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A Comprehensive Guide To Civil and Criminal Proceedings in India

March 22, 2017

Everything from how you can file a civil or criminal case to protect your rights as a victim, accused, witness or informant, read on to know the entire legal procedure in case of breach of law.
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What’s the difference between civil and criminal cases?

Both civil and criminal laws involve wrongs that have been done to a person or group of people or property. However, civil law treats such wrong as inter-personal, so if you make a civil claim against someone for crashing their car into yours, for example, the Court can order that the person who committed the wrong to pay damages for their conduct to you.

Jail sentences are only awarded if the person who is ordered to pay damages fails to do so, and in those cases, the person making the claim has to bear the costs of imprisonment.

Civil cases are in relation to private rights – like property, for instance, and private obligations, like a duty of care owed to another citizen. The kind of cases included under this rather wide and vague definition include enforcing or breaching a contract, property rights, marriage and divorce.

For this, you need to move the Court and show what has happened to you, provide all the evidence to support your claim, appoint a lawyer to argue your case (or argue it yourself). You also need to bear the costs of the hearing of the case, which is payable through Court fees which depend on the amount of compensation or damages that you claim.

When the Court is examining your claim versus the claim of the person you have filed against, it considers the ‘preponderance of probability’, which is looking at which of the claims is more likely to be true than the other.

On the other hand, criminal law considers crimes to be against the State as opposed to just one person, and that the commission of a crime actually threatens the State and all its citizens.

That is why if someone commits a crime, they can be sentenced to imprisonment, and a fine has to be paid to the State, and could even involve a death penalty in certain cases.

The person who alerts the police (which is an agent of the State) about a crime can be anyone who has knowledge of the crime, and need not be a victim themselves or even an eye witness. The police then take up the investigation of the offence and the collection of material to be used as evidence to try the accused.

An accused can be arrested during the course of this investigation. After the police finish their investigation, they file all the material before a Court as part of a ‘chargesheet’ and the Court will proceed to examine the case. The police’s version of the story will be argued by the public prosecutor, who again, is an agent of the

State. Since it is the State versus a private individual, and since finding someone guilty means restricting their right to life and personal liberty, the burden of proof is higher, often referred to as the ‘presumption of innocence’ or ‘beyond reasonable doubt’. This means that Court believes that no other logical explanation can be derived from the facts except that the accused committed the crime, which overcomes the presumption that a person is innocent unless and until proven guilty.

In India, civil proceedings are outlined in various property laws of different religions, matrimonial laws, the Indian Contract Act, the Specific Relief Act, and Transfer of Property Act etc. General procedures are governed by the Civil Procedure Code.

Criminal Law is mostly encapsulated in the Indian Penal Code which covers most offences relating to the human body, and moveable and immoveable property, but can also be found in specific criminal laws like the Narcotics Drugs and Psychotropic Substances Act, the Juvenile Justice Act etc. General procedures are governed by the Criminal Procedure Code.

It is important to know that the specific laws can establish their own procedures, and Courts. With regard to evidence before Courts, the Indian Evidence Act applies across the Board with regard to the manner in which documents, witnesses etc. are to be examined.

Here is a guide on how to tell the difference between civil and criminal remedies:

Law or SituationRemedy
Any failure to comply with law that is punishable with fine e.g. conducting entrance examinations for 1st standard studentsCriminal - complaint must be filed in accordance with procedure in the law (in this case to the Authority under the Right to Education Act)
Any act of a person that is punishable with imprisonment e.g. obtaining a false disability certificate and deriving government benefits on account of that Criminal - complaint must be filed in accordance with procedure in the law (in this case, a complaint of cheating can be filed at the Police Station having jurisdiction)
Negligent act which harms another person that may not be governed by a law e.g. negligence while administering occupational therapyCivil - remedy lies under the “Law of Tort” and claim to damages can be made in a civil court
Divorce, maintenance, child custodyCivil - remedy lies under the Matrimonial law and must be filed in the Civil Court (usually Family Court)
Sale of a product that is of poor quality or rendering of service in an unsatisfactory mannerCivil - remedy lies under the Consumer Protection Law and must be filed in the Civil Court (Consumer Court)

Sometimes, cases are heard before ‘quasi judicial’ authorities – which are authorities with limited powers to hear complaints but are NOT Courts of law – for instance, the Disability Commissioner (see entry on Persons with Disabilities Act). These cases follow procedures under Civil Law with regard to summoning witnesses and submitting documents.


Civil Cases

How to file a civil case?

A civil case can be filed before a civil court. Which civil court depends on the jurisdiction, essentially referring to the Court that is ‘competent’ to hear your case. This depends on two factors – the territorial jurisdiction, and the pecuniary jurisdiction.

Territorial jurisdiction requires you to examine where location of the issue is – for example, in a suit for negligence, where did the act take place? In a suit for property rights, where is the property located? In a suit for divorce, where did the marriage take place? There may be different considerations for different cases.

The second consideration, if there are damages involved, is the Pecuniary Jurisdiction of the Court. This essentially asks the question, what is the value of the suit determined by the person filing it?

In Delhi, the 11 District Courts in the City (which have various territorial jurisdictions) are empowered to hear matters up to a valuation of Rs 2 crore, and beyond this, the High Court is where such cases should be filed. Some cases are bound to certain Courts, for example, matters relating to divorce, annulment, custody of children etc. are civil cases but they lie before the Family Court which has territorial jurisdiction.

A lawyer is the best person to guide you about where the case should be filed. You also have to deposit Court fees, depending on the nature of the case. These also change from time to time.

How do civil cases proceed?

Civil cases are filed in the form of a suit, which narrates the circumstances, provides a list of the documents and witnesses you have, and asks for reliefs to be granted.

If the case is such that you need urgent interventions to prevent irreparable damage, you can seek interim relief, which can even be granted ex-parte (i.e. without hearing the other side) if of such urgency.

After you file the suit, the Court will summon the person(s) or representative of the entity you have filed against, who must file a written statement in response to your suit, to which you have a right to file a rejoinder in response. The Court will then frame issues to be determined, and hear the claims.

As a person with disability, am I given any accommodations to conduct civil cases?

As of now, there are no mandatory provisions to enable the participation of persons with disabilities in Civil Procedure. In case the person who wishes to initiate the suit, or the person who is defending the suit, is found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued, the Court can order, under Order XXXII of the Civil Procedure Code, for the appointment of a ‘next friend’ to conduct the suit on their behalf.


Criminal Cases

If you’re a victim of a crime, what should you do?

You should contact your local police station without a delay. You can do this by dialing 100, or go personally, if feasible. It is important to remember the police station that your house falls within the jurisdiction of. There are police stations to handle law and order issues of certain territorial areas.

When you go to the police station and make a complaint about something that’s happened, the police will decide whether it is a cognizable or a non-cognizable offence.

A cognizable offence is one where the police has powers to investigate, and so they have to record a First Information Report and then proceed with the investigation.

If it is a non-cognizable offence, it means that the Police require the permission of the Court to investigate. Most serious offences are cognizable. If the offence is a non-cognizable one, the police will record the complaint and give you a record of the same, often referred to as an ‘NC’.

Can the police refuse to register an FIR?

Normally, the police cannot refuse to register an FIR in case you make a complaint which reveals the commission of a cognizable offence. There may be limited circumstances in which a preliminary inquiry may be required.

For instance, in cases of offences arising in a marital relationship, the police have the leeway to invite the couple to attempt mediation. There are other cases, particularly those against public servants, where prior permission of a senior official (to the accused) must be sought to prosecute. And of course there are some cases where the police may not cooperate in registering the FIR for other reasons.

In any case, if you are not satisfied with the manner in which the officer at the police station has handled your complaint, you have a right to complaint to the Senior Inspector of Police, who is the head of the police station.

If that does not work, you can meet the Assistant Commissioner of Police for the region, and further, the Deputy Commissioner of Police. You also have the option of approaching the local magistrate for a direction to the police to register the FIR.

Tip: To maintain a paper record of your attempts, it is always advisable to write down your complaint on paper, obtain a Xerox copy, and submit one copy to the police station and insist on obtaining an acknowledgment of the copy. This ensures that you can show that you have exhausted all remedies before approaching a Court.

You’re not a victim of a crime, but know something happened. Can you approach the police?

In most cases, yes.

The general principle is that crimes against individuals are crimes against the State, so the State and its citizens have the right to set the criminal law procedures in motion.

However, you may not be able to escape anonymity because the police will have to record how they found out about the offence. If you are noted as the ‘first informant’, your statement will be written down by the police, and you will be asked to sign the FIR.

You may be called for a further statement later during the investigation, and you will almost certainly be called as a witness during the trial. As a first informant, you will get a copy of the FIR.

What if you’re not the first informant but a victim or eye witness?

The police will record your statement after registering the FIR. However, you are not supposed to sign your statement made to the police, neither shall you be administered an oath to tell the truth.

In some cases, you may be asked to give your statement to the magistrate, and this statement will be recorded on oath. You shall not be entitled to a copy of your statement, and the first time you can access it, will be when the chargesheet is filed.

What if you’re not happy with the manner in which your statement was recorded, or not sure what was recorded?

Your statement should be recorded and read over to you in the language you are comfortable in. If this is not done, or if the police are refusing to record certain details, you can submit your own statement in writing to the police station with a note regarding the manner in which your statement was recorded.

It is important that you are satisfied with your statement, because when you are called as a witness in the Court later on, whatever you depose in Court will be held against this statement. If you say something in Court which is not in your statement, the defence may take advantage of this and ask you if you had told this to the police.

In case this happens, you can show your acknowledged copy and say that you did. If you are not comfortable with giving the statement in writing to the police station, you can send the same by registered post AD.

What if you’re accused of an offence? What are your rights?

Offences are divided into two classes – bailable offences and non-bailable offences. Bailable offences are those where the police can grant bail to an accused. For non-bailable offences, a Court has to grant bail. Arrest is not mandatory in all cases and the police are supposed to use this power judiciously.

If you are accused of a non-bailable offence, you can apply to the Court of Sessions for an order of Anticipatory Bail, saying that you are willing to cooperate with the investigation and that your custodial questioning is not required for the case.
If you are being arrested, you have the right to be explained the grounds of your arrest, and an arrest memo will be drawn up with the time and date of your arrest which you are to sign, along with two independent witnesses.

The information of your arrest shall be notified to your family members or any person of your choice.

Within 24 hours of arrest, you must be produced before the Magistrate, who shall decide whether to remand you to police custody (also known as the police lock up) or to judicial custody (in jail, as an undertrial).

If there is any search conducted, it has to be witnessed by two neutral witnesses as a detailed report of the search has to be drawn up.

You have the right to apply for bail upon arrest before the Magistrate, the Court of Sessions, or the High Court, depending on the severity of the allegation, and you can ask for legal aid to do this if you cannot afford a lawyer.

The investigation must be completed within 60 days of the lodging of the FIR (90 days in case of serious offences punishable with life imprisonment or death). If the investigation is not completed (with the filing of the police report), the accused gets a right to bail.

The accused has a right to all documents in the chargesheet when it is filed.

What happens after the police complete their investigation?

The police have to come to a conclusion as to whether the offence has taken place as the informant/victim has narrated. It is possible that the accused is not found, though the offence has definitely taken place. It is possible that the police believe that the offence is falsely alleged. The Police will file their report on the investigation to the Magistrate having jurisdiction, along with their conclusion.

If the police are able to link the evidence to the accused, the Magistrate will take the ‘chargesheet’ and proceed with the case, or transfer the case to a Court of Sessions that has jurisdiction in serious cases. If the police want to close the case, they have to give notice to the victim and first informant before doing that. The police can be ordered to continue the investigation if the Magistrate thinks it is required.

As a victim of a crime, do I have a right to be represented by a lawyer?

Since a crime is considered to be committed against the State, the public prosecutor will represent the case of the victim. However, a victim or first informant can appoint a lawyer to assist the prosecution. However, this lawyer is not permitted to examine witnesses or independently address the Court. And unlike for an accused, there is no ‘right’ to a lawyer for a victim.

How does a trial proceed?

The Court with powers to hear the case will examine the material collated by the police and decide what charges are to be leveled against the accused.

A charge is effectively a statement of the law the accused is accused of breaking, and some information on how they have done so, so that the accused is in a position to understand the offence and plead guilty, or not guilty.

If the accused pleads guilty, they will be sentenced. If they plead not guilty, the prosecution shall start producing witnesses and documents to support their case, which will be entered into evidence. The accused will get copies of all these documents and be given an opportunity to cross examine the witnesses.

After the prosecution completes its case, the accused will be examined, not on oath, and explained all the material that has come against them, and given an opportunity to explain or refute these allegations.

After this, if the accused wants to examine any witness, or examine themselves on oath, they shall be given an opportunity to do so.

After this, the prosecution and defence will argue the case, and the Judge will decide on the innocence or guilt of the accused on each of the charges framed. If the accused is found guilty, both parties will argue on the sentence to be imposed, after which the accused will be sentenced.

As a person with disability, are you given any accommodations in participation in a criminal case?

In 2013, post the Justice Verma recommendations, many amendments were made with respect to the procedures of investigation and trial and enabling the participation of persons with disabilities, particularly in the context of sexual offences.

The amendments made, however, apply regardless of the nature of the offence. Persons with disabilities receive the following accommodations:

During Investigation

If the informant of the offence is a person with disability in the case of a sexual offence, the statement shall be recorded by a police officer at the person’s home or at a place of their convenience, in the presence of an interpreter or special educator, and the recording of offence will be videographed, and the person shall be taken to the Magistrate for the recording of their statement. Before the Magistrate too, the person with disability can take the assistance of a special educator or interpreter, and the statement shall be videographed.

If a person with disability is a witness in a case or is a victim who is not the first informant, their statement shall be recorded by a police officer at their residence or at a place convenient to them. A victim statement can also be recorded by the Magistrate in the manner mentioned above.

If the person with disability requires to identify an Accused by way of Test Identification Parade, they will be able to identify the Accused in the manner that is most comfortable to them.

Trial

The Statement recorded before the Magistrate with the help of Special Educator and Interpreter, and videographed, shall be used as the examination in chief, and the person shall not be made to undergo the examination in chief again.

In both civil and criminal cases, any witness with disability related to verbal communication, shall be allowed to communicate in writing or through signs made in the open court. The Court shall also provide a special educator or interpreter to the witness to communicate.

What if you are accused of an offence as a person with disability?

As of now, there are no procedural accommodations for persons with disabilities who are accused of offences. In case the accused is ‘of unsound mind’, they are not allowed to enter into a plea of guilty or not guilty, and the case is kept in abeyance till they recover. They can also be sent into psychiatric care in the interim period by Court order. However this does not enable their participation in any way.

What to do if you can’t afford to appoint a lawyer or pay Court fees?

(See appointing a lawyer)

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