“Shri Vithal Namah:”
WARNING a) NOT TO BE Use and Dissemination (in any form, print, verbal, action or otherwise); the present article, FOR COMMERCIAL USE OR ANY PROFIT, OR DEISRED TO BE EXPECTED PROFIT OR COMMERCIAL UTILIZATION, WITHOUT THE PRIOR WRITTEN APPROVAL form the author (Mr. Naveen Kumar). b) The exclusive and original rights of use in any manner whatsoever are subsisting with “The Law Office” more specifically the author Mr. Naveen Kumar, only.
CRIMINAL TRIAL IN INDIA Right move at the right time is the pivot of success in criminal proceedings, but for making a right move it is necessary to understand the criminal justice system (CJS). TYPE OF CRIMINAL TRIAL Under the categorized procedures, trials.
Cr.PC, criminal trials have been into three divisions having different called warrant, summons and summary
1. Warrant Cases (WC): A warrant case relates to offenses punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
Instituted on Police Report (Upon Charge Sheet)
Page
1
o Two types of procedure follow in WC by Magistrate –
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
1|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
“Shri Vithal Namah:”
Instituted on Prosecution).
Private
Complaint
(Examination
of
2. Summon Cases (SC): Relating to the offenses punishable with imprisonment not exceeding two years. In respect of summons cases, there is no need to frame a charge. The court gives the substance of the accusation, which is called “notice”, to the accused when the person appears in pursuance to the summons. 3. Summary Trial: Relating to the offenses punishable with a fine or imprisonment for a term not exceeding six months. In a summary trial, no sentence of imprisonment for a term exceeding three months can be passed in any conviction. Information of offense to Police Magistrate Information to Police for Cognizable Offences ( cognizable office means where police can arrest the person without warrant) police are bound to registered the FIR u/s 154 Cr.P.C In case of non cognizable offices ( u/s 155 Cr.P.C) / incidences police registers the information but advice the complaint to approach the court / other legal mechanism for remedy.
Every information relating to the commission of Cognizable office , if given orally to an officer in charge of a Police Station shall:-
Page
Reduced to writing. Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
2
Section 154 of Cr.P.C, binding on police to
2|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
“Shri Vithal Namah:”
Read over to the informant The substance thereof shall be entered in a DD ( daily diary) Provide a free copy of said record information to the informant What to do if Officer In charge of the Station Refused to Record the Information?
Police
Any person, aggrieved by a refusal on the part of an Officer in charge of a Police Station to record the information u/s 154 of Cr. P.C, may send the substance of such information, in writing and by post to the Superintendent of Police Concerned, and also approaches to Magistrate u/s 156 (3) for directing the Police to lodge an FIR. Complaint to Magistrate u/s 200 Cr.PC
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
3|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
Page
Investigation by Police After the registration of FIR, police investigates the case, investigation includes, collecting the evidence, examination of various persons / accused and recording of statement of the witness / accused, search and seizure, and, and discovery and arrest of the suspected offender it ends with the formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing of a charge sheet under section 173 of Cr.P.C
3
Upon receiving the complaint the Magistrate Examine the Prosecution ( Pre Summoning Evidence), and if found any offense is made out, order for investigation and further investigation into Police, after investigation Police file the Status Report before the Magistrate.
“Shri Vithal Namah:”
Disclose Statement of Accused the Statement (answers and explanations) given by the accused is entirely for the benefit of accused and the accused only. The statement cannot be used by the Court against him or her nor is the prosecution permitted to use to fill up any gap or lacuna left in the prosecution evidence. (The Indian Evidence Act) Bail Following authorities are authorized to grant bail under Cr.P.C
Charge Sheet The primary object of framing a charge is to give notice of the essential facts which the prosecution proposes to establish to bring home charge to the accused so that he will be able to defend and may not be prejudiced. The charge sheet is the brief summary of how an offense had been committed? What was the role of each person who was involved in the crime and the sections under which the investigating officer had charged all the accused. The charge sheet also contains the names of the person who were investigated but could not be charged due to what of evidence. Filing of the charge sheet generally means that the investigation in the case is over and now the court has to consider the evidence collected by the investigating agency. It is to be noted, that if during the course of the trial, some new facts come to the light, the agency may file additional / supplementary charge sheets. Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
4|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
4
Police ( In case of Bailable offenses) Court ( In Bailable and Non Bailable offense)
Page
“Shri Vithal Namah:”
At the stage of framing a charge, the court has to be satisfied only prima facie about the existence of sufficient grounds for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient for bringing home guilt of the accused Column no 11 for charge-sheeted.
Particulars
of
accused
persons
Column no 12 for Particulars of accused persons – Not charge sheeted
Cognizance of Offense by Magistrate
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
5|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
Page
Framing of Charge / Argument on Charge This is the beginning of a trial thecourt looks into the evidence collected by the investigating agency and applies its mind so as to what are the charges under which an accused has to be booked. For example, the police has filed a charge sheet accusing a person of murder under section 324, but
5
Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offense. Cognizance, therefore, takes place at a point when a magistrate first takes judicial notice of an offense. This is the position whether the magistrate takes cognizance of an offense on a complaint, or to a police report, or upon information of a person other than a police officer.
“Shri Vithal Namah:”
the court deems it proper to charge the person for section 323. Pleads guilty At this stage, if an accused pleads guilty then the court will apply its judicial mind and decide the punishment accordingly. And if the accused pleads not guilty, he is informed the charges under which he would be required to face the trial.
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
6|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
Page
Recording of the Prosecution Evidence After the charge is framed, the prosecution has been asked to examine its witnesses before the court. Examination-in-chiefThe statement of witnesses is on oath. This is called examination-in-chief (The process of recording the statement of PWs.) Cross Examination Interrogation of a witness called by one's opponent. Exhibit- The evidence which is brought before the court and which the court considers are called “Exhibit”. Statement of accused The court has powers to examine the accused at any stage of inquiry or trial for the purpose of eliciting any explanation against incriminating circumstances appearing before it. However, it is mandatory for the court to question the accused after examining the evidence of the prosecution if it incriminates the accused. This examination is without oath and before the accused enters a defense. The purpose of this examination is to give the accused a reasonable opportunity to explain incriminating facts and circumstances in the case.
6
Discharge of Accused On the other hand, if the court finds that no offense against an accused is made out; the accused is discharged from the case.
“Shri Vithal Namah:�
Evidence of Defense Accused also asked to lead his evidence. The accused person is also a competent witness under the law. The accused may apply for the issue of process for compelling attendance of any witness or the production of any document or thing. The witnesses produced by him are cross-examined by the prosecution. The accused person is entitled to present evidence in case he so desires after recording of his statement. The witnesses produced by him are crossexamined by the prosecution. Final Argument Both the side argues to establish their case. Judgment After conclusion of arguments by the prosecutor and defense, the judge pronounces his judgment in the trial. Acquittal or Conviction There are two possibilities Acquittal of accused or conviction of accused.
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
7|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
Page
437A has been inserted in the Cr. P.C. by amendment act, 2008 (Act No 5 of 2009). It runs as under: "437A. (1) Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute
7
In the case of acquittal the court release the person, after couple of judgments, in the case of acquittal accused required to admit on Bail under Section 437A of Crpc, which says:
“Shri Vithal Namah:�
bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months. (2) If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.''
In case of Conviction Arguments on sentence Once a person is convicted of an offence, both the sides present their arguments on what punishment should be awarded to an accused. Appeal and Revision
Page
8
The accused may file an appeal or revision against any final order.
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
8|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
“Shri Vithal Namah:”
ADVOCATE ~ CONSULTANT ~ AUTHOR ~ FACULTY
Naveen Kumar Shelar LL.B, M.B.A, M.A, R.T.M, DIP’ MKET Advocate & Founder – The Law Office “TLO” Secretary General – Nayaya A Voice for Justice “Helping the Helpless” Member India – Trust law Connect U.K, “Global Pro Bono Service” Author – Academic and Professional Legal books, & Management Articles 10002, INDIA
Professional Background Entrepreneurial by nature and able to see the „bigger picture‟, utilizes skills from an extensive background in well-known multi nationals, within legal Interpretations, Risk Analysis, General Management, Innovation and Change Management. In excess of 14 years hands on experience gained from within the IT, ITES, Manufacturing, International Schools, Ecomers, food chains, Education, leisure, and travel, with specific skills in Contract Management, Litigations, Setting up Business Units in India and shut down of business units formalities, Government Approvals, Process and Procedure Establishments, Statutory Compliances, Risk Analysis, joint ventures. Advocate & Legal Consultant: Background includes in-house and law firm experience counseling clients on a broad range of complex legal, business, and strategic issues Author and Faculty: He produced some magnificent writing in law, management and technology and more than 60 Articles featured on many websites, and has been awarded Expert Author certificate from ezinearticles.com 2007. He is the author of “Commentary on New Land Acquisition Act, 2013 and Analysis of Indian Contract Act. He loves to interact with law student and visiting faculty in many universities, and law conferences and talks.
Page
9
Practice Areas: Consulting & Execution: Social entrepreneur: He has firm believe access to justice for all, and to extended this belief he established an Contract laws (Indian & Overseas) Mergers and acquisitions (due diligence) NGO “Nayaya A Voice For and managed by voluntarily who are advocates and Ret. judges Corporate & Commercial LawsJustice” which run Construction Management ( end to end planning, strategy, execution) to Real helpestate the &poor litigants, and members of National and International organizations, Societies, Trust, Infrastructure law Technology improvements (analysis, and strategy) Institutions, etc. to ensure that nobody is deprived of an opportunity to seek justice merely for want of funds Labour & Industrial Law Establishing Business In India( end to end planning, strategy, execution) or Intellectual Property & Cyber Law Strategic Alliance and Risk Analysis lack of knowledge. Competition/Antitrust Law Policies, Procedures and SOPs Arbitration and Conciliation Banking, Financing and Loan Dispute Resolution Government Approvals and Clearance Family Law Gap Management Criminal & Civil Law Legal Researches
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
9|Page
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in
“Shri Vithal Namah:”
EXPERT - Litigations - Legal Research - Drafting and Review of Contracts - Strategic Alliance and Risk and Gap Analysis - Establishing and Shut Down Business Units in India - Policies, Procedures and SOP for each operational elements
EXPERIENCE WITH ORGANIZATIONS - American Embassy School Chanakya Puri New Delhi Officer head a tem of 60 People comprise 5 Department - Lime Wire LLC (Gurgaon, Noida) - Legal and Administration Establish Indian Operations - Toyota Kilosker Motors Maneser Haryana Offer head a team of 40 people comprise of 4 departments
MEMBERSHIP & PARTNER - Trust law connect - Member of Delhi Bar Council - Associate Member Indian Institute of International Law, New Delhi
ASSOCIATIONS Law Firm - Gupta & Associates (Ret. ADJ Delhi) - Mehta & Mehta Associates - A.D Associates (Singapore) - Mittal & Co Technology Partners - Feather labs - Sujoy Mukher jee ( 17 years exp IT) Charted Accountant - Sikka & Company - Rohit Gupta & Company
Blog: www.knowledgecrust.blogsopt.com LinkedIn: www.linkedin.com/in/thelawoffice Publication: http://www.articlesbase.com/authors/naveen-kumar-shelar/53386 http://www.scribd.com/naveen_kumar_134
HONORS AND AWARDS Star Performer Award for Outstanding work, 2007 Expert Author certificate from ezinearticles.com 2007 Star Performer Award for Outstanding work, 2008
Books: Commentary on New Land Acquisition Act, 2013 Analysis of Indian Contract Act
RESEARCH - OPNION Law and cultural aspect in India on LGBT MOST POPULAR ARTICLES Manager‟s Behavior and Productivity
TESTIMONIAL
Page
10
“If you are looking for a one man army that can resolve all your facilities, administration and government department related problems than Naveen is the answer. Building facilities from scratch, working with contractors, getting government clearance, searching for new properties, arranging transport, working with telecom vendors, working with Department of telecommunications (DOT) Naveen has done it all. Additionally he very aware of his surroundings and ready to learn new things” Jishnu Kinwar, Director IT-Operations, Lime Labs LLC
Office: 4214 A, No 1, Ansari Road, Darya Ganj, New Delhi- 110002.
10 | P a g e
www.thelawoffice.co.in | info@thelawoffice.co.in | +91-85.86.97.26.36 | replyshelar@yahoo.com Member of Trust Law Connect, www.trust.org | CSR- Nayaya a Voice for Justice, www.nayaya.co.in