Penal Provision in a Law/ Legislation
All civil legislations will have a small component of it that makes or creates an offence for any violation under that particular law. That component is Penal Provision. Therefore the criminal justice system is a very powerful process in India as every law in the country says that in absence
E.g. Labor legislation for construction workers or bonded labor.
Laws – Bonded labor regulations abolition act | Unorganized Sectors act |
2 Legislations for addressing offence – Penal Code | Criminal Procedure Code (CrPC)
Civil Matters with CPC | Criminal matters with Penal Code
IPC – Document that lists more than 500 offenses | Treats many acts as a crime | Penal code has definitions of the crime.
Process After a Crime is Committed
FIR – First Information Report – Not an exhaustive document. It just sets the law into motion
Prima Facie – Left on the court or investigative agency to find out if the crime is committed or not.
Law starts into motion with FIR | Investigation starts and there are two tracks | One track will be to get statements from the witness, privy to the offence etc | Second track to nab the person accused on basis of the materials available | the person nabbed is called the accused and not convict |
The rights of an Accused after arrest
- Right to be produced before a judge within 24 hours (constitutionally guaranteed right)
- After the person is produced before the court, the court will either send the person to police custody or judicial custody
- Police Custody – When investigative agency appeals to the court to allow the police to investigate the person, thus police custody. It is granted by the court with some amount of moderation. Like 3, 5 or a 7 days. Torture etc tend to take place for investigation
- Judicial Custody – Depends on judge’s discretion generally there is diff violence but not investigative violence.
Right to Bail – The accused has right to bail right after his arrest. While giving bail, the court can impose certain terms.
- Term of assurity – There has to be two people supporting the accused liable to penalty if the accused runs away. E.g. bail bonds
- The court can dismiss the bail application.
- Principles of granting and not granting – If the investigation is incomplete | Accused may run away and would be difficult to procure him | Hampering the investigation by means of threatening, etc.
- Discretion of the judge based on various principles and accounts.
Bail can be rejected when they think
- You can run away
- You will tamper the evidence or intimidation
Bailable offense – e.g. In an accident, an FIR is filed by the police then the person is released as arrests aren’t done for all accidents. Thus, bailable offence.
Non Bailable Offense – One where release can take place only when you obtain bail from the court.
This process happens generally at the trial level.
Other rights of Accused
Right against self incrimination
Note: There is a lot of media information today that only talks about the police’s side. Eg. This is what the accused has said during the interrogation. This is not reliable as it tries to build up public opinion.
Any confession made to the police by accused is not considered as evidence and thus cannot be used as one, unless it is for a limited purpose like recovery of articles. This prohibition is law as per the Evidence Act (giving exception to recovery articles).
E.g. Accused talks about his murder weapon, giving information about its whereabouts. But that too needs to be proved.
Judicial Confession – An accused confronts to the crime in front of the judge. Under judicial guidelines the accused should tell the judge about the crime committed.
Eg. Sheena Bora case – Driver made a judicial confession.