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To appreciate the process of Indian criminal law, it is necessary that to understand following important terminology:
- Bailable Offence, means an offence, which has been categorized as bailable, and in case of such offence, bail can be claimed, subject to fulfillment of certain conditions, as a matter of right under Section 436 of the Cr.P.C. In case of bailable offences, the Police is authorized to give bail to the accused at the time of arrest or detention.
- Non-bailable Offence, means an offence in which the bail cannot be granted as a matter of right, except on the orders of a competent court. In such cases, the accused can apply for grant of bail under Section 437 and 439 of the Cr.P.C. It is important to note that the grant of bail in a non-bailable offence is subject to judicial discretion of the Court, and it has been mandated by the Supreme Court of India that “Bail, not Jail” should be the governing and guiding principle.
- Anticipatory Bail, under Section 438 of the Cr.P.C., means that a person who apprehends arrest on a wrong accusation of committing a non-bailable offence, can apply before a competent court for a direction to police to immediately release such a person on bail in the event of arrest. However, the grant of anticipatory bail is discretionary and defendant on the nature and gravity of accusations, the antecedents of the applicant and the possibility of the applicant fleeing from justice.
- Cognizable Offence/case, has been defined under Section 2 (c) of Cr.P.C., as an offence/case in which a Police Office can arrest without a warrant.
- Non-cognizable Offence/case, has been defined under Section 2 (l) of Cr.P.C., as an offence/case in which a Police Officer has no authority to arrest without a warrant.
- Whether an offence/case is bailable or not bailable, and cognizable or non-cognizable, has been qualified under the 1st Table of the 1st Schedule of Cr.P.C., which relate to the offences under IPC.
- F.I.R (first information report), is formal recordal of a complaint, by police in case of commission of a cognizable offence, and can be considered as a first step in the process of the investigation of a cognizable offence by Police
- The Table II of the 1st Schedule of Cr.P.C., gives a general guideline to determine whether an offence is bailable, non-bailable, cognizable or non-cognizable. The criteria in the table below, is applicable in those cases which are silent on this aspect. For easy understanding, the following criteria may be understood:
|Offence||Cognizable or Non-Cognizable||Bailable or Non-bailable|
|Punishable With Imprisonment ForLess Than 3 Years or with fine only||Non-cognizable||Bailable|
|Punishable With Imprisonment For3 Years or more||Cognizable||Non-Bailable|
- The criminal investigation process and prosecution mechanism in India, can be started in any of the following manner:
- On complaint /reporting /knowledge of the commission of a cognizable offence, any police officer, even without the orders of a Magistrate, can investigate the cognizable case. [Section 156 (1) of the Cr.P.C.]
- In case of failure or inaction of a police officer to investigate a cognizable offence, a criminal complaint can be filed before a Magistrate under Section 190 of Cr.P.C., for taking cognizance of such offence, and on such complaint, the Magistrate himself can take cognizance of the case and do the inquiry, or in the alternative under Section 156 (3) of the Cr.P.C., order Police to register an F.I.R and investigate the offence.
- In case of non-cognizable offence, Police is not obliged to investigate, and the judicial process can be started by filing a criminal complaint before the competent court, under Section 190 of the Cr.P.C.
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Under Section 436 of the Indian legal code, an individual accused of any bail able offence are often released on bail. The law also allows an individual to use for bail even when he has not been arrested, but fears arrest within the near future. this sort of bail is understood as anticipatory bail. The police cannot arrest an individual who has an anticipatory bail order.
The arrestee has got to submit Form-45 given within the Second Schedule to the court during which the case is being heard to urge bail for a bail able offence. Without the court’s approval, the bail can’t be granted. When it’s a non-bail able offence, the arrestee must submit an equivalent form within the court but the granting of bail depends on the discretion of the court.
According to Section 154 of the Criminal Procedure Code, when the complaint is given orally, the policeman must write it down and skim it over to the person filing the complaint. Once satisfied, the person must sign the FIR both within the case of verbal and written FIR.
Bail is money or other property that’s deposited with the court to make sure that the person accused will return to court when he or she is required to try to to so. If the defendant returns to court as needed, the bail is going to be returned at the top of the case, albeit the defendant is ultimately convicted.