Generally, most citizens of the country do not have much knowledge about the Pre-trial proceedings of a criminal case or in a criminal complaint. It is a basic understanding that pre-trial proceedings include all the stages, starting from the time the person gives information as to the commission of any offence to the police station, followed by the investigation which follows the invitation, and finally comes the filing of charge sheet before the court of law for taking action based on the information. A complainant merely gives information to the police officer. The information regarding the commission of an offence is nothing but a statement of criminal activity brought to the notice of a police officer. Whereas a complaint is something which is made before a magistrate. The Pre-trial proceedings are equally important as that of a criminal trial in the criminal case. This Blog clearly explains the pre-trial proceedings in a criminal complaint or a criminal case.
COMMISSION OF OFFENCES
If any person is aggrieved by any offence being committed, he/she can give information about the commission of such offence to the local police station within whose jurisdiction the offence was said to be committed. The investigation procedure shall not be the same for all the offences and will be based on the nature of the offence. Broadly, offences can be divided into two types.
i) Cognizable offence and
ii) non-cognizable offence.
Cognizable offences are those offences which are punished with imprisonment for a term of more than three years. For e.g.: Murder, Theft, Robbery etc. It is not necessary that someone should notify the police about the commission of the offence. The police can start the investigation on its own motion and are vested with the power to arrest any suspected person without a warrant from the magistrate.
non-cognizable offences are those offences which are punished with imprisonment for a term of less than three years. For e.g.: offences of private nature like offences relating to marriage and offences against the public tranquillity. The important difference that arises at this juncture is that the police officer cannot investigate unless and until the concerned magistrate orders for the investigation of such offence. Accordingly, the police officer is not vested with the power to arrest any suspected person without a warrant from the concerned magistrate.
- On receiving information, if the police find the offence committed is a cognizable offence then the police can file an FIR (First Information Report) under Section.154 of the Criminal Procedure Code (CrPC), against the person who it suspects to have committed the offence and investigate the same.
- Under Sec.154 of the Criminal Procedure Code (CrPC), if a person gives any information relating to the commission of a cognizable offence to the police officer or officer in the charge of the police station within their jurisdiction, every such information has to be produced in writing by his own or with the help of the police officers and also the petition has to be signed by the person who is giving the information. After receiving the information, a copy of the information shall be given free of cost to the person who has given that information.
- In the landmark case of Lalitha Kumari vs Government of Uttar Pradesh (2014) the court upheld the mandatory registration of FIR in the case of commission of the cognizable offence. On the contrary, if the offence committed by the person is a non-cognizable offence then the police officer does not have the power to take any action against the person without the order of the court. Only upon receiving the court order from the concerned Magistrate can they investigate the case, however, they do not have any right to arrest the person who is alleged to have committed the non-cognizable offence without the warrant issued by the Magistrate.
- Under Sec.155 of the Criminal Procedure Code (CrPC), if a person gives any information relating to the commission of a non-cognizable offence to the police officer or officer in the charge of the police station within their jurisdiction, he shall enter the substance of the information in a book that has to be maintained by a police officer in the police station and refer the person who is giving the information to the Magistrate within the jurisdiction. No police officer shall have the power to try or to investigate a non- cognizable case without the order of a Magistrate. After receiving the order from the concerned magistrate, the police officer can exercise the powers in respect of the investigation of the case, but he cannot arrest the person without a warrant. However, in a case where a person commits two or more offences at the same time where one offence is a cognizable offence, then the entire case shall be considered to be a cognizable case, notwithstanding that the other offences are non- cognizable.
CONCEPT OF ZERO FIR
In a situation where the cognizable offence was committed in one jurisdiction wherein, there are no proper investigating officers or police station, then the police officer in the neighbouring jurisdiction can file an FIR against the person who committed the cognizable offence. In the case of Kirti Vashist vs State and Ors, the court held that though the cognizable offence is committed in one jurisdiction, there is no bar on the other jurisdiction police officer to file an FIR. This type of FIR is termed as “Zero FIR”
REFUSAL TO FILE FIR BY POLICE
In case, if the police refuse to file FIR against the accused of committing the cognizable offence, then the remedy available shall be approaching the higher authorities in the police department i.e., either Deputy Superintendent of Police or Superintendent of Police under Section.154(3) of the Criminal Procedure Code (CrPC) who will file the FIR and initiate an investigation on the commission of an offence.
COMPLAINT TO MAGISTRATE
- If the higher authorities of the police department also fail to comply with their duty of registering the FIR, taking action and conducting the investigation in a fair manner against the person who committed the cognizable offence, what would be the remedy available to the aggrieved person?
- The aggrieved person can file a direct complaint to the local magistrate within whose jurisdiction the offense was committed under Section.156(3) of the Criminal Procedure Code (CrPC) regarding the commission of the cognizable offence stating that there was neither proper investigation by the local police nor by the higher authorities of the police.
- Any Magistrate empowered under section 190 of the Criminal Procedure Code (CrPC) may order for the investigation of the case and submission of the report.
- The magistrate can further direct the local police to register the FIR against the accused and investigate the offence and submit a detailed report about the commission of the offence. Once the FIR has been registered against the accused person, the police will then start to investigate the commission of the offence.
Broadly, the investigation is classified into three types. They are:
(i) Initial Investigation or General Investigation
Initial investigation means the investigation conducted by the police officer between the filing of an FIR based on the information given by the aggrieved person about the commission of the offence to the filing of charge sheet against the accused before the concerned magistrate. It is also called a general investigation conducted by the police officer for every case. Pre-trial proceedings
(ii) Further Investigation
(Sec.173(8) of CrPC): Even after the filing of a charge sheet by the police officer, if the police officer considers that there is a need for further investigation on the case. He can further investigate and collect evidence on the same. All the collected evidence can be produced before the magistrate under Sec.173(8) of the Criminal Procedure Code (CrPC).
(iii) Fresh Investigation or De novo Investigation
De novo Investigation is nothing but if High Court finds that there is contrary in the earlier investigation, the High Court has inherent powers under Sec.482 of the Criminal Procedure Code (CrPC) to set aside the earlier investigation conducted by the police officer and order for the Re-investigation on the complaint or case. This is also called the Fresh investigation.
It is also the duty of the aggrieved person or his/her counsel to follow the investigation of police otherwise they may either delay the process of the investigation or mislead the commission of the offence. After the thorough investigation and from the statements received by the aggrieved person, the police will have to submit a detailed report about the commission of the offence before the concerned magistrate. On receiving the detailed report, the magistrate can either accept or reject the complaint. If the magistrate accepts the complaint, then he is said to have taken cognizance against the charges and will serve summons against the accused to appear before the court of law. On the other hand, he can reject the complaint if the investigation does not prove the commission of any cognizable offence. If he rejects the complaint, we can go for an appeal to the superior courts. Also if the magistrate thinks that no proper investigation was conducted, he has the power to change the investigating officer and also has the power to use the evidence or material given by the complainant to improve the investigation of the case. Finally, after filing of the charge sheet, the magistrate takes cognizance against the charges which were mentioned in the charge sheet unless and until there were unproven charges. The term ‘cognizance’ is nothing but “taking Judicial Notice and proceeding further”. Until the filing of a charge sheet it is called pre-trial proceedings after which the trial begins.
RECENT UPDATES Pre-trial proceedings
After the case of Priyanka Srivastava and Ors vs State of Uttar Pradesh (2015), the court held that all the Sec.156(3) petition under the Criminal Procedure Code (CrPC) must be filed along with an affidavit. Sec.156(3) petition i.e.) “the petition filed by the aggrieved person directly before the Magistrate for directing the police to conduct a proper investigation and file an FIR against the accused”.
(i) The Code of Criminal Procedure- 1973.
BY- Ramprasanth S & Roshini G | The Tamilnadu Dr Ambedkar Law University