Criminal Process Part I: Forming a charge
In the first of this 6-part series of articles on the Criminal Process, we look at what happens at the very beginning of the criminal process.
First Information Report (FIR)
The First Information Report (“FIR”) is the first document prepared by the police containing information that the police received about an alleged commission of an offence. This may be based on the police report lodged by a complainant or the transcript of the telephone call made by the complainant through the police hotline. Typically, this is when someone either goes to the station to make a police report or calls the police hotline to inform the police that a crime has been committed.
Arrestable vs Non-arrestable offences
It is important to understand that not every criminal offence allows the police to arrest you. The main difference between arrestable offences and non-arrestable offences is that for an arrestable offence, police officers are legally empowered to arrest without a warrant.
On the other hand, for non-arrestable offences, the police may only arrest the accused if there is a warrant issued by the Magistrate. From the arrest, the police may only detain the accused for investigation for 48 hours, after which, a Magistrate’s order would be required to extend the custody.
Generally, arrestable offences are more serious than non-arrestable offences. For offences under the Penal Code, arrestable and non-arrestable offences are tabulated under the Third Column of the First Schedule of the Criminal Procedure Code (CPC).
Common examples of arrestable offences and non-arrestable offences
An investigation is the process whereby the police make inquiries to uncover the facts of the case. An investigation is usually commenced once a police report is made and the police are of the view that the allegations are of sufficient gravity for them to investigate. This includes the discovery of any evidence relating to the alleged crime. For non-arrestable offences, this process is only commenced by the discretion of the police or when ordered by the Magistrate.
During the period under custody of the police, the police may take down statements from the accused regarding the case. There are two types of police statements: witness statement and cautioned statement. It is important that you understand the difference between a witness statement and a cautioned statement.
Witness statements are recorded anytime during the police investigation and contain the facts of the case as presented by the accused.
Cautioned statements are taken after the arrest of the accused, before the accused is formally charged in court. It will contain anything that the accused wishes to say relating to the charge. It is important for the accused to check that any statement taken was accurately recorded before signing it as it may be used against him/her in court.
Although under Section 23 of the Criminal Procedure Code states that the accused has the right to remain silent, it should be noted that the act of remaining silent will be recorded and may be used to infer guilt.
Notably, any statements that were taken under inducement, threat or promise will not be admissible in court.
Investigative powers of the police
The police are conferred special investigative powers as listed under Part IV of the Criminal Procedure Code. Some examples of these powers include searching a property without a warrant for arrestable offences, seize property and access computers.
Furthermore, the police can require a witness to be interviewed by them. However, if a person refuses to be interviewed, the police can notify the Magistrate for a warrant to be issued, ordering the person to attend.
Please note that this article does not constitute express or implied legal advice, whether in whole or in part. If you require legal advice, please contact me at firstname.lastname@example.org.