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PART 1 - THINGS TO KNOW BEFORE FILING DEFAMATION COMPLAINT

Being aggrieved of the ruthless comments made upon Birbal by Akbar (His Majesty) in front of the entire Darbar, Birbal has decided to file a Defamation Complaint before the Court of Law. (If you feel clueless, read the first paragraph of - PREVIEW OF DEFAMATION COMPLAINTS PROCEDURE ) Also, Birbal is clueless about the legal process, so he approached Me ( Note: this anecdote is fictional, if you have not realized till now). I had to tell him the following information to make him aware about “Defamation Case Procedures in Indian Courts” in exchange of some legal-fee of course: SECTION 499: Defamation is a Criminal offence under Section 499 of Indian Penal Code . This legal provision contains the legal definition of ‘Defamation’, which has to be followed by Courts and the judicial fraternity in order to convict or acquit an Accused person.   Short-Gyan: Did you know that making defamatory comments against a dead individual is also a criminal defamation offence!   PUNISHMENT: Upon
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WHAT TO DO IF THE MAGISTRATE HAS PASSED A REMAND ORDER AGAINST YOU KEEPING YOU UNDER POLICE / JUDICIAL REMAND?

I had discussed in the last shorticle (i.e. short article) about a situation wherein the Police had arrested you and thereafter has produced you before the Magistrate within 24 hours, and such Police Investigating Officer (“IO”) had filed a Remand Application against you, requesting the Magistrate to remand you for Police custody (i.e. in police station) or Judicial Custody (i.e. in Jail as under-trial prisoner).

Now, what will you do if the Magistrate, after going through the Remand Application, passes an Order for keeping you in Police Custody/Judicial Custody? 

This shorticle precisely addresses this practical question of criminal law.

REMEDIES AVAILABLE TO YOU AT THIS STAGE:

The only remedy available to you at this custody stage is “To obtain Bail from the Magistrate”. But, getting a Bail at this stage is fairly difficult for the primary reason that there will be no ‘change in circumstances’ of the case.

 

BAIL APPLICATION TO BE MADE ONLY WHEN THERE IS A ‘CHANGE IN CIRCUMSTANCE’ OF THE CASE:

As soon as you are arrested or a Remand Order (for police custody or judicial custody) is made against you, you will be eligible to file a Bail Application against such Police Custody (“PC”) or Judicial Custody (“JC”) of yours. However, people related to the Accused, in such situations, get quite anxious and strive to file a Bail Application urgently before the same Magistrate within only 1-2 days of such Remand Order passed.

Be aware that these kind of practices may bring more harm to you than success. As, it must be understood that a Magistrate will only pass a Remand Order when he/she feels that your defense evidences are not strong enough to raise a prima facie doubt in the mind of the Magistrate.

In simpler words, if the Magistrate, after hearing all your arguments, has passed a Remand Order against you, it means that there is absolutely no reason for the same Magistrate to grant you Bail, especially after only 1-2 days of such Remand Order.

HYPOTHETICAL EXAMPLE FOR ‘CHANGE IN CIRCUMSTANCES’:

Such ‘change in circumstances’ may include a change in custody of the Accused person from Police Custody to Judicial Custody. In other words, the date on which the Magistrate changes the custody from Police to Judicial, the Accused person's Attorney may apply for Bail, citing "Change in Circumstances" along with some substantial arguments and evidence in his favour.

LIMITATION PERIOD FOR POLICE CUSTODY / JUDICIAL CUSTODY:

In case you are not able to get Bail in the case, you will have no other option but to wait for a further period. However, this ‘waiting exercise’ too has a limitation time period under Section 167 of CrPC, after which you shall mandatorily be granted a “DEFAULT BAIL” in your case. Following is the limitation time under PC and JC:

Police Custody:  

  • Custody cannot be extended beyond 15 days aggregate.

Judicial Custody: 

  • Custody cannot be extended beyond 90 days aggregate in respect of such offences, the punishment of which is either Death penalty or Life Imprisonment or Imprisonment for a term not less than 10 years.
  • Custody cannot be extended beyond 60 days in respect of such offences, the punishment of which relates to any other punishment.

The reason behind having the above Custody Limitation Period under CrPC is to ensure that the I.O. is given sufficient time to investigate the matter, while the Accused is ready in custody for aiding such I.O. in case investigation, out of fear or otherwise.

This brings us to another important situation – WILL YOU BE ENTITLED FOR A ‘DEFAULT BAIL’ IF A CHARGESHEET IS FILED DURING YOUR JUDICIAL CUSTODY PERIOD?

 

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TO READ NEXT BLOG CLICK HERE:

  1. WHAT IF THE I.O. FILES A CHARGESHEET WHILE YOUR PC/JC IS ONGOING?
  2. HOW DOES FILING A CHARGESHEET AFFECT YOUR CASE?


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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 email - 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 SUCH THING FALLING UNDER THE DEFINITION OF ‘PERSON’ UNDER INDIAN PENAL CODE, 1860.

 

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Location: Mumbai, Maharashtra, India

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