinds of house-breaking

Insulting someone so as to cause public disturbance

Threatening someone

Helping someone commit any of these crimes

Trying to commit these crimes (and not succeeding)

Cattle trespass

 

If you are accused of a crime which is not in the Indian Penal Code, go through that law or check with your lawyer to find out whether a summary trial is possible. For instance, the Negotiable Instruments, Act 1881, under which cheque bouncing is a crime allows for summary trial.

Certain types of crimes can only be tried in a Sessions Court. Once the Magistrate commits a case to a Sessions Court,  the Sessions Court takes over to conduct the actual trial.

Step 1 – Opening case for prosecution:  In such trials, the prosecution has to first open their case even before a charge is framed – they have to describe the charge before you and briefly list out the proof they have gathered against you.

Step 2 – Discharge of accused:  After hearing the prosecution, the court will allow you to make your argument. It will consider the arguments made and the nature of material collected. This is not a full-length inquiry. If the court thinks the case against you is baseless it will discharge you.

Step 3 – Charge framing:  Sessions Court will frame the charge against you and ask you if you plead guilty. If the Sessions Court finds that the crime is not that serious and that a Magistrate can also try the case, it can decide to transfer the case.

Step 4 – Prosecution evidence:  If you do not plead guilty, the Sessions Court will proceed to let the prosecution examine all its witnesses and submit any other proof. Your lawyer can cross-examine the prosecution witnesses.

Step 5 – Acquittal:  Sessions Court can at this stage decide to acquit you if it feels that there is not enough proof.

Step 6 – Defence evidence:  If you have not been acquitted, the Sessions Court can then let you and your lawyer examine witnesses and submit proof that you have gathered.

Step 7 – Final Arguments and Judgment:  After the prosecution and your lawyer have made the final arguments, the Sessions Court will decide if you are guilty or innocent.

Step 1 - In such trials, the Magistrate has to confirm that you have received a copy of the charge-sheet,  FIR and related documents.

Step 2 – Discharge of accused:  The Magistrate will decide if you can be discharged based on the police report, your examination and submissions of both parties.

Step 3 – Charge framing:  The Magistrate will frame the charge against you and ask you if you plead guilty.

Step 4 – Prosecution evidence:  If you do not plead guilty, the Magistrate will proceed to let the prosecution examine all its witnesses and submit any other proof. Your lawyer can cross-examine the prosecution witnesses.

Step 5 – Defence evidence:  The Magistrate will then let you and your lawyer examine witnesses and submit proof that you have gathered.

Step 6 – Judgment:  The Magistrate will decide if you are guilty or innocent.

Step 1 - When you are produced before the Magistrate at the beginning of the trial, the Magistrate has to explain the details of the crime you have been accused of and will ask you if you plead guilty or have a defence. The Magistrate may decide not to proceed with the case here after hearing you. If the Magistrate decides to proceed, she will frame 'notice' – this is similar to a charge. For petty cases, you can even plead guilty without actually appearing in court - the Magistrate will ask you to pay a fine.

Step 2 – Prosecution and defence evidence:  If you plead not guilty, the Magistrate will then let the prosecution and your lawyer examine witnesses and submit proof.

Step 3 – Judgment:  The Magistrate will decide if you are guilty or innocent.

This is a trial procedure applicable to certain kinds of simple crimes to ensure that the trial is conducted quickly. The procedure followed is the same as the summons case, except the Magistrate needs to ensure that only a few important details of the case are recorded.  Certain senior Magistrates have the choice to follow this procedure if they want. Some of the details which need to be recorded are the crime in the complaint or report and the crime which was proved, sentence passed by the Magistrate and the last date of the proceeding.

No, the Magistrate can only follow a summary trial for the following cases:

 

Crimes with less than 2 years imprisonment

Certain kinds of theft

Keeping or hiding stolen property less than Rs. 2000

Certain kinds of house-breaking

Insulting someone so as to cause public disturbance

Threatening someone

Helping someone commit any of these crimes

Trying to commit these crimes (and not succeeding)

Cattle trespass

 

If you are accused of a crime which is not in the Indian Penal Code, go through that law or check with your lawyer to find out whether a summary trial is possible. For instance, the Negotiable Instruments, Act 1881, under which cheque bouncing is a crime allows for summary trial.

About Trials
From the point of view of an accused person

The starting point in a trial is usually the framing of charges. The court will frame the charge - this will tell you exactly which crimes you have been accused of. This is done so that you have the time to understand the material that is going to be used against you in the trial. If you have been accused of a particular crime in the charge, it means that the legal requirements for the charge have been satisfied. The charge will contain the following:

  • the legal provisions under which you have been charged;
  • any prior convictions - this may be used to award a higher punishment;
  • details of the time and place at which the crime was committed;
  • victims of the crime;
  • any property involved in the crime.

Yes, they can alter the charges at any time before the judge delivers the judgment. The judge has a duty to read out the charge and explain it every time a change is made. Depending on the type of changes made, the judge can sometimes decide to hold a new trial. When the judge changes the charges, your lawyer can recall witnesses and call any more witnesses if needed.

  • The general rule of trial proceedings is that any evidence or proof shown to the court must be done in the presence of the accused.
  • When the court records the statement of a witness, they have to read the statement as recorded back to the witness. This has to be done when you or your lawyer is around.
  • You can ask your lawyer to make an application to the court to allow you to not attend proceedings. The court may allow it, if it thinks that your presence is not necessary and as long as your lawyer is present.
  • If you disturb court proceedings, the court may stop you from attending. It may also not allow you to attend proceedings if you disturb the court proceedings.
  • The court can also allow for the trial to proceed, if the accused has escaped and is deliberately not appearing for the trial.

Yes, the court has the power to ask you questions at any point during the trial. The court has a duty to question you on the case generally after all the witnesses for the prosecution have been examined. The court has to make a memorandum or a record of the examination which will be read out to you. It has to be signed by the judge and you.  When you are examined under this section, you are not treated as a witness – your statement is not on oath and you can choose not to answer the questions of the judge. Please note that the judge can take into consideration your answers for this trial – it can also be used as evidence in another related trial.

For less serious crimes (in which the punishment is less than 2 years' jail time), the court need not examine you after the prosecution witnesses if it has allowed you to not appear in court.

Yes, you can make an application to be a witness in your trial.  However, if you do not do this, the court or the other parties cannot hold this against you. If you do so, your co-accused can cross-examine you.

The general rule is that a criminal trial will be held in open court – this is to ensure that judges are fair and objective in their conduct. However, rape trials will not be held in open court – the court will grant permission to the parties which can attend the trial. These are called 'in-camera' trials and must be conducted by woman judges as far as possible.

If for example, the witness is giving her evidence in some other language which neither you nor your lawyer can understand, then you can ask the court to arrange for an interpretation in a language that you can understand. In more difficult cases, it might be difficult to ensure that the accused has understood the evidence - for example, if the accused person has some speech or hearing impairments or is a foreigner and there is no interpreter. If at the end of such a trial, the accused person is found guilty, then the court has to send a copy of a report of the proceedings to the High Court. The High Court can then decide to pass any order after checking the report.

Yes, it is illegal for the prosecution to influence you in any manner to try and get information. However, the law does allow for certain situations in which the court can grant you a pardon – this will not be considered as influencing you.

  • If the court finds that an accused person might suffer from some mental illness,  it will get the opinion of a psychiatrist or clinical psychologist.
  • If the person is found to suffer from mental illness and the court thinks there is no case against the accused on the face of it, the court will discharge the accused. There might be conditions to this release such as providing security or admitting the accused in a residential facility for persons with mental illness.
  • If there is a possibility that the accused committed the crime, then the court will postpone the trial. The accused person can make an application for bail – the court may either grant bail or order that the accused stay in a place with regular psychiatric treatment.
  • If the court finds at the end of the trial that the accused person did commit the act, then the court can acquit her if it finds that she was not capable of understanding what she was doing because of her mental illness.

Generally, you cannot be tried twice for the same crime. However, there are some exceptions to this –

  • you can be tried for a separate charge; or
  • you can be tried again if your act has resulted in new consequences – for example, if the person you hurt dies after the first trial, because of an internal injury which was not previously detected; or
  • your trial had not happened in the correct court.

The starting point in a trial is usually the framing of charges. The court will frame the charge - this will tell you exactly which crimes you have been accused of. This is done so that you have the time to understand the material that is going to be used against you in the trial. If you have been accused of a particular crime in the charge, it means that the legal requirements for the charge have been satisfied. The charge will contain the following:

  • the legal provisions under which you have been charged;
  • any prior convictions - this may be used to award a higher punishment;
  • details of the time and place at which the crime was committed;
  • victims of the crime;
  • any property involved in the crime.

Yes, they can alter the charges at any time before the judge delivers the judgment. The judge has a duty to read out the charge and explain it every time a change is made. Depending on the type of changes made, the judge can sometimes decide to hold a new trial. When the judge changes the charges, your lawyer can recall witnesses and call any more witnesses if needed.

  • The general rule of trial proceedings is that any evidence or proof shown to the court must be done in the presence of the accused.
  • When the court records the statement of a witness, they have to read the statement as recorded back to the witness. This has to be done when you or your lawyer is around.
  • You can ask your lawyer to make an application to the court to allow you to not attend proceedings. The court may allow it, if it thinks that your presence is not necessary and as long as your lawyer is present.
  • If you disturb court proceedings, the court may stop you from attending. It may also not allow you to attend proceedings if you disturb the court proceedings.
  • The court can also allow for the trial to proceed, if the accused has escaped and is deliberately not appearing for the trial.

Yes, the court has the power to ask you questions at any point during the trial. The court has a duty to question you on the case generally after all the witnesses for the prosecution have been examined. The court has to make a memorandum or a record of the examination which will be read out to you. It has to be signed by the judge and you.  When you are examined under this section, you are not treated as a witness – your statement is not on oath and you can choose not to answer the questions of the judge. Please note that the judge can take into consideration your answers for this trial – it can also be used as evidence in another related trial.

For less serious crimes (in which the punishment is less than 2 years' jail time), the court need not examine you after the prosecution witnesses if it has allowed you to not appear in court.

Yes, you can make an application to be a witness in your trial.  However, if you do not do this, the court or the other parties cannot hold this against you. If you do so, your co-accused can cross-examine you.

The general rule is that a criminal trial will be held in open court – this is to ensure that judges are fair and objective in their conduct. However, rape trials will not be held in open court – the court will grant permission to the parties which can attend the trial. These are called 'in-camera' trials and must be conducted by woman judges as far as possible.

If for example, the witness is giving her evidence in some other language which neither you nor your lawyer can understand, then you can ask the court to arrange for an interpretation in a language that you can understand. In more difficult cases, it might be difficult to ensure that the accused has understood the evidence - for example, if the accused person has some speech or hearing impairments or is a foreigner and there is no interpreter. If at the end of such a trial, the accused person is found guilty, then the court has to send a copy of a report of the proceedings to the High Court. The High Court can then decide to pass any order after checking the report.

Yes, it is illegal for the prosecution to influence you in any manner to try and get information. However, the law does allow for certain situations in which the court can grant you a pardon – this will not be considered as influencing you.

  • If the court finds that an accused person might suffer from some mental illness,  it will get the opinion of a psychiatrist or clinical psychologist.
  • If the person is found to suffer from mental illness and the court thinks there is no case against the accused on the face of it, the court will discharge the accused. There might be conditions to this release such as providing security or admitting the accused in a residential facility for persons with mental illness.
  • If there is a possibility that the accused committed the crime, then the court will postpone the trial. The accused person can make an application for bail – the court may either grant bail or order that the accused stay in a place with regular psychiatric treatment.
  • If the court finds at the end of the trial that the accused person did commit the act, then the court can acquit her if it finds that she was not capable of understanding what she was doing because of her mental illness.

Generally, you cannot be tried twice for the same crime. However, there are some exceptions to this –

  • you can be tried for a separate charge; or
  • you can be tried again if your act has resulted in new consequences – for example, if the person you hurt dies after the first trial, because of an internal injury which was not previously detected; or
  • your trial had not happened in the correct court.