WHAT TO DO IF AN F.I.R. HAS BEEN FILED AGAINST ME?

An F.I.R. filed against you generally mean that the Police authority now has all the legal powers to arrest you. But, like in every other case, there are exceptions to that as well, and also like every other case, each of such exception has a cost of its own which you may have to bear. And just like every other prior article, I will only inform you about the legal procedure involved to deal with this anxious situation of yours.

TECHNICAL BACKGROUND – F.I.R:

An F.I.R. can only be registered against you when the allegations are pointing towards a ‘Cognizable Offence’. For the purpose of everyone’s technical knowledge, a cognizable offence is an offence in which the police official does not require a warrant to arrest the accused person. In simple words, Police can arrest you as soon as the FIR is lodged against you (Refer to Schedule – 1 of Code of Criminal Procedure, 1973 [hereinafter “CrPC”] for an exhaustive list of cognizable/non-cognizable offences mentioned under the Indian Penal Code).

 

 

PROCEDURE BY POLICE AFTER FILING THE F.I.R:

Let us go through the legal procedure that the Police authorities, more particularly the Investigating Officer (hereinafter “I.O.”), must ideally follow after filing FIR against you as per law:

(a)  Arrest: The police may or may not arrest you, depending upon the seriousness of the crime and/or pressure from his seniors for making the arrest. Further, in the event of arrest, following things are ought to be done by the Police:

(i)  Memo of Arrest: This contain important details of your arrest such as time & date of arrest; name of the police station where you are taken for custody and other details. You and one other family member (i.e. witness) is required to sign the Memo of Arrest.

(ii) Seizure of properties: This procedure depends on case-to-case. IO may seize any property from your possession which may be related to the offence. For eg: in cases of counterfeiting currency, the IO may seize your printer and computer for the purpose of investigation. A proper written seizure-panchnama of the same will be prepared by the IO and will be attached along with the Chargesheet.

(iii) Informing a friend/family: You have the right to inform one family member or friend about your arrest. Make sure you have a contact number in mind when the IO asks you for the same, as there is high possibility that your mobile phone will not be with you at that time.

(iv) Case Diary: The IO must make an entry about your arrest in the police case diary, which serves as an evidence before the Magistrate when the IO will produce you before such Magistrate within 24 hours of your arrest.

(v)  Meeting your Advocate during interrogation: You may be given just one opportunity to meet your lawyer in the police station after arrest. During this time, it is very important that you recite the whole scenario of the offence to your lawyer and inform to him/her all important details in favour of your case, so that when you will be produced before the Magistrate the very next day, your lawyer is in a good position to give all legal/factual reasons to the Magistrate in support of your case.

(b)  Remand Application: As 24 hours is a fairly less time for an IO to fully investigate any matter, so the next step for the IO is to continue your police custody, for which the IO requires an Order from the Magistrate.

Therefore, while producing you before the Magistrate on the very first occasion, the IO will also file a ‘Remand Application’ asking the Magistrate to further extend the time-period of your police custody. It is important that your lawyer is present in the Court at that time to object such Remand Application.

(c)  Magistrate’s Order on Remand Application: After hearing the arguments of IO and your lawyer, the Magistrate will pass an Order in either of the following ways –

(i)     Remand you for further Police Custody (i.e. in the Police station); OR

(ii)    Remand you for Judicial Custody (i.e. in Central/State Jail as an under-trial prisoner); OR 

(iii)  Excuse you from remand and Order for your Bail by imposing certain conditions upon you.

PRACTICAL SITUATION DURING THE REMAND APPLICATION HEARING BEFORE THE MAGISTRATE:

In most cases, the Magistrate is, prima-facie, of the opinion that the accused must continue to remain in some kind of custody, whether Judicial or Police custody, so that the IO is at-least able to do basic investigation in the matter. However, the Magistrate always takes into consideration the facts of each case and only then passes his Order. Therefore, in order to get an Order in your favour, the presence of the following 02 things are of essence at this primary stage:

(a)  Your lawyer’s ability to rule out, even the minute possibility, of your participation in the offence; and

 

(b)  Reasons given by the IO to extend your remand period are vague and have no basis whatsoever.

 

For the above 02 hypothetical actions to fall in their right place, your wheels of fortune must be revolving at their very best form. If that appears to be the case, then the Magistrate will pass an Order of Bail (with certain conditions) in your favour, excusing you from any sort of custody. At that time, you must strive hard to get the Bail formalities done urgently on the very same day and enjoy your freedom as guaranteed to you by the Constitution of India, 1950.  

IN ORDER TO ENJOY ONE'S FREEDOM IN ITS PUREST FORM,

ONE SHALL FIRST IDEALLY SUFFER RESTRAINT IN ITS PUREST FORM…

 

P.S.: Due credits to Adv. Prem Tanna for imparting some practical insights as mentioned in this article above.

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TO READ NEXT BLOG CLICK HERE:

WHAT TO DO IF THE MAGISTRATE PASSES REMAND ORDER AGAINST YOU? 

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ABOUT THE AUTHOR:

Advocate Shreyas Jain, being a legal practitioner based in Mumbai, specializes in Criminal Law and primarily deal with criminal matters placed before Metropolitan Magistrates and Session Courts at Mumbai & Thane. Mr. Jain is a first generation lawyer and believes in working and excelling at the ground level before going big. You may reach him through his e-mail jainshreyas1995@gmail.com

 

NOTE: VIEWS MENTIONED IN THE ARTICLE ABOVE ARE PERSONAL AND HAS NOTHING TO DO WITH ANY PERSON, PLACE, ORGANISATION OR ANY OTHER FALLING UNDER THE DEFINITION OF ‘PERSON’ UNDER INDIAN PENAL CODE, 1860.