PRE-TRIAL PROCEDURE AND

INQUIRY
I. INTRODUCTION

Investigation of a crime is what precedes trial. On receiving information

about a cognisable offence police register FIR and commence investigation. They
collect evidence, arrest the accused and produce him before Magistrate and
secure orders for police custody or judicial remand. On completion of
investigation, if the police feel that no prima facie case is made out final report will
be filled before court. If the investigating agency feels that a prima facie case is
made out, it will file a charge sheet before court. The Magistrate has to pass
necessary orders on final reports and charge sheets. Depending on the order of
Magistrate the case will be either dropped or put forwarded for charges and trial.

II. DEFINITION, SCOPE AND NATURE OF PRE-TRIAL

PROCEDURE AND INQUIRY

A criminal case consists of a number of phases, from the initial arrest to

sentencing and possible appeal. The following is an overview of what to expect
during the pre-trial phase of a criminal case. They are

Investigation

Arrest

Booking

Bail

Arraignment

Plea Bargaining

Preliminary Hearing

Cr.P.C. is a comprehensive and exhaustive procedural law for conducting a

criminal trial in India, including the manner for collection of evidence, examination
of witnesses, interrogation of accused, arrests, safeguards and procedure to be
adopted by Police and Courts, bail, process of criminal trial, method of conviction,
and the rights of the accused for a fair trial. The procedure for a criminal trial in
India, is primarily, except as otherwise provided, governed by The Code of
Criminal Procedure, 1973 (Cr.P.C.).

Ironically, Code has not defined the term “Arrest”1. Every deprivation of
liberty or physical restraint is not arrest. Only the deprivation of liberty by legal
authority or at least by apparent legal authority, in a professionally competent and
adept manner amounts to arrest. Thus, we can say arrest means ‘apprehension of
a person by legal authority resulting in deprivation of his liberty’.

An arrest consists of taking into custody of another person under authority

empowered by law for the purpose of holding or detaining him to answer a criminal
charge and preventing the commission of a criminal offence. However, a person
against whom no accusation of crime has been made may be arrested /detained
under a statute for certain purposes like removal in safe custody from one place to
another, for example – removal of a minor girl from a brothel. One thing to be noted
that ‘custody’ and ‘arrest’ don’t have same meaning. Taking of a person into
judicial custody is followed after the arrest of the person by Magistrate on
appearance or surrender. In every arrest there is custody but not vice versa. Thus,
mere taking into custody of a person an authority empowered to arrest may not
necessarily amount to arrest. This code propose two types of arrests: (i) arrest
made in pursuance of a warrant issued by a magistrate (ii) arrest made without
such a warrant but made in accidence with some legal provision permitting such
arrest.

It is a report of information that reaches the police first in point of time and
that is why it is called the First Information Report. It is generally a complaint
lodged with the police by the victim of a cognizable offence or by someone on his/
her behalf. Anyone can report the commission of a cognizable offence either orally

1 As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of
the power to deprive a person of his or her liberty; the taking or keeping of a person in custody by
legal authority, especially, in response to a criminal charge.”

or in writing to the police. The statement made by a witness who initiated the
proceedings when reduced to writing is the F.I.R. Genuineness or credibility of the
information is not a condition precedent for registration of the case.9 Information
lodged with Police disclosing cognizable offence, the officer-in-charge of a Police
station is statutorily obliged to register a case.10 F.I.R. is the information which is
given first in point of time.

The following two conditions are to be satisfied before information could be

treated as F.I.R.

It must be an information

Secondly, it must relate to a cognizable offence on the face of it and

not merely in the light of the subsequent events.

The concept of bail, which is a basic part of the Indian criminal jurisprudence
and it is well recognised principle among all the judicial systems of the world. Bail,
in law, means procurement of release from prison of a person awaiting trial or an
appeal, by the deposit of security to ensure his submission at the required time to
legal authority.

Where any person has a reason to believe that he may be arrested on

accusation of having committed a non-bailable offence, he may apply to the High
Court or the Court of Session for a direction under this section that in the event of
such arrest he shall be released on bail and the court shall provide him anticipatory
bail after taking into consideration the following factors, namely-

the nature and gravity of the accusation.

the antecedents of the applicant including the fact as to whether he

has previously undergone imprisonment on conviction by a Court in
respect of any cognizable offence

the possibility of the applicant to flee from justice.

where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested, either reject the
application forthwith or issue an interim order for the grant of
anticipatory bail.

 The High Court or the court of the session may include such conditions in
the light of the facts of the particular case, including:

a condition that the person shall make himself available for

interrogation by the police officer as and when required;

a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade him from disclosing such facts
to the court or to any police officer;

a condition that the person shall not leave India without the previous
permission of the court.

III.RELEVANT PROVISIONS OF LAW

Arrest can be made by police officer, Magistrate or any private person, like
you or me can also arrest a person but that can made only in accordance with
some legal provision permitting such arrest. The code exempts the members of
Armed forces from being arrested for anything done by them in discharge of their
official duties except after obtaining the consent of the government (Sec. 45).

Any private individual may arrest a person only when the person a
proclaimed offender and the person commits a non bailable offence and
cognizable offences in his presence (sec. 43). Any magistrate (whether Executive
or judicial) may arrest a person without a warrant (sec. 44). Under section 41,
Arrest by police officer can be made without warrant only in cognizable offences
(sec.2(c)) and with warrant in non- cognizable offence (sec 2 (l)). Cognizable
offences are of more serious nature as compare to non cognizable offences i.e.
Murder, kidnapping, theft, etc.

Sec. 46 describes the mode in which arrests are to be made (whether with
or without warrant). In making an arrest the police officer /other person making the
same actually touches or confines the body of the person to be arrested unless
there be a submission to custody by words or action. 

 The object of Section 154, Code of Criminal Procedure, 1973 is to obtain

early information of alleged criminal activity, to record the circumstances before
there is time for them to be embellished or forgotten.

FIR is not substantive piece of evidence. Therefore, even if the written report
filed has not been duly proved the prosecution case will not fall on that ground
alone and the court has to consider the substantive evidence which has been
adduced by prosecution, it can be used to corroborate or contradict its maker. It
cannot be used to corroborate another person. Thus it is not a substantive piece of
evidence. The object ofF.I.R. is to obtain early information of the alleged criminal
activity to record the circumstances before there is time for them to be forgotten or
embellished.

Section 154(1) Cr.P.C. is as follows:

“Every information relating to the commission of a cognizable offence, if

given orally to an officer-in-charge of a police station, shall be reduced to
writing by him or under his direction, and be read over to the informant; and
every such information, whether given in writing or reduced to writing as
aforesaid, shall be signed by the person giving it, and the substance thereof
shall be entered in a book to be kept by such officer in such form as the
State Government may prescribe in this behalf.”

The language of sub-section (3) of Section 154 of the Code of Criminal

Procedure, 1973 is only directory. There is no penalty prescribed for non-
observance of this sub-section. This provision only enables a party to seek
redress. Failure to adopt the course does not incur any penalty. The section 311 of
CrPC confers wide discretionary power on Courts to summon any person as a
witness or to examine any person who is present though not summoned or recall
and reexamine any person already examined, when it thinks it expedient to do so
in the interest of justice.

 The Criminal Procedure Code, 1973, does not define bail, although the terms
bailable offence and non-bailable offence have been defined in section 2(a) Cr.P.C.
as follows: " Bailable offence means an offence which is shown as bailable in the
First Schedule or which is made bailable by any other law for the time being
enforce, and non-bailable offence means any other offence". Further, ss. 436 to
450 set out the provisions for the grant of bail and bonds in criminal cases. The
amount of security that is to be paid by the accused to secure his release has not
been mentioned in the Cr.P.C. Thus, it is the discretion of the court to put a
monetary cap on the bond.

According to Section 439(1) of the Code of Criminal Procedure, a High Court

or Court of Session may direct,—

(a) That any person accused of an offence and in custody be released on

bail, and if the offence is of the nature specified in sub-section (3) of
Section 437, may impose any condition which it considers necessary for
the purposes mentioned in that sub-section;

b) That any condition imposed by a Magistrate when releasing any person

on bail be set aside or modified.

The grounds for cancellation of bail under Ss. 437(5) and 439(2) are identical,
namely, bail granted under S.437(1) or (2) or s.439(1) can be cancelled where the
accused (1) misuses his liberty by indulging in similar criminal activity, (2) interferes
with the course of investigation, (3) attempts to tamper with evidence of witnesses,
(4) threatens witnesses or indulges in similar activities which would hamper
smooth investigation, (5) attempts to flee to another country, (6) attempts to make
himself scarce by going underground or becoming unavailable to the investigating
agency, (7) attempts to place himself beyond the reach of his surety, etc. These
grounds are illustrative and not exhaustive.

IV.CASE LAWS
 In Joginder Kumar v. State of UP2 the apex Court ruled that an arrested
person being held in custody is entitled, if he so requests, to have one friend,
relative or other person interested in his welfare, told that he has been arrested and
where he is being detained. The police officer shall inform the arrested person
when is brought to the police station of this right. An entry shall be requested to be
made in the diary as to who was informed of the arrest. The Magistrate is obliged
to satisfy himself that their requirements have been complied with.

In D.K. Basu v. State of West Bengal3 steps were taken to prevent ‘Custodial
torture’. This matter was brought before the court by Dr. D.K Basu, Executive
Chairman of the Legal Aid Services, a NGO of West Bengal through a PIL. He
addressed a letter to the Chief justice drawing his attention to certain news items
published in the newspapers regarding deaths in the police lock – ups and
custody. This letter was treated as the writ petition by the Supreme Court. In this
case, the Supreme Court took a serious note of Custodial violence and death in
police lock-up. To check the abuse of police power, transparency of public action
and accountability are two possible safeguards.                                      

The apex court laid down guidelines (as preventive measure) to be followed
in all cases of arrest or detention till legislative measures are taken. Some are the
recent amendment made to the code codifies some of the Supreme Court
guidelines regarding arrest of a person laid down in D. K Basu case. i.e. like
amendments to sec. 41 like 41 A (Notice for appearance), 41B ( Procedure of
arrest and duties of officer making arrest), 41C (control room at district), 41D (Right
to arrested person to meet an advocate of his choice during interrogation) section
50A (obligation of person making arrest to inform about the arrest, etc., to
nominated person), Right to arrested person to get medically examined, etc. Even
Court directed that these directions should be widely circulated as Court
mentioned “Creating awareness about the rights of arrestee would be a step in the

2 (1994) 4 SCC 260

3 AIR 1997 SC 610
right direction to combat the evil of custodial crime and bring in transparency and
accountability”.

The First Information Report is earliest report made to the Police Officer held
in the case of Soma Bhai v. State of Gujarat4 as FIR according to his discretion.

If information comes at a police station simultaneously from a

number of persons, the officer-in-charge can use his common sense
and record one statement as the FIR.

In case of more than one FIR-There could not be more than one FIR
in one case, even if there are many victims of the alleged offence,
writing three FIR’s in one case is illegal. What is recorded in the first
point of time and which reached the officer-in-charge of police
station first is FIR.

The Supreme Court in Raghu Nandan v. State of UP5 observed that where
the prosecution as also the defence omitted the examination of the medical doctor
at the trial, the important questions emerging from a reading of the postmortem
report as to the alleged time of murder etc. remained unanswered and the Court
also failed to consider their importance. Therefore, the High Court itself should
have taken further medical evidence of the doctor under Section 311 of the Code.

Where the trial Court did not examine the Investigating Officer in a case under
Section 307, IPC, causing prejudice to the accused, the High Court of Orissa
remanded the case back to the trial Court for examining the Investigating Officer
and deciding the case afresh. In 2011, The Hon'ble apex court in Sanjay Chandra
vs CBI6 also opined that:

“The grant or refusal to grant bail lies within the discretion of the Court. The
grant or denial is regulated, to a large extent, by the facts and circumstances of
each particular case. But at the same time, right to bail is not to be denied merely
because of the sentiments of the community against the accused. The primary

4 AIR 1975 SC 1453

5 1974 SCC (4) 186
6 (2012) 1 SCC 40.
purposes of bail in a criminal case are to relieve the accused of imprisonment, to
relieve the State of the burden of keeping him, pending the trial, and at the same
time, to keep the accused constructively in the custody of the Court, whether
before or after conviction, to assure that he will submit to the jurisdiction of the
Court and be in attendance thereon whenever his presence is required”. Recently,
Hon’ble Supreme Court, in Aasu v. state of Rajasthan (Criminal Appeal NO.511 of
2017 Dt.09-03-2017) issued a direction that Bail applications shall be disposed of
normally within one week.

In Gurbaksh Singh Sibbia v. State of Punjab7, the Hon’ble Supreme Court

held that “The distinction between an ordinary order of bail and an order of
anticipatory bail is that where the former is granted after arrest and therefore
means release from the custody of the police, the latter is granted in anticipation of
arrest and is, therefore, effective at the very moment of arrest”.

V. CONCLUSION

Arrest has a diminishing and demoralising effect on the personality. He is

outraged, alienated and becomes hostile. But there need to be balance between
security of state on one hand and individual freedom on other hand. he rule of law
is, if a general law is broken, any person has a right to complain, whether he has
personally suffered injury or not. Every crime committed is considered as an
offence against the entire society so every member of society has right to inform
the State through police officer representing the State. Society has a vital interest
in grant or refusal of bail because every criminal offence is an offence against the
state. The order granting or refusing bail must reflect perfect balance between the
conflicting interests, namely, sanctity of individual liberty and the interest of the
society. Deprivation of personal liberty must be founded on the most serious
considerations relevant to welfare objectives of the society as specified in the
Constitution. There is also a strong need felt for a complete review of the bail
system keeping in mind the socio-economic condition of the majority of our
population.

7 1980 AIR 1632