India Criminal Defense Manual - Other Pretrial Matters

From Criminal Defense Wiki
Jump to navigationJump to search

Conflict of Interest

Counsel shall be honest and responsible, making every effort to safeguard the client's legal rights. To fully perform his duties, counsel shall be loyal to his client and to the client's interests. Legal aid lawyers shall, as stipulated within legal parameters, remain loyal to their clients without condition. Once conditions arise that may threaten this professional loyalty, the lawyer shall avoid representing another accused in the same case and any other person or organization whose interests conflict with that of the client.



Bail pending trial is a compulsory measure adopted by the Criminal Procedure Code, 1973. It allows the criminal suspect to provide a guarantee or surety to guarantee that the suspect will not escape from the case investigation during the bail period, and that he will appear as soon as summoned and will appear on all dates of hearing before the court when called to appear. Although personal freedoms are restricted when the suspect is out on bail, such restrictions are far less severe than the restrictions placed on those in custody. The legal aid lawyer should apply for his client's bail as soon as possible.

The provisions of bail are broadly classified into two categories:

1. Bailable[1]

2. Non-Bailable cases[2]

In the first category, grant of bail is a matter of course and it may be given either by police in charge of the police station having the accused in custody or by the court before whom the trial is put up for hearing. Persons under this provision may be released on executing of bond with or without sureties. In the second category u/s 437(1) a person may be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm or if the court is satisfied that it is just and proper to do so in any other special reason. As soon as reasonable grounds for the guilt cease to appear the accused is entitled to be released on bail or on his own recognizance. The accused can be also released for similar reasons between the close of the case and delivery of judgment. When a person is released on bail the order of release is to be in writing by the court. In general, the court considers the seriousness of the charge, the nature of the evidence recovered, if any, the severity of the punishment prescribed for the offence and, in some instances, the character, means and standing of the accused.[3]

A person can apply to High Court or Court of Session and the said courts can direct for grant of bail to such person apprehending arrest u/s 438. Where a person has all reason to believe that he may be arrested on accusation of having committed a non-bailable offence, on moving for the appropriate application under this section with such firm reasons mentioned and assurance that he will cooperate with the police, when needed in the investigation, and will not try to interfere or tamper with evidence or witnesses during the investigation procedure, can be granted with an interim order u/s 438(1), that he will get a notice period of not more than seven days (7 days) prior to such arrest to move for a regular bail application before the appropriate court as per the concerned offences.

Care must be taken by the lawyer before moving for such an application because if the application gets rejected than it shall be open for the officer- in-charge of the police station to arrest without warrant on the basis of the accusations in the application.

In the application for anticipatory bail the petitioner must make out the special case with a firmness of belief of arrest in a false case. The petitioner must satisfy the court that the accusation against him does not stem from ordinary reasons of furthering the ends of law and justice in relation to the case but solely from other dishonest motives with the object of humiliating him.[4]

The trail Magistrate shall not authorize the detention of the accused person in custody for a total period exceeding:

1. ninety days, where the investigation relates to an offence punishable with that, imprisonment for life or imprisonment for not less than ten years.

2. Sixty days, where the investigation relates to any other offence In such circumstances the accused shall be released on bail if he is prepared to and furnishes the requisite bail bonds. This is a right of the accused to get bail in the aforesaid circumstances and the trial court shall release him on bail.[5]

Under What Circumstances May a Client Apply for Bail Pending Trial?

The accused may be granted bail under any of the following circumstances:

1. All cases which are listed as bailable under the Indian Penal Code, The Criminal Procedure Code, or subsequent and complimentary major or minor acts.

2. All non-bailable cases where the judge determines that the client is suitable for bail (does not include death penalty cases, life imprisonment cases or cases where the accused has a number of serious prior convictions as dealt with in the Cr.P.C sec. 437). These cases include when the client has deep roots in the community.

3. All non-death penalty cases where the client has served one-half of the maximum sentence for the crime committed, whether it be listed as a bailable or non-bailable offence. In this case, a charge liable for life imprisonment shall be considered a 20-year term, i.e., once an accused has served ten years (10 years) without completion of the trial, he is eligible for bail.[6]

4. When accused is suffering from serious illness he can be released on bail.[7]

5. If a case involving a criminal suspect or accused in custody cannot be closed within the time limit stipulated by law for keeping the criminal suspect or accused under custody for the purposes of investigation, conducting examination before prosecution, or further investigation, verification and handling are needed, the criminal suspect or accused should be allowed to apply for bail, with or without sureties.[8]

6. Cases in which the police lack sufficient evidence to arrest a criminal suspect who has been detained and require further investigation. What methods exist for applying for bail pending trial? The Criminal Procedure Code provides for two ways to obtain bail pending trial:

(1) on bond with or without sureties; and

(2) through a deposit in security of property, money, etc. (bail) with or without sureties

1. Sureties: Bail guaranteed by a person, who submits a letter to the proper authorities promising that the guaranteed person will not escape or obstruct the investigation, prosecution and trial and will appear whenever summoned. Granting of bail is based upon the character, reputation and credit of the guarantor, who must be willing to act as guarantor and must be approved by the applicable authority.

2. Bail guaranteed by property or money (security deposit): Under the bail system, the proper authorities have the accused deposit a security along with a written pledge promising not to evade investigation, prosecution and trial and promising to appear as soon as summoned during the course of bail. The amount of the security shall be determined by the decision-making body, which will take into account how much of a threat the suspect or accused poses to society, the nature and circumstances of the case, the financial situation of the suspect or accused, and the state of local economic development. The security deposit shall not be excessive.

3. Bond: Release on condition solely of attendance or sureties.


If a client meets the applicable conditions for bail, the legal aid lawyer should make every effort to secure the client's bail as early as possible. In all cases of bail-eligible offences, reasonable bail is a right that all clients are entitled to. In other cases, it is helpful to demonstrate that the client has deep roots in the community and is not likely to leave.

Reviewing the discovery

It is the duty of the magistrate to furnish to the accused and his pleader , free of cost, the copy of relevant documents or extracts of documents. These judicial documents include the FIR, the police report, any statements made by potential witnesses, and all other documents submitted to the Magistrate in a police report. Such rights have been guaranteed and provided by the lawmakers[9] The legal aid lawyer must review the judicial documents and materials pertaining to the case without delay.

Investigation to collect evidence

Legal Stipulations

Indian law allows the legal aid lawyer to:

1. Review the judicial files and the technical verification material.

2. Request a Magistrate to conduct an investigation to verify the evidence gathered by police.

3. Evaluate the testimony of the expert witness.

The following suggestions may help you in the investigation of the relevant evidence:

  • Take Prompt Action
  • Begin the investigation as soon as possible.
  • If you delay investigating, you risk losing material evidence and witnesses can more easily recall recent events.
  • Guard against Risks
  • Conduct your investigation with a companion.
  • Get the signature of any person who provides evidence.
  • Tape-record the whole course of collecting evidence.
  • Valuable Sources of Information
  • Charge sheet/Police report on completion of investigation
  • First information report
  • Case diaries if accessible
  • Statement of witnesses made before the investigating officer10
  • Statements of the co-accused(s)
  • Client interview
  • Statement of eyewitnesses
  • MLC (Medic Legal Case Report)
  • Experts' conclusions
  • Visit the Scene of the Alleged Crime
  • If permitted and possible, visit the scene of the alleged crime as soon as possible.
  • Use sketches, charts, photos, videotapes, measurements, etc., to record evidence found at the scene.
  • Search for undiscovered evidence.
  • Confirm who could be defense witnesses and write down how to contact them in the future; and
  • Search for witnesses who have not been questioned by the police.
  • Witness Interview
  • Consider recording the witness interview with videotapes or cassette tapes.
  • Is the witness capable of providing testimony? A minor who lacks the ability to distinguish right from wrong, or a person who cannot clearly and correctly express himself, or understand and respond to questions cannot act as a witness. Someone considered insane or mentally handicapped, however, who is capable of understanding and responding to questions, is capable of being used as a witness.
  • if possible, interview the prosecution's witnesses.
  • Meet the eyewitnesses.
  • The interview should be conducted in a safe and comfortable environment.
  • Make a record of the witness's background and details of current employment.
  • Statements of the Witness and the Victim
  • Are there any videotape or cassette tape records of the statements made by the witness and the victim?
  • Did the witness and the victim themselves personally write their statements?
  • What motives do the witness and the victim have to provide testimony? Does the witness have any personal interests relating to the case?
  • Has the victim been injured? If so, has the victim provided detailed information relating to the degree of his injury?
  • What is the relationship between the victim and the accused? The witness and the accused? The witness and the victim?
  • Has the victim been compensated in any form? If so, when, how much and who paid the money?
  • What is the mental condition of the witness and the victim?
  • Is the witness' statement based upon the witness' and the victim's own firsthand observation or based upon hearsay? o Has the witness' and the victim's testimony been obtained in legal ways? Has the testimony been obtained through torture, coercion, inducement, deception or other illegal ways?
  • Is the witness' testimony consistent with the victim's testimony? If not, what are the contradictions? Are the inconsistencies helpful or harmful to the defense of the client?
  • Are the witness' and victim's testimonies consistent with the accused's statement? Are they consistent with the co-accused's statement? If not, what are the inconsistencies? Are the inconsistencies helpful or harmful to the defense of the client?
  • Material Evidence
  • How did the police obtain the material evidence?
  • Was the search warrant that the police used valid, was the warrant executed by the person listed on the warrant as entitled to carry out the search or arrest?
  • Is there a detailed list of all the seized articles? Do the listed articles match the material evidence gathered by the prosecution?
  • Is there any relevant material evidence?
  • Can more than one interpretation be applied to the evidence?
  • Is the collected evidence first-hand or second-hand evidence?
  • Is the evidence of a fragile or stable nature? If fragile, have proper steps been taken to preserve it?
  • Has the evidence undergone any changes due to the passage of time, changes in the environment or any other factors?
  • If evidence was obtained through photography or filming, were there at least two participants at work? Has the photographer or the videotape recorder made a complete record of the evidence?
  • Has the evidence been verified? Will the evidence used for the defense hold its ground at trial?
  • Documentary Evidence
  • Was the search warrant that the police used valid?
  • Is there a detailed list of all the seized documents? Are the listed documents consistent with the evidence gathered by the prosecution?
  • Is there relevant documentary evidence?
  • Are there different interpretations of these documents?
  • Are these documents genuine or fabricated? It is the responsibility of the defense to repudiate seemingly authentic documents and other evidence. If this is not possible, try to plant doubt about the authenticity of some evidence, where it seems appropriate.
  • Are the signatures and seals on the documents genuine and complete?
  • If the documentary evidence is a duplicate or photocopy, why has the original not been submitted as evidence? Have the duplicates or photocopies been made with at least two persons present? Does the person who duplicated or photocopied the documents have any interests related to the case? Are the duplicates or photocopies entirely identical to the original?
  • Have the duplicates or photocopies been verified as genuine?
  • If the police seized mail or telegraphs, were their procedures consistent with the requirement that a Chief judicial Magistrate or District Magistrate or higher make out the search warrant for such material? Has the post office examined and delivered the items? Is there a possibility that the seized mail or telegraph has been fabricated, altered, or replaced?
  • Expert Evaluation
  • Has the expert obtained judicial permission to conduct the evaluation?
  • What evidence has the expert examined?
  • What are the expert's fields of expertise?
  • How long has he been considered an expert in his field?
  • What are the expert's qualifications? Has he been authorized and does he have the credentials to be an expert evaluator?
  • Is the expert equal to the work of his own field? Are the expert's methods and techniques in accordance with the relevant national or professional standards? Has the expert used up-to-date technology to conduct his evaluation? Does the evaluation require the expert to cover subjects beyond his area of expertise or beyond the technical and evaluation capacity of the judicial expert examination apparatus?
  • Are the materials that are the foundation for the expert's conclusions sufficient and authentic? Are the materials suitablefor evaluation or assessment, or do the materials conflict with the evaluation requirements?
  • Consider whether there is a need to advise the defense expert to independently verify the evidence.
  • Does the client have any physical or mental injuries that need an expert evaluation and technical explanation? If so, apply for the court to provide expert evaluation on the client's physical health or mental state. Provide the expert with the client's relevant medical records and biographical data.
  • Witness' Character Traits and the Scene of the Alleged Crime
  • When reviewing an eyewitness testimony, focus on the following aspects listed below. An understanding of the witness' character traits will help the lawyer narrow the range of investigation and identify the strengths and weaknesses of the witness' testimony. The items listed below affect how the witness might have observed facts of the case.

Witness' Character Traits

  • Gender
  • intelligence
  • memory capacity
  • educational background
  • employment history
  • language
  • speech impediment
  • age

???? temperament

  • mental state
  • state of health
  • alcoholic consumption
  • trauma caused by medicine or illegal substance abuse
  • eyesight
  • hearing
  • relationship with the victim
  • relationship with the accused
  • relationship with the co-accused
  • motive
  • partiality towards the client, victim or co accused
  • bias towards the victim or witness
  • was threatened before, during or after the alleged crime
  • lighting conditions

Surroundings of the Scene

  • daytime or nighttime
  • exact time during the day or night
  • moonlight
  • rain
  • fogqcoldness
  • heat
  • number of people present
  • duration of observation of the occurrence
  • realistic ability to see all the people present and their activities at the sceneq criminal weapon
  • natural plant life
  • buildings
  • automobiles
  • traffic conditions
  • observation angle or position
  • bird's eye view
  • upward view

See India Criminal Defense Manual


  1. Under Section 436 of Criminal Procedure Code
  2. Under Section 437 of the Criminal Procedure Code
  3. Nagendra Nath Chakravarti, (1923) 51 cal 402, 416: Robinson, (1954)23 LJQB 286,287
  4. Gurbaksh Singh Sibbia V. State of Punjab, (1980) 2 SCC 565
  5. Section 167 of The Code of Criminal Procedure, 1973
  6. Section 436A) of Criminal Procedure Code: has been inserted by the Cr P.C (Amendment Act), 2005
  7. Niranja v. Prabhakar, A. 1980 S.C. and Cr.P.C sec. 437(1)
  8. Section 167 of the Criminal Procedure Code
  9. Section 207, 208 and 210 of The Criminal Procedure Code