CODE OF CRIMINAL PROCEDURE, 1973

Adv. Manu Krishna. S.K

Gold Medalist &Rank Holder

Ph-9995400709

Introduction

When India came under the dominion of East India Company, ,Mohammedan criminal law was being

administered by the courts.There was low of Criminal Procedure. The courts, both in the provinces and

Presidency Towns were guided by separate Act relating to procedure. The Acts in force in Presidency Towns

were first consolidated by the Criminal Procedure Supreme Courts Act, 1852. Later this Act was replaced by

the High Court Criminal Procedure Act, 1865. For the providence there was a separate Act known as Criminal

Procedure Code,1861. It was replaced by the by another Code in 1872. In 1882 an uniform criminal procedure

, for the whole of Indian Presidency Towns as well as the provinces, was enacted which was known as the

criminal procedure code, 1882. This Code was finally replaced by an another Code which made thorough

provision of criminal procedure relating to all areas. This was the criminal procedure Code, 1898 which

remained in force for about three quarter of a century before being replaced by the present Code of Criminal

Procedure, 1973.

The preamble of the code says that it is an act to consolidate and amend the law relating to criminal

procedure.

The object of Code of Criminal Procedure is to provide a machinery for the determination of guilt

of the accused for committing a particular offences as provided under the Indian Penal Code and to ensure that

no innocent person is victimized.

The law of Criminal procedure is intended to provide a mechanism for the enforcement of criminal

law.

The principal object of Code ia to ensure that an accused gets full and fair trial in accordance with the

well established principles of law that accord with our notions of natural justice.

Law may be divided into substantive law and procedural law. The Procedural law is a fraction of law,

which deals with the procedure to be followed by a court. For instance, the Indian Contract Act is a

substantive law and Civil Procedure is a procedural law. The essential objects of the criminal law are to

protect the society against criminals and lawbreakers. The Indian Penal Code 1860 is the major penal law of

India. Dowry Prohibition Act, Prevention of Food Adulteration Act, etc are other penal laws found in India.

Criminal Procedure Code is a procedural law, which deals with the procedure to be followed by the criminal

courts in India. It deals with arrest, investigation, trial, and sentence. The punishment is mentioned in the

substantive law. Provisions for a fair trial are also envisaged in the Code. Similarly, delay of investigation

Prof.S.N.Misra, the Code of Criminal Procedure, Central Law Publications, Allahabad (2003), p.3

K.D Gaur, Textbook on the Code of Criminal Procedure, Universal Law Publications, Haryana (2016), pp.1&2

R V Kelkar, Lectures on Criminal Procedure, (1998), p.1

Dr. T. Padma and K.P,C Rao, The Principles of Criminal Procedure Code, Juvenile Justice and Probation of Offenders, ALT

Pjublications, Allahabad (2010), p.7

and trial are avoided. The new Criminal Procedure Code contains many improvements like legal aid to a poor

criminal, anticipatory bail, right to be medically examined, right to get a copy of an F.I.R and so on.

TOPIC 1

CLASSIFICATION OF CRIMINAL COURTS

The Code of Criminal Procedure deals with the structure and powers of criminal courts in India.

Each court is having a peculiar jurisdiction. A court having no jurisdiction cannot hear the case.

Under S.6 of the Cr.P.C, the following are the Criminal Courts:

1. Courts of Session.

2. Judicial Magistrate of the First Class and Metropolitan Magistrate in any Metropolitan areas (exceeding one

million population).

3. Judicial Magistrate of Second Class.

4. Executive Magistrate.

Court of Session

For every Session division, State shall establish a Court of Session. It shall be presided over by a judge

to be appointed by the High Court. The High Court may also appoint Additional Sessions Judges to exercise

the jurisdiction of a Court of Session. A person appointed as a Sessions Judge, Additional Sessions Judge, or

Assistant Sessions Judge would be exercising jurisdiction in the Court of Sessions and judgment and order

should be those of Sessions Judges.

Other judges,

1. The District Magistrate.

2. Additional District Magistrate.

3. Sub-divisional Magistrate.

4. Executive Magistrate.

5. Special Executive Magistrate.

High Court

It is the final appellate court of the state. All appeals from the Court of Sessions shall be heard by the

H.C of the state.

Supreme Court

This is the final appellate court of the country.

TOPIC 2

OFFENCE

(S. 2)

Section 2 (n) of Cr.P.C. defines offence as follows: Offence means any action or omission made

punishable by any law for the time being in force and includes any act in respect of which a complaint may be

made under Section 20 of the Cattle Trespass Act, 1871. Section 39 of the Code specifically defines ‘offence’.

Clause 2 of Section 39 reads “for the purposes of this Section the term offence includes any act committed at

any place out of India which would constitute an offence if committed in India.

1. Offence according to Section 2 (n) of the Code means any act or omission made punishable by any law for

the time being in force.

2. Any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act 1871.

Thus, acts or omissions made punishable under any law, which includes a local or special law, are all

offences. But neglect to maintain one’s wife and children is not an offence within the meaning of this Section.

Offences are Divided into Two Types:

1. Bailable Offence (S. 2 (a) & S.46)

It means an offence for which bail must be granted. The Criminal Procedure Code, in the 1st schedule,

provides a list of bailable offences. Bailable offences are not serious offences. The accused person can ask

for bail as a matter of right. The Magistrate is bound to release the accused on bail.

2. Non-Bailable Offence

It includes all offence other than the bailable offences provided in the first schedule. These are serious

offence like murder, rape, etc. The Magistrate has got discretion either to grant or refuse bail. If the accused is

below the age of 16 years, a woman, or a sick person, the Magistrate may give bail. For the offences

punishable with death or imprisonment for life, bail is generally refused. However in the course of trial, if the

accused if found not guilty, then he can be immediately released on bail. The judgment need not have been

pronounced. S.437 provides wide discretionary power to the High Court and the Sessions Court to grant bail

to an accused person.

The 2nd Classification of Offences is into,

1. Cognisable offences

2. Non-Cognisable offences

Cognisable Offence [S.2 (c)]

It means an offence for which the accused can be arrested without warrant. The first schedule of

the Criminal Procedure Code provides list of cognisable offences. An accused person while committing an

offence tries to do it secretly and after committing an offence, he usually runs away or hides himself. He may

try to tamper the evidence. So it is important to arrest such persons immediately. The police cannot wait for a

warrant from a Magistrate, because the offender may escape during this period. Further, the police have to

commence investigating at once, because the accused may try to tamper the evidence. Similarly a police

officer must prevent the commission of the cognisable offence like murder. So he can arrest the accused even

before the commission of such cognisable offences. In the same way, the police officer must prevent damage

to public property by way of arresting persons. Generally, cognisable offences are serious and so non-bailable.

Non-cognisable Offences [S. 2 (k)]

It is an offence wherein a police officer cannot arrest the accused without warrant. In a non-cognisable

offence, the police officer must get an order from the Magistrate for the arrest of the accused. These offences

are generally minor and less serious. So, the society is not harmed much. E.g., a member of an unlawful

assembly commits only a minor offence. However, it is treated as a cognisable offence and so the accused is

arrested without warrant.

Sometimes, single case may contain one or more offences. So in single case, there may be both

cognisable and non-cognisable offences, in such cases are treated as cognisable and so the accused may be

arrested without warrant.

Difference

Cognisable Offence

1. These are generally serious offences, like murder, dacoity, etc.

2. The accused is arrested without warrant.

3. The police officer can arrest and can begin investigation without getting the prior permission of

the Magistrate.

4. No complaint is necessary.

Non-Cognisable Offences

1. These are generally minor or less serious offences like assault, wrongful restraint, etc.

2. The accused cannot be arrested without warrant.

3. The police cannot arrest or begin investigation without getting the prior permission of the Magistrate.

4. Complaint is necessary.

TOPIC 3

SUMMONS CASE AND WARRANT CASE [S. 2 (w) & 2 (x)]

1. Summons Case [S.2 (w)]

A summons case is a case in which the offence is punishable with fine only or imprisonment not

exceeding two years or both. It is generally the result of a complaint. After the complaint is made the

Magistrate under S.200 generally examines it and process is issued for the attendance of the accused. The

particulars of the offence are informed to the accused when he appears before the court. He is given a show

cause notice.

In Muktar v. Sub. Inspector of Police

, the court held that order must show at least what are matters in

respect of which they will have to show cause.

If the accused admits the commission of the offence, then the Magistrate convicts him on his own

statement. If he denies, then the examination of witness is conducted and trial begins. Since it is a summons

case, only the Magistrate himself can punish the offender without committing him to the Court of Sessions. In

summons case, summons is served for the appearance of the accused or a witness or for the production of

document before the court. The summons must be clear definite and specific. It must bear the title of the

court, the time and date of attendance of the persons summoned, etc.

2. Warrant Case [S.2 (x)]

E.g. why the accused should not be convicted.

2002(1) KLT SN 15.

A warrant case is a case where the offence is punishable with death sentence or imprisonment for life

or imprisonment for a term exceeding two years. A warrant case requires more time and attention of the court

because the offence is serious. The case offers more opportunities to the accused person to prove his

innocence. S.240 lays down the procedure to be adopted in the trial of warrant cases instituted on the police

report.

Difference

The difference is mainly based on the degree of punishment. In summons case, the punishment is two

years imprisonment or less than two years and in all cases, where the punishment exceeds two years

imprisonment, they are considered as warrant case.

TOPIC 4

COMPLAINT

Complaint has been defined by S.2 (d) of the Code as follows: “Complaint means any allegation

made orally or in writing to a Magistrate, with a view to taking action under this Code, that some person,

whether known or unknown, has committed an offence, but does not include a police report”.

Explanation

A report made by a police officer in a case, which discloses, after investigation the commission

of a non-cognisable offence shall be deemed to be a complaint and the police officer by whom such report is

made shall be deemed to be complainant. The essentials of a complaint are:

1. The allegation must be made to a Magistrate.

2. The allegation must be made with a view to the Magistrate taking action under the Code.

3. The allegation must be that an offence has been committed. The complainant need not specify any offender

or the Section of the statue, which makes the act or omission.

4. The allegation may be made orally or in writing.

The complaint need not necessarily be made by the persons injured but may be made by any

person aware of the offence. A Magistrate is competent to make a complaint as a common informer. A public

prosecutor can make a complaint in his private capacity.

TOPIC 5

ARREST OF PERSON (S. 41-60)

Arrest involves the curtailment of the liberty of a person for legal purposes. In other words, taking into

custody of a person for an offence is called Arrest. The purpose of arrest may be either:

(i) To ensure the presence of the accused in a court of law to answer a criminal charge leveled against him

(ii) To prevent him from continuing his unlawful acts in special cases.

Apart from the above, if the accused is a dangerous and violent person, the arrest will have beneficial effect on

the morale of the society. Arrest of person in time will boost the image of the prosecution agencies and is

considered as an essential step in investigation.

As arrest involves depriving of freedom of an individual, it must be exercised with utmost care and caution

LEGAL PROVISIONS RELATING TO ARREST

Arrest of a person may be

(a with Warrant

(b) without a Warrant

The following persons are competent to arrest :

1. Any Police Officer

♦ without a Warrant (under Cr. P.C. Sections 41,123(6) and Sec. 151 )

♦ With a warrant (u/s 72 to 74 Cr. P.C. )

♦ With the written order of an Officer in charge of a police station (u/s 55 and 157 Cr.P.C).

♦ With Order of Magistrate (u/s 44 Cr.P.C.)

♦ In Non-cognizable offence( u/s 42 Cr.P.C).

2. A superior Police Officer( u/s 36 Cr.P.C).

3. An Officer In charge of Police Station (u/s 41 (2),129(2) and Sec. 157 Cr.P.C).

4. A Magistrate( u/s 44 Cr.P.C).

5. A Military Officer (u/s 130 and 131 Cr. P.C).

6. A Private person

♦ Without a warrant( u/s 43 Cr.P.C).

♦ With Warrant (u/s 72 & 73 Cr. P.C).

♦ With Order of a Police Officer (u/s 37 Cr.P.C).

♦ With Order of Magistrate (u/s 37 & 44 Cr.P.C).

Arrest without warrant by any Police Officer:- (Section 41,CrPC ) A Police Officer is empowered to arrest

a person without a warrant :

(a) Who has been concerned in any Cognizable offence; or against whom,a reasonable complaint has been

made, or,a credible information has been received that such person in involved in some criminal offence or a

reasonable suspicion exists having connection with some criminal offence.

(b) if the person has in his possession any implement of house breaking without lawful excuse;

(d) if such person is found in possession of stolen property;

(e) if such person obstructs a police officer while in the execution of his duty or if such person escapes or

attempts to escape from lawful custody;

(f) If such person is reasonably suspected of having deserted from any of the Armed Forces of the Union;

(g) Who has been concerned, or against whom a reasonable complaint has been made or credible

information has been received or a reasonable suspicion exists of his having been concerned in any act

committed at any place out of India, which if committed in India would have been punishable as an

offence, and for which he is, under any law relating to extradition or otherwise, liable to be apprehended or

detained in custody in India;

(h) If such person being released convict, commits a breach of any rule made under S/356 (5) Cr.P.C. S/

356 (5) Cr.P.C. deals with the order for notifying address of previously convicted offender (notification of

residence or change of or absence from residence of released convicts).

(i) For whose arrest any requisition, whether written or oral has been received from another police

Officer.Sub-section 2 of Sec. 41 Cr.P.C. also empowers the police officer to arrest any persons who come

under Sec. 109 Cr.P.C. (security for good behavior from suspected person) and under Sec. 110 Cr.P.C.

(Security for good behavior from habitual offenders).

Sec. 42 empowers a police officer to arrest any person who refuses to give name and residence. But

this power can be exercised only on a person who commits a non-cognizable offence in the presence of the

police officer or who is accused of committing such offence before such officer.

Sec.55 empowers a police officer in charge of Police Station to depute another Police Officer in writing to

arrest any person who may lawfully be arrested without a warrant.

The power empowered under Secs. 41, 42 & 55 of Cr.P.C to a Police Officer to arrest a person is not

exhaustive. There are various other Acts which also confer such powers on police officers viz., Arms

Act, Explosive Act, TADA, MISA etc.,

If the Police Officer makes a wrong arrest by mistake in good faith, he is protected under the Act.

Sec. 57 of the Code gives mandatory direction that the Police Officer must produce the arrested person

before a Magistrate within 24 hours of his arrest. A Police Officer should be in the uniform to reveal the

identity of his official authority except in emergency cases where he can effect arrest without being in

uniform. But, police officer has on obligation to make it clear to the person whom they intend to arrest

that they are officers of law. (Emperor Vs. Abdul Hamin, 43, Cr.L.J., 338).

Arrest by a Private Person:-

Sec. 43 Cr.P.C. empowers any private person to arrest any person who commits a non-bailable and cognizable

offence.

The Object of this section is to make every citizen of the country to be responsible person to prevail

upon peace in the country.

Apart from above section 37 of Cr.P.C. casts a duty upon every person to assist a Magistrate or a police

officer in taking or preventing the escape of any other person who is authorised to be arrested by a Magistrate

or a police officer, in the prevention or suppression of a breach of peace or in the prevention of any injury

attempted to be committed to any Railway, Canal, Telegraph or public property.

Arrest by Magistrate:-

Sec. 44 Cr.P.C. empowers a Magistrate to arrest a person when any offence is committed in his

presence. The Magistrate may be an Executive or Judicial Magistrate. But if the offence is committed within

his local jurisdiction, he has power to arrest the offender either himself or may order any person to arrest the

offender.

Arrest by Officers of the Armed forces

Sec.130 and 131 of the Cr.P.C. empowers an Officer of the Armed forces to arrest and confine such

persons of an unlawful assembly in order to disperse the Assembly or to have them punished according to

Law.

This power is exercised only when the assembly cannot be otherwise dispersed and endangering public

security and only with the order of the Executive Magistrate.(sec 130 Cr.P.C.).

However, if the Executive Magistrate cannot be communicated with any Commissioned or the Gazetted

officer may disperse such assembly and may arrest and confine any persons forming part of it but while he is

acting under this section if it becomes practicable for him to communicate with an Executive Magistrate, he

shall do so and shall or shall not continue such action according to the instructions of the magistrate(sec 131

Cr.P.C.).

RESTRICTION ON THE POWER OF ARREST:-

(a) Police has no power of arrest without warrant in a non-cognizable offence.

(b)Illegal arrest is punishable under Sec. 220 I.P.C.

i. Under Sec. 58 Cr.P.C. Police is bound to report apprehension to Magistrate.

ii. Under Sec. 59 Cr.P.C. police cannot discharge any arrested person except on his own bond, or on

bail or under the special order of a Magistrate.

iii. Arrest during investigation is also made under the watchful eyes of the Magistrate and Secs. 157,

167, 169, 170 and 173 of Cr. P.C. are relevant in this connection.

iv Under Sec. 44 of the Police Act, the Magistrates have

access to the General Diary. It records the details about arrest of a man when he is taken into custody.

(d ) The superior police officers are also empowered by law to know the position of a cognizable case under

investigation. Sec. 158 and 173 (2) Cr.p.C. have provided for submission of reports comtemplated in Secs.

157 and 173(1) Cr.P.C. through difference stages.

In Prem Shankar Shukla Vs. Delhi Administration, AIR 1980 SC 1535, certain conditions in which handcuffs

to be used was laid down by the Supreme Court which is as under:-

1. Every male person falling within the following category can be handcuffed viz.,

a.Persons accused of a non-bailable offence punishable with any sentence exceeding in severity a term of

3 years imprisonment.

b.Persons accused of an offence punishable under Sec. 148 or 226 of I.P.C.

c. Persons accused of, and previously convicted of, such an offence as to bring the case under Sec. 75

I.P.C.

d .Desperate characters.

e. Persons who are violent, disorderly or obstructive or acting in a manner calculated to provoke popular

demonstration.

f. Persons who are likely to attempt to escape or to commit suicide or to be the object of an attempt at

rescue. This rule shall apply whether the prisoners are escorted by road or in a vehicle.

2. Better class under-trial prisoners must only be handcuffed when this is necessary for safe custody.

3. The actual practice of arresting prisoners/persons by handcuffing as a matter of routine is to be strictly

stopped forthwith.

4. Handcuffs should not be used in routine. They are to be used only where the person is desperate, rowdy or

is involved in non-bailable offence.

There should ordinarily be no occasion to handcuff persons occupying a good social position in public life or

professionals, the jurists, advocates, doctors, writers, educationists and well known journalists and this list is

only illustrative and not exhaustive.

5. The duty officers of the Police Station must also ensure that an accused when brought at the police station

or dispatched, the facts whether he was handcuffed or otherwise should be clearly mentioned along with

reasons for handcuffing in the relevant Daily Dairy Report. The SHO of the police station and ACP of the

Sub-Division will occasionally check up the relevant daily dairy to see that these instructions are complied

with by the police station staff.

In D.K.Basu Vs. State of West Bengal, AIR 1997 SC 610:-

Following guidelines has been laid down by Supreme Court for police officers to be observed during arrest:

1. The Police personnel carrying out the arrest and handling the interrogation of the arrestee should bear

accurate, visible and clear identification and name tags with their designations. The particulars of all such

police personnel who handle interrogation of the arrestee must be recorded in a register.

2. That the Police officer carrying out the arrest of the arrestee shall prepare a Memo of Arrest at the time of

arrest and such memo shall be attested by at least one witness, who may be either a member of the family of

the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter

signed by the arrestee and shall contain the time and date of arrest.

3. A person who has been arrested or detailed and is being held in custody in a police station or interrogation

centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having

interest in his welfare being informed as soon as practicable, that he has been arrested and is being detained at

the particular place, unless the attesting witness of the memo of arrest is himself is such a friend or a relative

of the arrestee.

4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next

friend or relative of arrestee lives outside the district or town through the Legal Aid Organization in the

District and the police station of the are concerned telegraphically with a period of 8 to 12 hours after the

arrest.

5. The person arrested must be made aware of this right to have someone informed of his arrest or attention as

soon as he is put under arrest or is detained.

6. An entry must be made in the Diary at the place of detention regarding the arrest of the person which shall

also disclose the name of the next friend of the person who has been informed of the arrest and the names and

particulars of the police officials in whose custody the arrestee is.

7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor

injuries, if any present on hi/her body must be recorded at that time. The "Inspection Memo” must be signed

both by the arrestee and the police officer effective the arrest and its copy provided to the arrestee.

8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours of his detention

in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the

concerned State or Union Territory.

Director, Health Services should prepare such a penal for all Taluks and Districts as well.

9. Copies of all the documents including the memo of the arrest referred to above should be sent to the

Magistrate for his record.

10. The arrestee may be permitted to meet his Lawyer during interrogation, though not throughout the

interrogation.

11. A police control room should be provided at all District and State Headquarters where information

regarding the arrest and the place of custody of the arrestee shall be communicated by officer causing the

arrest, within 12 hours of effecting the arrest and at the police control room, it should be displayed on a

conspicuous notice board.

12. Failure to comply with the requirements herein above mentioned shall part from rendering the concerned

official liable for departmental action, also render him liable to be punished for contempt of court and the

proceedings for contempt of court may be instituted in any High Court of the country, having territorial

jurisdiction over the matter.

These requirements are in addition to the Constitutional and Statutory safeguards and do not detract from

various other directions given by the courts from time to time in connection with safeguarding all the rights

and dignity of the arrestee.

CONSTITUTIONAL RIGHTS AND REMEDIES AGAINST ARREST

Article 21 and 22 of the Indian Constitution deals with the rights and remedies against arrest . Article 21

guarantees every citizen freedom of life, liberty and property and lays down “No person shall be deprived of

his life, liberty or property without due process of the law”.

In Hussainara Khatoon vs Home Secretary,State of Bihar (1980), the Supreme Court held that the procedure

prescribed by the law should not deprive a person of his liberty and acquitted the accused who was in judicial

custody for a long period for a smaller offence and the punishment for this offence would have been 2 yrs if

proved , but trial delayed for 4 yrs.

In Rudul Shah’s case , the supreme court ordered to release him immediately and also ordered the State

Government to pay Rs. 30,000 for illegal arrest by the police .

Article 22 deals with the protection against arrest and detention also it provides the following rights to the

person arrested:

1 Right to be informed the ground of arrest

2 Right to consult and to be defended by a legal practitioner of his choice

3 Right to produce before a Magistrate within 24 hrs of his arrest

4 Not to be detained beyond 24 hrs without a Magistrate’s authority

Sections 49, 57, 59 and 436 of Cr.P.C corresponds with the above rights

WRIT OF HABEAS CORPUS

Articles 32 and 226 of the Indian Constitution confers power on the Supreme court and the High Court

respectively to issue the writ of Habeas Corpus calling upon any detaining authority to produce before the

court any person detained so that he may be dealt with according to the process of law.

Habeas Corpus is writ directing to produce the body of that person against any illegal detention, restraint or

confinement .

Any person arrested or detained or kept under unauthorized detention or his friend or his relative can

approach the High Court or Supreme Court requesting to issue the writ of Habeas Corpus.

Refusal of Writ:-

1 If the person is arrested and detained according to the law

2 If the person so detained is released from the detention

3 If the person is arrested or detained under any preventive detention Acts

4 Any person who for the time being is an alien enemy

In Bhim Singh Vs State of J&K(1985)(SC), in a Habeas Corpus writ, the SC ordered the police to release the

MLA Bhimsingh who was detained by the police without any valid reason and also directed the State to pay

Rs.50,000 as damages for the violation of his constitutional right.

In Bhavsagar vs State of A.P.(1993) the High Court of A.P. ordered the release of Bhavsagar from police

custody and also ordered the State Government to pay Rs,20,000 compensation for wrongfully arresting Mr.

Bhavsagar.

TOPIC 6

PROCLAMATION AND ATTACHMENT

(Ss.82-86)

Ss.82-86 of the Cr.P.C deal with the procedure for the proclamation and attachment of property. When a

court issues a warrant for the appearance of a person and if that person is not appearing, the next stage is to

make a proclamation. The court, issuing a warrant will make a proclamation directing the person to appear

before the court, within 30 days from the date of proclamation. The proclamation must be in writing and must

be published. Such publication may be made in any one of the following methods:

1. It should be publicly read in a place where such person ordinarily resides;

2. By affixing the proclamation in the house of the person;

3. A copy of the proclamation must be affixed in the court house;

4. If necessary, a copy will be published in a daily newspaper having circulation in the area where the person

ordinarily resides.

Attachment

By virtue of S.83, in spite of the proclamation, if the person named is not appearing, the court will order

the attachment of the property (movable and immovable) belonging to such a person. In the case of livestock

and perishables, it will be sold and the proceeds must be deposited in the court.

Whether Attachment can be Made Along with the Proclamation?

Proviso to S.83 provides that if the court is satisfied that the proclaimed person is about to dispose of

the property or is attempting to remove the property outside the legal jurisdiction of the court, then the court

can issue an order of attachment along with the proclamation.

Claim of an Innocent Party

By virtue of S.84 if any claim or objection is made to the attachment, such claim must be made within 6

months from the date of attachment. The court will inquire the veracity of the claim. If the claimant dies, his

legal representatives are entitled to continue the action. If the claim is disallowed, he can file a separate suit.

Such suit must be filed within 1 year from the date of rejection of the claim.

Release, Sale and Restoration of the Property

If the proclaimed offender appeared within the time specified, the attached property must be released. If

he does not appear, the attached property will be vested with the State Government and it cannot be sold

within 6 months. This is intended for permitting any claim from third parties. If such proclaimed person

appears or is brought, and convinced the court that he had no notice about the proclamation or the attachment,

the court shall release all the properties and sale proceeds, if any, deducting the expenses for attachment. He

must satisfy the court that he did not abscond or conceal himself, for avoiding the execution of warrant and he

had no notice about the proclamation.

TOPIC 7

SEARCH AND SEIZURE

(Ss.93-98)

The word ‘Search’ generally means looking for a thing and ‘Seizure’ means taking possession of

the thing physically for which search is made. For the purpose of investigation, search means the examination

of a man’s person or/and the premises to discover evidence and material objects to connect the accused with

the offence he has committed. A successful search not only will deprive the offender of the enjoyment of the

property but also fix him with the crime which he committed. The power of search is one of the most

important powers conferred on an IO or an officer in-charge of a Police Station by law. This power is even

greater than the power of arrest, as arrest can be made even by a private person if a cognizable and non-

bailable offence is committed in his presence but a private person has no power of search.

In M.P.Sharma Vs. Satish Chandra (AIR 1954 SC 300) the Supreme Court observed:-

“The search by itself is not a restriction on the right to hold and enjoy property. No doubt the seizure and

carrying away is a restriction of the possession and enjoyment of the property seized. This, however, is only

temporary and for the limited purpose of investigation. The damage, if any, caused by such temporary

interference; if found to be in excess of legal authority, is a matter of redress in other proceedings.”

Legal provisions relating search and seizure

Search without warrant

1. place entered by person sought to be arrested (Sec.47 Cr.PC ).

2. the person of arrested individual(Sec. 51 Cr.PC).

3. premises within the limits of the SHO in emergent cases(Sec.165 Cr.PC )

4. premises beyond the limits of the SHO in emergent cases (Sec. 166 Cr.PC) .

Search with warrant

1. for documents (Sec. 93 Cr.PC)

2. for:- Stolen property,Counterfeit currency ,Forged documents,False seals Obscene objects( Sec. 94

Cr.PC )

3. for forfeited documents u/s 124-A,153-A, 153-B, 292 and 293 IPC .( Sec 95 Cr.PC)

4. for a person wrongfully confined(Sec. 97 Cr.PC).

Power of Police Officer to seize certain property Sec. 102 Cr.PC

Any Police Officer may seize any property which may be alleged or suspected to have been stolen, or which

may be found under circumstances which creates suspicion of the commission of any offence.

Such Police Officer, if subordinate to the officer in-charge of a Police Station, shall forthwith report the

seizure to that officer.”

The word ‘any offence’ shows that even though the offence be non-cognizable, the Police may seize property

found under suspicious circumstances . The suspected property must be seized by the Police Officer himself

and he cannot order another to do it.

Conducting search of a person

Search of a place entered by person sought to be arrested-(sec 47CrPC)

If any person acting under a warrant of arrest, or any Police Officer having authority to arrest, has reason

to believe that the person to be arrested has entered into, or is within any place, any person residing in, or

being in charge of such place shall, on demand of such person, allow him free ingress thereto, and afford

all reasonable facilities for a search therein. If ingress to such place cannot be obtained it shall be lawful

for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained

without affording the person to be arrested an opportunity of escape, for a Police Officer to enter such

place and to break open any outer or inner door or window of any house or place, whether that of the

person to be arrested or of any house or place, if after notification of his authority and purpose, and

demand of admittance duly made, he cannot otherwise obtain admittance:

Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be

arrested) who, according to custom, does not appear in public, such person or Police Officer shall, before

entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every

reasonable facility for withdrawing, and may then break open the apartment and enter it.

Any Police Officer ;or other person authorised to make an arrest may break open any outer or inner door

or window of any house or place in order to liberate himself or any other person who, having lawfully

entered for the purpose of making an arrest, is detained therein.”

“Search of arrested person (Sec. 51)

Whenever a person is arrested by a Police Officer under a warrant which does not provide for taking of bail,

or under a warrant, which provides for the taking of bail, but the person arrested cannot furnish bail, and

Whenever a person is arrested without warrant or by a private person under a warrant, and cannot legally be

admitted to bail, or is unable to furnish bail,

The Police Officer making the arrest or, when the arrest is made by a private person, the Police Officer to

whom he makes over, the person arrested, may search such person, and place in safe custody all articles, other

than necessary wearing apparel, found upon him and where any article is seized from the arrested person, a

receipt showing the articles taken possession by the Police Officer shall be given to such person.

Whenever it is necessary to cause a female to be searched, the search shall be made by another female with

strict regard to decency.”

Search for a person wrongfully confined

Section 97 Cr.PC authorizes any District Magistrate, Sub-Divisional Magistrate or Magistrate of the First

Class to issue a search warrant for a wrongfully confined person and the person if found shall be immediately

produced before the Magistrate.

Where any person in or about such place is reasonably suspected of concealing about his person any

article for which search warrant was made, such person may be searched and if such person is a woman,

the search shall be made by another woman, with strict regard to decency.

Before making a search the officer or other person about to make it shall call upon two or more

independent and respectable inhabitants of the locality in which the place to be searched is situated or any

other locality if no such inhabitant of the said locality is available or is willing to be a witness to the

search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The search shall be made in their presence, and a list of all thing seized in the course of such search and of

the places in which they are respectively found shall be prepared by such officer or other person and

signed by such witnesses; but no person witnessing a search shall be required to attend the Court as a

witness of the search unless specially summoned by it. The occupant of the place searched, or some person

in his behalf, shall in every instance, be permitted to attend during the search, and a copy of the list

prepared signed by the said witnesses, shall be delivered to such occupant or person. When any person is

searched a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to

such person. Any person who, without reasonable cause, refuses or neglects to attend and witness a search

when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have

committed an offence under Section 187 of the Indian Penal Code

Conducting search of premises

Search may be conducted to seize objects which will connect the accused with the offence which he

has committed, for example, stolen property in cases of theft and burglary; weapon of offence in cases of

murder, robbery, dacoity, ‘riots and die, ink, etc., in case of counterfeiting of notes. Search may also be

conducted to apprehend the accused a well as to recover a kidnapped or abducted person. The provision

contained in the Cr.PC in respect of search is discussed hereunder:

Search of a place (Sec. 165 & 166 Cr.P.C.): In emergent cases where there may be immediate

necessity or search and there being not time to obtain the warrant from a Magistrate, powers of search are

given to an officer in charge of a Police Station or a Police Officer making an investigation of an offence to

conduct searches without a warrant.

Search by Police Officer(Sec. 165)

Whenever an officer in charge of a Police Station or a Police Officer making an investi-gation has reasonable

grounds for believing that anything necessary for the purposes of an investigation into any offence which he is

authorised to investigate may be found in any place within the limits of the Police Station of which he is in

charge, or to which he is attached, and that such a thing cannot in his opinion be otherwise obtained, without

delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so

far as possible, the thing for which search is to be made, search, or cause search to be made, for such thing in

any place within the limits of such station.

A Police Officer shall, if practicable, conduct the search in person.

If he is unable to conduct the search in person, and there is no other person competent to make the search

present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate

to him to make the search, and he shall deliver to such subordinate ;officer an order in writing, specifying the

place to be searched, and so far as possible, the thing for which search is to be made, and such subordinate

officer may there upon search for such thing in such place.

The provisions as to search warrants and the general provisions as to searches contained in Section 100 shall,

apply to the search. Copies of any record shall forthwith be sent to the nearest Magistrate empowered to take

cognizance of the offence and the owner or occupier of the place searched shall, on application, be furnished,

free of cost, with a copy of the same by the Magistrate.”

The contents of Sec. 165 Cr.PC are summarized hereunder:

1. The power of search without warrant is given to the officer in charge of a Police Station or an officer

investigating a case.

2. Search may be necessary for investigation.

3. The offence must be such as the Police Officer is authorised to investigate, i.e., cognizable offence.

4. Reasonable grounds must exist for believing that the thing required will be found in that place.

5. There would be undue delay in getting the thing in any other way.

6. Grounds of belief as to the necessity of search must be previously recorded and communicated to the

Magistrate forthwith.

7. The article of search must be specified, as far as possible in the record.

8. Procedure of the search may be adopted as prescribed in Section 100 Cr.P.C.

9. Copies of the record made, i.e., (i) the reason for conducting the search without warrant, (ii) ordering

the subordinate to conduct the search, and (iii) the search list should be sent to the Magistrate

empowered to take the cognizance of the offence.

10.The search should be within the limit of the Police Officer investigating the case.

Sec. 166 Cr.P.C enables an officer in charge of a Police Station to have a search made within the limits

of another Station through the officer in charge of that station . In emergent cases, the officer in charge of one

Police Station may search or cause to be searched places within the limits of another Police Station, subject to

the conditions and procedure laid down u/s 165 and 100 Cr.P.C.

Search warrant for document (Sec. 93 Cr.P.C.)

Where any Court has reason to believe that a person to whom summons or order under Section 91 or a

requisition under Sec. 92 has been, or might be, addressed will not or would not produce the document or

thing as required by such summons or requisition, or

b) where such document or thing is snot known to the Court to be in the possession of any person, or (c)

where the Court consider that the purposes of any inquiry, trial or other proceeding under this Code will be

served by a general search or inspection, it may issue a search warrant; and the person to whom such warrant

is directed, may search or inspect ;in accordance therewith and the provisions hereinafter contained.

The Court may, if it thinks fit, specify in the warrant the particular place or part thereof to which only

the search or inspection shall extend; and the person charged with the execution of such warrant shall then

search or inspect only the place or part so specified.

Nothing shall authorise any Magistrate other than a District Magistrate or Chief Judicial Magistrate to

grant a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph

authority.” However, for a document, parcel or other thing in the custody of the postal or telegraph authority,

only District Magistrate or Chief Judicial Magistrate can issue the warrant. Search of a place for stolen

property (Sec. 94 Cr.P.C.)This Section authorizes the District Magistrate, Sub-Divisional Magistrate

orMagistrate of First Class to issue a search warrant for stolen property, counterfeit currency notes, forged

documents, false seals and obscene objects (as contemplated u/s 292 IPC) etc.

Under this Section, the Court is authorised to issue search warrant to any Police Officer above the rank of a

Constable. Search for forfeited publication (Sec. 95 Cr.P.C.) The section authorizes any Magistrate to issue a

search warrant to an officer not below the rank of Sub-Inspector to seize any newspaper or book or any

document which the State Govt. by notification declared to be forfeited. (Documents includes any painting,

Drawing or photograph or visible interpretation). Criteria for forfeiting publications u/s 95 Cr.PC are that they

should be punishable u/s 124-A or 153-A or 1530B or 292 or 293 or 295-A IPC, the contents of which are

briefly as follows:-

Sec. 124-A IPC refers to amongst others any written matter bringing hatred or contempt or exciting

disaffection towards the Govt. of India.

Sec. 153-A IPC refers to among other things, any written matter promoting enmity between different groups

on grounds of religion, race, language etc.

Sec. 153-B IPC deals with imputations, and assertions prejudicial to national, integration.

Sec. 292 IPC provides penalty for the sale, import or export or advertisement of obscene books.

Sec. 293 IPC deals with sale or distribution of obscene objects to young person. Sec. 295-A IPC deals with

deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or

religious belief.

Legal formalities before, during & after search and seizure

1. Before search

a.The officer concerned should know the place to be searched thoroughly.

b.He should take search list forms, sealing wax, seal etc., with him.

c. He should take with him sufficient staff as may be required for the search.

d. Journeys to the place should be quick but at the same time he should not arouse suspicion in the

minds of the people of the locality.

e. On reaching the place he should mount the guard at the place of exit and entrance to prevent the

escape of the offender.

f. Two respectable persons of the locality or of any other locality who are willing to act as witnesses

should be invited to witness the search. The witnesses should be independent.

g. Before entering the house the Police Officer should disclose his identity and intimate the purpose and

the object of the search. The searching officer has the right to break open, if on demand, ingress

is not allowed.

h. All the members ;of the searching party should offer themselves to be searched by the occupant of the

house, who should be asked to take search of the witnesses also.

i. The Police Officer should not take unnecessary persons with him.

(2) During search

a. Residents of the house including the women folk should be asked to collect at one place but they should

never be out of sight.

b. At least one member of the house should remain present during the search.

c. Search should be taken in spiral methods, i.e., clockwise or anti-clockwise so that no place is left

unsearched.(This method is mainly intended for indoor searches. In this method, the term technique is utilized

with good results, although a lone searcher can also adopt this method. The searchers follow each other along

the path of a spiral form the door of a house and spiraling in towards the centre. This method ensures thorough

coverage of the area by more than one officer. If this system is used by only one officer, he might retrace his

path spirally, ensuring that the area has been covered twice).

d. The witnesses for search should not be left outside and they should remain present with the Police Officer

taking the search.

e. All possible places should be searched and newly excavated places should be carefully scrutinized.

f. While making the search the searching officer should remain alert and read the indications given by the

occupants of the house as sometimes the occupants go on gazing at a particular place where the property is

concealed or they keep moving in the same area.

g. When any property is recovered, it should be carefully noted, labeled and signed by the witnesses so that

subsequent identification may be made by them.

h. Search list should be prepared on the spot. It should be read and explained to the witnesses and their

attestation should be obtained thereon.

I A copy of the search list should be furnished to the house owner under proper acknowledgement.

J The searching officer should be very ethical during the search and should not plant any incriminating article

to fabricate evidence against any person. There are instances where the IOs have fabricated evidence by

planting incriminating articles.

3. After search

a. Before leaving the place, the Police party and the witnesses should offer themselves to be searched by the

occupant of the house and the property seized should also be shown to him.

b The record of the search should be sent to the concerned Magistrate immediately.

c. Disposal of the property All property seized under the panchanama by a Police Officer should he produced

before the Magistrate for enquiry or trial as the case may be. The property seized under Section 102 Cr.PC

should also be sent to the Court for disposal as deemed fit by the Court.

TOPIC 8

SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR

(S.106-116)

Security for Keeping the Peace on Conviction

By virtue of Section 106 (1) when a Court of Session or Court of a Magistrate of the First Class

convicts a person of any of the offences,

1. unlawful assembly,

2. rioting,

3. affray,

4. assault, criminal force or mischief,

5. criminal intimidation,

6. offence involving breach of peace, or of abetting any such offence and is of opinion that it is necessary to

take security from such person for keeping the peace, the Court may, at the time of passing sentence on such

person, order him to execute a bond, with or without sureties, for keeping the peace for such period, not

exceeding three years.

In Aruchami v. State of Kerala

, the court held that concealment of one’s presence when he has reason

to believe that he is doing so with a view to commit a cognisable offence would attract proceedings under the

Section 106

Security for Keeping the Peace in Other Cases

By virtue of S. 107 (1) when an Executive Magistrate receives information that any person is likely to

commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably

occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground

for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should

not be ordered to execute a bond, for keeping the peace for such period, not exceeding one year, as the

Magistrate thinks fit.

By virtue of S. 107 (2) proceeding under this Section may be taken before any Executive Magistrate

when either the place where the breach of the peace or disturbance is apprehended is within his local

2002(2) KLT 910.

jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or

disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.

In Modi v. State of U.P

, it was held that whether on an overall consideration of the facts available to

him by way of information he could form the opinion that the person against whom he was proposing to take

action under the Section 107 was likely to cause imminent breach of peace or disturb the public tranquillity.

Security for Good Behaviour from Persons Disseminating Seditious Matters

By virtue of S. 108(1) when a Judicial Magistrate of the First Class receives information that there is

within his local jurisdiction any person who, within or without such jurisdiction,

(i) either orally or in writing or in any other manner, intentionally disseminates or attempts to disseminate or

abets the dissemination of,

(a) any matter the publication of which is punishable under Section 124A or Section 153A or Section 153B or

Section 295A of the Indian Penal Code, or

(b) any matter concerning a Judge acting or purporting to act in the discharge of his official duties which

amounts to criminal intimidation or defamation under the Indian Penal Code,

(ii) makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes,

publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in

Section 292 of the Indian Penal Code,

(ii) and the Magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may, in the

manner hereinafter provided, require such person to show cause why he should not be ordered to execute a

bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the

Magistrate thinks fit.

By virtue S. 108 (2) no proceedings shall be taken under this Section against the editor, proprietor,

printer or publisher of any publication registered under, and edited, printed and published in conformity with,

the rules laid down in the Press and Registration of Books Act, 1867, with reference to any matter contained

in such publication except by the order or under the authority of the State Government or some officer

empowered by the State Government in this behalf.

Security for Good Behaviour from Suspected Persons

By virtue of S. 109 when a Judicial Magistrate of the First Class receives information that there is

within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to

believe that he is doing so with a view to commit a cognisable offence, the Magistrate may, in the manner

hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with

or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks

fit.

1983 A.C.C 220.

Security for Good Behaviour from Habitual Offenders

By virtue of S. 110, when a Judicial Magistrate of the First Class receives information that there is

within his local jurisdiction a person who

(a) is by habit a robber, house-breaker, thief, or forger, or

(b) is by habit a receiver of stolen property knowing the same to have been stolen, or

(d) habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping,

abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal

Code or under Section 489A, Section 489B, Section 489C or Section 489D of that Code, or

(e) habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the

peace, or

(f) habitually commits, or attempts to commit, or abets the commission of-

(i) any offence under one or more of the following Acts, namely:-

(a) The Drugs and Cosmetics Act, 1940;

(b) The Foreign Exchange Regulation Act, 1973;

(d) The Prevention of Food Adulteration Act, 1954;

(e) The Essential Commodities Act, 1955;

(f) The Untouchability (Offences ) Act, 1955;

(g) The Customs Act, 1962; or

(ii) any offence punishable under any other law providing for the prevention of hoarding or

profiteering or of adulteration of food or drugs or of corruption, or

(g) is so desperate and dangerous as to render his being at large without security hazardous to the community,

such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should

not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three

years, as the Magistrate thinks fit.

Order to be made

By virtue of S. 111, when a Magistrate acting under Section 107, Section 108, Section 109 or Section

110, deems it necessary to require any person to show cause under such section, he shall make an order in

writing, setting forth the substance of the information received, the amount of the bond to be executed, the

term for which it is to be in force, and the number, character and class of sureties (if any) required.

In Gauri Sanker v. State of U.P,

the Magistrate incorporated the substance of the information received

by him in the order itself passed under the S.111 of Cr.P.C. it is clear from the provisions of Section 111 that

if any proceedings Ss. 107, 108, 109 or 110 is instituted, the notice issued must satisfy the requirements of S.

111.

In Challa Somaiah v. State of Andhra Pradesh

, the notice under the S.111 should, therefore, be

accompanied by the preliminary order with all the particulars of this sec. the omission to record the

preliminary in the notice is illegal.

Procedure in Respect of Person in Court

By virtue of S. 112 if the person in respect of whom such order is made is present in Court, it shall be

read over to him, or, if he so desires, the substance thereof shall be explained to him.

Summons or Warrant in Case of Person not so Present

By virtue of S. 113 if such person is not present in Court, the Magistrate shall issue a summons

requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody

he is to bring him before the Court;

Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other

information, that there is reason to fear the commission of a breach of the peace, and that such breach of the

peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any

time issue a warrant for his arrest.

In Malathy v. State of Kerala

, the court held that recourse to Section 113 should not be permitted to be

used to wreck private vengeance and for settling private disputes.

Copy of Order to Accompany Summons or Warrant

By virtue of S. 114 every summons or warrant issued under Section 113, shall be accompanied by a

copy of the order made under Section 111, and such copy shall be delivered by the officer serving or

executing such summons or warrant to the person served with, or arrested under, the same.

Power to Dispense with Personal Attendance

1969 A.L.J.412.

1979 Cri.L.J.NOC 41.

2002(3) KLT SN 71.

By virtue of S. 115 the Magistrate may, if he sees sufficient cause, dispense with the personal

attendance of any person called upon to show cause why he should not be ordered to execute a bond for

keeping the peace or for good behaviour and may permit him to appear by a pleader.

Inquiry as to Truth of Information

By virtue of S.116 (1) when an order under Section 111 has been read or explained under Section 112 to

a person present in Court, or when any person appears or is brought before a Magistrate in compliance with,

or in execution of, a summons or warrant, issued under Section 113, the Magistrate shall proceed to inquire

into the truth of the information upon which action has been taken, and to take such further evidence as may

appear necessary.

By virtue of S.116 (2) such inquiry shall be made, as nearly as may be practicable, in the manner

hereinafter prescribed for conducting trial and recording evidence in summons-cases.

By virtue of S.116 (3) after the commencement, and before the completion, of the inquiry under sub-

Section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a

breach of the peace or disturbance of the public tranquillity or the commission of any offence or for the public

safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under

Section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining

good behaviour until the conclusion of the inquiry, and may detail him in custody until such bond is executed

or, in default of execution, until the inquiry is concluded:

Provided that no person against whom proceedings are not being taken under Section 108, Section 109,

or Section 110 shall be directed to execute a bond for maintaining good behaviour.

In Madhu Limaye v. S.D.M. Monghyr

, it has been laid down that the inquiry under the Section 117

Cr.P.C (old) corresponding to Section 116 (new) is to ascertain the truth of the necessary information. Sub-

sec. (1) contemplates an immediate inquiry into the truth of the information. It is pending the completion of

the inquiry that an interim bond can be asked for if immediate measures are necessary, in default it is

necessary to put the person in custody. If the Magistrate makes no effort to enquire in to the truth of the

allegations and adjourn the case say from day to day and yet to ask for an interim bond and places him in

custody for default it becomes entirely one-sided. It would be moving too far away from the guarantee of

freedom if the view were permitted that without any inquiry into the truth of the information sufficient to

make out a prima facie case a person is to be put in jeopardy of detention.

TOPIC 9

MAINTAINANCE OF WIFE, CHILDREN AND PARENTS

(Ss.125-128)

Introduction

This provision was added under the amended Code of Criminal Procedure 1973.

A.I.R.1971 S.C 2486.

1. “Suit under the civil law”

2. “Proceedings under the Cr.P.C- The Cr.P.C tries to give quick relief with least expenses to the persons to be

maintained.

If a person having sufficient means, neglects or refuses to maintain,

1. His wife who is unable to maintain herself.

In Smt. Yamuna Anantrao Adhar v. Anantrao Shiva Ram Yadhav

, it was held that the term ‘wife’

appearing in Sec.125 (1) of the Code means only a legally wedded wife.

In Mohd. Ahmed Khan v. Shah Bano Begum

, the court held that a Muslim husband having sufficient

means must provide maintenance to his divorced wife who is unable to maintain herself.

2. Legitimate or illegitimate child who has attained majority but suffers from physical or mental

abnormalities.

In Muhammed v. Kunhayisha

, the court held that major unmarried daughter whatever be her religion

cannot claim maintenance under Section 125 unless her inability to maintain herself is attributable to physical

or mental abnormality or injury.

In Jagadheesh Jugtawat v. Manjulatha

, the court held that though S.125 does not fix liability of

parents to maintain children beyond attainment of majority, but right of a minor girl for maintenance from

parents after attaining majority till her marriage is recognized under S.20(3) of Hindu Adoptions and

Maintenance Act.

3. Legitimate or illegitimate minor child unable to maintain oneself.

4. His father or mother unable to maintain himself or herself.

In Balan Nair v. Bhavani Amma Valsalamma & others

, Article 39 of the Constitution also can be

taken note of which states, inter alia, that the state shall, in particular, direct its policy towards securing that

the, citizens, men & women equality, have right to adequate means to livelihood that children are given

opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and the

childhood and youth are protected against exploitation and against moral and material abandonment.

A First Class Judicial Magistrate upon proof of such neglect of the above person can order a monthly

allowance for maintenance at a rate. The Magistrate may order the father of a minor female child to make

allowances until she attains majority and married.

It must be proved that the husband has sufficient means for paying the allowances. If there is no proof

of refusal or neglect of maintenance of wife, then there can be no allowance of maintenance. The term

“woman” under the provision includes both divorced and judicially separated females not yet remarried. The

maintenance amount is payable from the date of the order or from the date of application of maintenance. If a

person fails to pay the maintenance amount as ordered by the Magistrate, then he can be imprisoned under a

warrant under a term extending up to 1 month. If such person invites his wife to live with him and if there are

1983 Cri.L.J.259F.B.

1985 Cri.L.J 875 S.C.

2003 (3) KLT 106.

2002(5) SCC 422.

AIR 1987Kerala110: 1987Cri.L.J339FB.

reasonable grounds for her refusal, then order for payment of separate maintenance amount may be given by

the Magistrate.

In Rajadhi v. Ganesan

, the court held that second marriage or husband living with another wife failed

to prove second marriage and her complaint under S.494 IPC dismissed. Wife is entitled to live separately and

claim maintenance from husband. Even though wife was unable to prove that husband has remarried, yet the

fact remind that the husband was living with another women. That would entitle the wife to live separately

and would amount to neglect or refusal by the husband to maintain her. Statement of the wife that she is

unable to maintain herself would be enough and it would be for the husband to prove otherwise.

If the wife lives in adultery or wrongfully refuses to live with her husband or lives separately by mutual

consent, then the maintenance amount may not be granted. Proof of a single act of adultery is not sufficient to

disentitle the wife from getting her maintenance amount.

In Santha v. Narayanan

, the court held that a single act of unchaste will not disentitle the wife from

claiming maintenance from her husband.

In Mammad Kunhi v. Rukhia

, the court held that apart from showing that the husband has sufficient

means, it must further be shown that he neglects or refuses to maintain his wife. If a person is willing to

maintain his wife in accordance with his civil obligation, there is neither neglect nor refusal. Where a wife is

unreasonably refusing to live with her husband who is prepared to provide her with a matrimonial home, that

is a matter that must go in to reckoning in passing an order under S. 125 (1).

In Raman Pillai Vasudevan Nair v. Subhadra Amma Nirmala Devi

, the court held that marriage of a

woman, even if it is accordance with the Hindu rites with a man, having a spouse living at the time of the

marriage, is a nullity in the eye of law. The lady will not get the status of a legally wedded wife and

accordingly not entitle to the benefit of S. 125 of the code of criminal procedure.

However, the marriage must be legitimate and there must be proof of relationship of husband and wife.

During the maintenance proceedings, if the husband contents that his wife was of immoral character or he was

prepared to live with her, then the Magistrate should conduct an enquiry and cancel the order if the husband

succeeds. The maintenance of children is a statutory duty of the father. If the children are legitimate, even the

refusal of the mother to hand over the child to the father does not relieve him from getting maintenance.

Procedure for the Proceedings

By virtue of S.126 the proceedings may be taken against any person on any date where he is living or

where he or his wife is residing or where both have resided together last. The evidence must be taken in the

presence of the defendant. If the Magistrate is satisfied that such person wilfully, avoids the summons of the

court, then he may proceed exparte.

1999(3) KLT 872.

1999(1) KLT 688.

1978 Cri.L.J.1645, Kerala.

1998 Cri.L.J1274 Kerala High Court.

In Seerengan v. Selvi

, the court held that Magistrate is not competent to decide on the factum of

marriage like a civil court, in a petition under Section 125 CrPC.

In Sajitha v. State of Kerala

, the court held that the decision of the criminal court in criminal

proceedings will not operate as decisive in any civil proceedings between the parties regarding the paternity of

the child.

In Selvaraj v. Jayakumari

, the court held that in proceedings under S.125, the standard of proof for the

marriage is not so high as required in other proceedings.

In Rohtash Singh v. Ramandr

, the court held that the claim for maintenance under the first part of

S.125 CrPC is based on the subsistence of marriage while claim for maintenance of the divorced wife is

based on the foundation provided by explanation (b) to sub-section (1) of S.125 CrPC. If the divorced wife is

unable to maintain herself and if he she has not remarried, she will be entitle to maintain the allowance.

Alteration in Maintenance Allowances

By virtue S.127 the Magistrate may alter the maintenance allowance on proof of change in the

circumstances of any person.

If the divorced woman has been remarried or has obtained a whole sum from her husband, then the

maintenance allowances will be cancelled. The maintenance amount may also be reduced in proportion to the

decrease in the income of the maintenance given. Thus the provisions contemplate the existence of husband

and wife relationship is an essential requirement for an order of maintenance. Once such relationship ceases to

exist then the maintenance allowance is cancelled immediately. The decided cases have the following rules:

1. Refusal to stay with her husband, wife is not deprived of her right to maintenance.

2. Mere fact that the husband has contracted a second marriage or has kept a mistress is by itself not a valid

ground for claiming maintenance.

3. Justifiable ground for second wife to claim separate residence and maintenance under Hindu Woman’s right

to Separate Residence and Maintenance Act, 1945.

4. Husband habitually beating his wife is a good ground for wife to live separately and claim maintenance.

5. If a wife has been ill-treated and there is, ground for believing that if she returns, the ill-treatment will

continue, then the wife is entitled to live apart from her husband.

In Chandran v. Prakashan

, Justice M. Sasidharan Nambiar found that maintenance allowance agreed

and granted in Adalath is liable to be varied, modified or cancelled in an application under S. 127 Cr. P.C.

Persons Entitled to Maintenance

1. Wife;

2. A Muta wife;

3. Adi Dravidar Wife of a Naidu Husband;

2003(1) KLT SN 96.

2002(3) KLT 762.

2000(3) KLT 519.

2000(2) KLT SN 4.

2005 (3) KLT 810.

4. Muhammad wife during period of Iddat;

5. Abandoned wife;

6. A deaf and dumb child;

7. Son and daughter unable to maintain;

8. Both legitimate and illegitimate child unable to maintain oneself and parents unable to maintain are now

entitled to maintenance.

Persons not Entitled to Maintenance

1. Daughter-in-law;

2. Adopted child;

3. When father is separate;

4. Divorced wife after remarriage. If she is getting maintenance, it will be cancelled from the date of

remarriage;

5. Person taking custody of child.

TOPIC 10

PREVENTIVE ACTION BY THE POLICE

(S. 149-153)

Chapter IX of Cr.P.C deals with the preventive action by the police i.e. police has the duty to prevent

the commission of the crimes. Police has the duty to maintain law and order in the state. The following are

the preventive measures to be taken by the police.

1. By virtue of S. 149, it shall be the duty of every police officer to prevent the commission of any cognisable

offence.

2. By virtue of S. 150, it shall be the duty of every police officer to communicate any information, relating to

the commission of any cognisable offence to the higher officer.

3. By virtue of S.151, it shall be the duty of every police officer to effect any arrest without warrant to prevent

the commission of that crime. There must be an immediate necessity for the arrest. He must not detain such

arrested person more than 24 hours.

4. His power will include any action to prevent the destruction of any public property or any traffic sign.

5. The police officer has the power to seize any weights and measures or any instrument for weighing which

are false. No warrant is necessary. The facts of the seizure must be communicated to the Magistrate having

jurisdiction to try the case. In addition to the above measures, the police can take steps for keeping security

and good behaviour for keeping the law and order in the state.

TOPIC 11

INVESTIGATION, INQUIRY AND TRIAL

Investigation

Conducted by a police officer or any other person authorized other than a Magistrate. The Code does

not confer the power to investigate on every police officer. According to S.156, only an officer in charge of

police station (S.H.O) is empowered to investigate. It includes all the procedures under the Code for the

collection of evidence.

It consists of,

1. Proceedings of the place of offence;

2. Ascertainment of the facts and circumstances of the cases;

3. Discovery of evidence relating to the commission of the offence, which includes examination of persons

and reducing their statement into writing, search and seizure;

4. Discovery and Arrest of suspected person;

5. Forming an opinion that there is a fit case, if so take steps for filing a charge sheet S.173.

In Suresh Chand Jain v. State of M.P

, the court held that even if a Magistrate does not say in so many

words while directing investigation under S.156 (3) of the code that an F.I.R should be registered, it is the

duty of the officer in charge of the police station to register the F.I.R regarding the cognisable offence

disclosed by the complaint because that police officer could take further steps contemplated in chapter 12 of

the Code only there after.

In CBI v. Thomas

, the investigating officer under Section 173 can exercise the power conferred up on

the Magistrate under Section 156(3) even after submission of report. However, Magistrate cannot order fresh

investigation but further investigation.

In Krishnan v. State of Kerala

, the court held that even though Magistrate has no power to direct

police to stop the investigation or to conduct parallel inquiry under S.200 after forwarding the complaint under

S.156(3), when police officer takes a decision to close the investigation the Magistrate can take cognisance

and proceed to conduct the inquiry under S.200.

In Satheesh v. Enquiry Commissioner and Special Judge

, the court held that normally an order of the

criminal court under S.156 (3) directing the police to conduct investigation need not discuss the merits or

demerits of the case, though it is necessary to satisfy itself before issuing such an order that the allegations

constitute an offence.

Inquiry

Conducted by a Magistrate or court, is not a trial.

Trial

Narayana Swami vs. State of Karnataka.

2001(1) KLT 623.

2001 (2) KLT 349 .

29.2002(1) KLT 447.

2003 (3) KLT 480.

It is the judicial process according to law by which the guilt or innocence of accused is determined.

Where a Magistrate or court conducts an inquiry for deciding as to guilt or innocence of any person accused of

any offence, such an inquiry is a trial.

Inquiry and Investigation

Inquiry has been defined in S.2 (g) of the Code. It is as follows. Inquiry means every inquiry other

than a trial conducted under this code by a Magistrate or court. Investigation has been defined in Section 2(h),

which is as follows.

Investigations include all the proceedings under this code for the collection of evidence conducted by a

police officer or any person (other than a Magistrate) who is authorized by a Magistrate in his behalf.

There are three stages of a criminal case, inquiry, investigation and trial (I.I.T). The first stage

investigation is reached when a police officer either by himself or under orders of a Magistrate investigates

into a case.

When the information of a cognisable offence is received or it is suspected, the appropriate police

officer has the authority to take up the investigation of the same. When the information relates to a non-

cognisable offence the police officer will not investigate it without the order of a competent Magistrate.

The steps on the part of the police officer conducting investigation are ascertainment of the facts and

circumstances of the case, discovery and arrest of the suspected offenders, collection of evidence and

examination of various persons and formation of opinion as to whether there is a case to bring the accused

before the Magistrate before trial.

If he finds that no offence has been committed he reports the facts to a Magistrate who drops the

proceedings and the case comes to an end. If he is of the opinion that an offence has been committed, he takes

the necessary steps for the trial of the accused by filing a charge sheet before the Magistrate under S.173 of

the code.

In State of Kerala v. Sudheer

, the court held that special judge can direct further investigation by the

same agency in the corruption cases for ends of justice even though it cannot direct investigation by a

particular officer. This is the power vested with Magistrate under S.173 (8) of CrPC.

In Antony Scaria v. State of Kerala

, the court held that further investigation of the crime can be

conducted only by the agency which originally investigated the case. CBCID is not an agency different from

the local police and hence can conduct further investigation of the crime which had originally being

investigated by the local police.

In State of Kerala v. Chacko

, the court held that the investigation conducted by the crime branch

cannot be termed as further investigation. The crime branch of state police cannot be treated as a separate

agency. It is part and parcel of the police establishment of the state.

Thus begins the second stage of the case, which is either inquiry or trial. It includes everything done by

a Magistrate. The Magistrate may deal with the case himself and either convict the accused or discharge or

2003(1) KLT 840.

22.2001(2) KLT 93.

24. 2000(3) KLT SN 41.

acquit him. In cases of serious offences, the trial is before the Sessions Court, which may either discharge the

accused or convict or acquit him.

Distinction between Investigation and Inquiry

1. An investigation is made by a police officer or by some person authorized by a Magistrate but is never

made by a Magistrate or a court.

2. The object of an investigation is to collect evidence for the prosecution of the case while the object of an

inquiry is to determine the truth or falsity of certain facts with the view to taking further action thereon.

3. Investigation is the first stage of the case and usually precedes inquiry by a Magistrate.

TOPIC 12

COMMENCEMENT OF INVESTIGATION

(Ss. 154-176)

1. On information from any person regarding any cognisance of offence.

2. On any suspicious ground regarding any cognisance of offence.

3. On receiving any order to investigate from a Judicial Magistrate.

In non-cognisable offence if the Magistrate orders, police have all powers except arrest without warrant.

Only an officer in charge of a police station can investigate. An officer in the higher rank can also investigate.

Such officer may depute subordinates as prescribed by the State Govt.

Duty to Inform and Assist the Police

Every person should report to the authorities any information as to the commission of any offence.

But this duty is generally limited to offences given in S.39. Intentional omission to give such information

renders person liable to punishment under Ss.176 and 202 of the Penal Code. S.40 impose duty upon village

officers and village residents to give information regarding unnatural deaths, presence of any notorious

receiver or vendor of stolen goods, presence of thugs, escaped convicts, proclaimed offenders etc.

S.37 makes it obligatory to give reasonable assistance to police for:

a. Preventing the escape of the person to be arrested;

b. Suppressing breach of peace;

c. Prevention of any injury to any railway, canal, telegraph, or public property.

FIRST INFORMATION REPORT (FIR)

Definition of FIR

The phrase”First Information” has not been used in the Cr.PC 1973; but by practice, it has come to

mean the information given by any person to the police under Section 154 CrPC . FIR is the report prepared

by the officer in charge of the police station, on the basis of such information.

Sec 154 Cr PC reads:

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in

charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the

informant and every such information whether given in writing or reduced to writing, shall be signed by

the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such

form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded above shall be given forthwith, free of cost to the informant.

(3) Any person aggrieved by a refusal on the part of the officer in charge of a police station to record the

information, ,may send the substance of such information, in writing and by post, to the Superintendent of

Police concerned who, if satisfied, that such information discloses the commission of a cognizable

offence, shall either investigate the case himself or direct an investigation to be made by any police officer

subordinate to him, in the manner provided by this code, and such officer shall have all the powers of an

officer in charge of the police station in relation to that offence(see also, State of Haryana v/s Bhajan Lal,

AIR 1992 SC 604).On receipt of such information the officer in charge of a police station is legally

required to draw up a regular FIR in the form prescribed in KPF No 25 (see Rule 304(2), PSO vol II)

ESSENTIALS /INGREDIENTS OF FIR

1) It must be first in point of time.

2) It must be a responsible information; not vague.

3) It must relate to the commission of cognizable offence.

4) It must be given to an officer in charge of a police station.

5) It must be reduced to writing, if given orally.

6) It should be signed by the informant(Refusal to sign the report is punishable u/s 180 IPC)

7) It should be read over to the informant.

8) The gist of the information should be entered in the station GD.

9) The copy should be given forthwith free of cost to the informant.

10) The original FIR shall be sent to the Magistrate having jurisdiction.

FIR AND COMPLAINT : DIFFERENCES

The criminal law can be set into motion by two ways:

1. By filing a complaint before the Magistrate (under Section 190 Cr.P.C)., and

2. By giving information to the police (under Section 154 Cr.PC )thus Complaint and FIR sets the

Criminal Law in motion. But there are some differences between the two:

Complaint is before the Magistrate; FIR is before the Police. Information can be given to the police by

any person, but in the case of certain offences, a complaint can be made only by certain persons (see Sec.195

to 199 Cr.PC).

FIR empowers the police to start investigation in case of any cognizable offence, but a Magistrate can

take cognizance only on the complaint and not on FIR (Sec.190 Cr.PC)

IMPORTANCE OF FIR

Great importance is attached to the FIR by the courts for the following reasons:

1. It is usually the information given immediately after the occurrence when memory is fresh with no

scope for fabrication on the part of the person giving it.

2. There is also no chance for interested persons to interfere in the matter and fabricate or concoct any

stories.

3. It is the first record of the case made immediately after the occurrence and before the investigation

starts.

4. It indicates the version of the given case at the very outset, the facts of the case recalled

immediately after the occurrence and the material on which the investigation originally started. Chances

of making mistakes are less.

EVIDENTIARY VALUE OF FIR

The FIR is filed by the informant while giving evidence. But it is not a substantive evidence like dying

declaration, judicial confession etc. However, it can be used to corroborate the testimony of the person who

had given ( it u/s 157 Indian Evidence Act). The defence could also use it to contradict or impeach him(u/s

155 IEA.)(see alos, Parameswaran V. Kerala, 2004(2)KLT SN 124).

HOW TO RECORD FIR?

o If the information is given orally, it should be recorded in plain and simple languague as nearly

as possible in the informant’s own words. Technical or legal expressions, highflown languague or lengthy

sentences should not be used. No oath should be administered to the informant but the statement should

be read over to him and he should sign it or affix his thumb impression to it. The report should show that

this has been done.

 If it is received in writing, it need only be attached to that copy of the FIR form which is to be sent to

the court.

 The practice of sending away a complainant who wishes to make an oral report, to go and bring a

written one should be strongly discouraged. The officer in charge must be made to fulfil his responsibility

in this regard. Another common practice of HCs or ASI s temporarily in charge, deferring the

registration of the FIR till the return of the senior most officer to the station should also be watched for

and discouraged.

 Various columns of the FIR form should be filled in and signed by the officer in charge. The narrative

statement should be signed by the informant first and then by the officer recording it.

 Each report should bear a consecutive number in the order of its arrival at the police station. The report

first received at the police station no matter when the crime occurred, after midnight on the morning of the

first day of the year shall be numbered I. A reference to such a report should always be made in the station

GD.

 FIR should be promptly recorded as any delay leads to suspicion and vitiates the FIR. Note the time at

which recording of FIR is done. If there is any delay in recording FIR, it should be explained.

 The promptness with which the FIR is lodged justifies the inference that the report is not a concocted

story(1946 Cr LJ 526) Delay is viewed with suspicion unless the explanation is plausible. The following

are the usual reasons for delayed information:

 Physical: The informer may be sick or old or cripple or might be suffering from defective eye sight.

1. Geographical: The distance might be long, the roads may be bad and rocky through forests,

unavoidable rivers etc.

2. Seasonal- There might be heavy rains or storm etc.

3. Psychological: People may be ignorant about the need to report the matter to the police.

4. Circumstantial: Sometimes the offence might not have been noticed for several days and even if

noticed people might not show any interest in the offence.

 Accuracy is the watchword. FIR is not an encyclopaedia and hence it need not be detailed; but

necessary particulars shall not be omitted.

 Time of occurrence should be noted. If the villagers do not have clocks or watches, by tactful

questioning the actual time may be arrived at. For example, the cock-crow hour, the position of the sun or

the time when some important train passed that way etc.

 Modus operandi should be elicited and mentioned in the FIR.

 Neither minimize nor exaggerate the facts of the occurrence. Be factful and truthful in recording

them. Preparation of incorrect record is punishable u/s 218 IPC.

 Do not interpolate or insert anything such as time, date etc, after the FIR has been written. A

first information report is a most important document and often forms the basis of the case for the

prosecution. Care should, therefore be taken to avoid all additions, alterations etc. If unavoidable, they

must always be initialed and dated. Such corrections, if any, must be made before the FIR has been signed

by the informant.

 Avoid scoring out what has been written in the FIR. In unavoidable circumstances a line should

be drawn across the words to be scored out still keeping it legible and the officer recording the FIR should

initial it there.

 The writing, size of letters, paragraphing etc, should be uniform throughout.

 Note the injuries found on the person of informant or witnesses and mention the same in FIR.

 Value of property should be mentioned correctly as per claim of the informant as stolen or

destroyed. Do not lessen the value. The special identifying marks, if any, on any item or items of stolen

property, together with their detailed description ,value, etc should be clearly noted. The complainant

should be asked to furnish a full list of the stolen property. If he is unable to do so, the reason should be

recorded.

 By tactful questioning, the identity of the accused, the type of weapon used, if any, languague

spoken etc should be elicited and mentioned in the FIR. The circumstances of identification must be

clearly brought out. eg the condition of the light, the line of visibility and the distance from which

identification was made. The names of the suspects, if any or any accused recognized during the

occurrence should be specified. If a particular person be suspected, the facts on which the suspicion is

based should be clearly set down. The informant should be required to distinguish between what he

professes to know personally and what he heard.

 The names of the eye witnesses and those to whom the complainant or informant reported the

names of the accused immediately after the occurrence should be obtained and recorded for purposes of

corroboration. If no information is available in the FIR on those points, the defence may characterize any

subsequent information on the point as fabrication of afterthought.

 The informant need not have direct personal knowledge of the incident reported by him. When

hearsay information definitely reveals the commission of a cognizable offence, the officer in charge

should record it at once and not wait for the statement of the aggrieved person or an eye witness. Whether

the informant has personal knowledge of the occurrence or only hearsay information about it should be

clearly indicated when recording the report.

 No FIR should be started on the basis of a vague rumour which should rightly be recorded in the

GD. Subsequent credible information may be treated as the FIR. There is however nothing to prevent the

police from following up a rumour, particularly if it relates to any serious crime or situation.(sec 23 of the

police Act; State v/s Jaipal, AIR 2004 SC 2684).

 Sec 154 CrPc requires the informant to affix his signature or thumb impression on the first

information given by him. If therefore in the opinion of an officer receiving the telegram or telephone

message reporting the occurrence of a cognizable offence, the circumstances justify immediate action, he

should himself lodge an FIR on the basis of the telegram or telephone message. The person making the

telephone call should be asked to confirm it in person or writing. In any case a GD entry is necessary.

 A police officer should not defer drawing up the FIR until he has verified the truth of the

complaint. If a person deliberately gives false information in regard to a cognizable oggence, the

informant is liable for prosecution under sec 182 or 211 IPC. But that is no justification for not recording

the FIR.

 A police officer has power to refuse investigation in a cognizable case(Sec 157 (1) (b) CrPC)

.but he has no power to refuse the registration of a cognizable crime under sec 154 CrPC.(Ramesh Kumari

v/s State,2006(2) KLT 404(SC))

 If the accused himself gives information of the offence, the officer in charge must record it. Any

confession which may form part of such an FIR will not be admissible in evidence (section 25 of IEA) but

those facts which show the motive, preparation or oppourtunity for the crime or give information leading

to the discovery of a fact, can certainly be proved on behalf of the prosecution(sec 7,8 and 27 of the IEA).

 When a magistrate directs the police to investigate a complaint or a cognizable case filed before

him and in regard to which no previous information has been given to the police, the written information

sent by the Magistrate should be treated as the basis of the FIR.

Suo-motto registration of FIR u/s 157 Cr.P.C:

Following are some of the instances in which police officers have to prepare FIRs on their own initiative and

have to play the part of the complainant.

1. When they receive secret, anonymous, telegraphic and telephonic information about the commission of

a cognizable offence.

2. When they get some direct knowledge about the commission of a cognizable offence.

3. When an occurrence of cognizable offence is exclusively detected by them.

4. When a cognizable offence is committed in their very presence.

TOPIC 13

PRESENCE OF WITNESS--POWER OF POLICE

(S.160 (1))

Police may by an order, require the attendance before himself, of any person if the following conditions

are fulfilled.

1. The order must be in writing.

2. To the person who appears to be acquainted with the facts and circumstances of the case.

3. The person must be within the limits of the police station or limits of any adjoining station.

It is to be noted that if a person below 15 years of age or a woman at their residence does not comply,

the investigating officer has no authority to use power to detain or arrest. However omission is liable to be

punished. Any person, who intentionally omits to attend as required by the investigating officer, is liable to be

punished under S.174 of IPC.

Power to Interrogate and Record Statements

Other than self-incriminatory answers, the person committing it shall sign statements.

By virtue of S. 161(1) any police officer making an investigation, or any police officer not below such

rank as the State Government may, by general or special order, prescribe in this behalf, acting on the

requisition of such officer, may examine orally any person supposed to be acquainted with the facts and

circumstances of the case.

By virtue of S. 161(2) such person shall be bound to answer truly all questions relating to such case put

to him by such officer, other than questions the answers to which would have a tendency to expose him to a

criminal charge or to a penalty or forfeiture.

By virtue of S. 161(3) the police officer may reduce into writing any statement made to him in the

course of an examination under this section; and if he does so, he shall make a separate and true record of the

statement of each such person, whose statement he records.

In order to ensure the statements made to the police during investigation are not affected by fear or

favour, it has been provided that no police officer or other person in authority shall offer or make, or cause to

be offered or made, any such inducement, threat or promise as is mentioned in Section 24 of the Indian

Evidence Act, 1872. However S. 163 provides that no police officer or other person shall prevent, by any

caution or otherwise, any person from making in the course of any investigation under this chapter any

statement which he may be disposed to make of his own free will.

Evidentiary Value

Statements made to the police cannot be considered as substantive evidence, because it is not given on

oath nor is it tested to cross-examination and not made during trial. Admitted to corroborate only. Statement

amounting to a confession before the Police cannot be proved against the accused except under Section 27 of

the Evidence Act. Corroborative value and delay in lodging the F.I.R statement can be used for contradiction

also.

In Mahabir Singh v. State of Haryana, the court held that accused himself can appear before Magistrate.

The police for recording confession need not produce him. However appearance of accused must be “in the

course of investigation” under chapter 12 of the Code.

By virtue of S.162 (1) no statement made by any person to a police officer in the course of an

investigation shall, if reduced to writing, be signed by the person making it; nor shall any such statement or

any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for

2001(3) KLT SN 72.

any purpose, at any inquiry or trial in respect of any offence under investigation at the time when such

statement was made.

When any witness is called for the prosecution in such inquiry or trial whose statement has been

reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and

with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by

Section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part

thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any

matter referred to in his cross-examination.

Inquest by Police

S. 174 deals with inquest report. When the officer receives any information to the effect that a person

has committed suicide or has been killed by another or by machinery or by an accident or dies under

suspicious circumstances, such police officer must intimate the facts to the nearest District Executive

Magistrate. Such police officer shall proceed to the spot and must make a report in the presence of two

respectable inhabitants of the locality.

In State of Kerala v. K.M.Iddinkunhi

and others, the court held that proceedings under S.174 have a

limited scope. It is not necessary to give details of the incident in the inquest report. Object is only to ascertain

whether a person has died under suspicious circumstances and to ascertain apparently, the cause of death.

TOPIC 14

POWER OF JUDICIAL MAGISTRATE TO RECORD CONFESSIONS AND STATEMENTS

(S.164)

Confession is not defined in the Cr.P.C. Confession is a statement made by an accused person before a

judicial officer. According to Stephen’s Digest on Law of Evidence, confession is an admission of guilt. He

must voluntarily make it. Therefore, confession may be defined as a voluntary statement admitting the guilt.

The court will consider only the culpatory part of the confession.

S. 162 of the Cr.P.C. deals with the rules relating to the recording of confession. Confession is strong

evidence against the accused person. The following are the rules connected with it.

1. The statement must be made by an accused;

2. It must be made before the judicial officer;

3. It must be voluntary;

4. Before recording the confession, the judge must follow a special procedure. He must make a statutory

warning stating that the accused is not bound to make such a statement. But if the Magistrate is satisfied that

the accused is making a voluntary statement, it can be recorded. The Magistrate must record the statement

only in the manner stated by the accused;

Section 162(2).

ILR 2002(1) Ker 509.

5. The judicial officer shall affix the seal of the court and it must be dated and signed;

6. The accused must also sign the statement after reading it;

7. In the case of an illiterate accused, the statement must be read over to him;

8. Adequate time to think and reflect must be given and has to make sure that the mind of the person is

completely free from any possible police influence. He must be sent to judicial custody before making

confession. The confession must be made in open court, during court hours. The Magistrate must write it

down. The person making confession shall sign the confession statement. After this, the statement must be

send to the trial court.

In Rajendra Panicker v. State of Kerala

, the court held that extra judicial confession if voluntary and

true and made in fit state of mind can be relied up on by the court.

By virtue of S.164 (1) any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has

jurisdiction in the case, record any confession or statement made to him in the course of an investigation under

this Chapter or under any other law for the time being in force, or at any time afterwards before the

commencement of the inquiry or trial provided that no confession shall be recorded by a police officer on

whom any power of a Magistrate has been conferred under any law for the time being in force.

By virtue of S.164 (2) the Magistrate shall, before recording any such confession, explain to the

person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence

against him; and the Magistrate shall not record any such confession unless, upon questioning the person

making it, he has reason to believe that it is being made voluntarily.

By virtue of S 164 (3) if at any time before the confession is recorded, the person appearing before the

Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention

of such person in police custody.

By virtue of S. 164 (4) any such confession shall be recorded in the manner provided in Section 281 for

recording the examination of an accused person and shall be signed by the person making the confession; and

the Magistrate shall make a memorandum at the foot of such record.

By virtue of S. 164 (5) any statement (other than a confession) shall be recorded in such manner

hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the

circumstances of the case; and the Magistrate shall have power to administer oath to the person whose

statement is so recorded.

By virtue of S. 164 (6) the Magistrate recording a confession or statement under this Section shall

forward it to the Magistrate by whom the case is to be inquired into or tried.

TOPIC 15

PROCEDURE WHEN INVESTIGATION CANNOT

BE COMPLETED WITHIN 24 HOURS (S. 167)

ILR 2000(2) Ker 297.

By virtue of S.167 (1) if any person is arrested and detained in custody, and it appears that the

investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are

grounds for believing that the accusation or information is well-founded, S.H.O or the police officer making

the investigation, if he is not below the rank of sub-inspector, shall send a copy of the entries in the diary to

the nearest J. M, and shall at the same time forward the accused to such Magistrate.

According to S. 167(2) the Magistrate to whom an accused person is forwarded may, whether he has or

has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as

such Magistrate thinks fit, for a term not exceeding 15days in the whole; and if he has no jurisdiction to try the

case or commit it for trial, and considers further detention unnecessary, he may order the accused to be

forwarded to a Magistrate having such jurisdiction: Provided that-

(a) the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the

police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but

no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a

total period exceeding-

(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life

or imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other offence,

and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall

be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-

section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that

Chapter.

(b) Magistrate shall not authorise detention in custody unless the accused is produced before him;

authorise detention in the custody of the police.

According to S. 167(3) a Magistrate authorising under this Section detention in the custody of the police

shall record his reasons for so doing. .

According to S. 167(4) any Magistrate other than the Chief Judicial Magistrate making such order shall

forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate.

According to S. 167(5) if in any case triable by a Magistrate as a summons-case, the investigation is not

concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall

make an order stopping further investigation into the offence unless the officer making the investigation

satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the

investigation beyond the period of six months is necessary. .

According to S. 167(6) where any order stopping further investigation into an offence has been made

the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further

investigation into the offence ought to be made, he may direct further investigation to be made into the

offence subject to such directions with regard to bail and other matters as he may specify.

TOPIC 16

PROCEDURE TO BE FOLLOWED ON COMPLETION OF INVESTIGATION

(Ss.169-173)

1. Release of Accused When Evidence is Deficient

By virtue of S. 169, if, upon an investigation under this Chapter, it appears to the officer in charge of the

police station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding

of the accused to a Magistrate, such officer shall, if such person is in custody, release him on executing a

bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a

Magistrate empowered to take cognisance of the offence on a police report, and to try the accused or commit

him for trial.

2. Cases to be sent to Magistrate when Evidence is Sufficient

(a) By virtue of S.170 (1) if upon an investigation under this Chapter, it appears to the officer in charge

of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall

forward the accused under custody to a Magistrate empowered to take cognisance of the offence upon a police

report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to

give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his

attendance from day to day before such Magistrate until otherwise directed.

(b) In the situation mentioned above, S.H.O shall send to such Magistrate any weapon or other article

which it may be necessary to produce before him, and shall require the complainant and so many of the

persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may

think necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or give

evidence (as the case may be) in the matter of the charge against the accused.

As long as, if any complainant

or witness refuses to attend or to execute a bond as directed in Section 170, the officer in charge of the police

station may forward him in custody to the Magistrate, who may detain him in custody until he executes such

bond, or until the hearing of the case is completed.

3. Report of Police Officer on Completion of Investigation:

Section 170(2).

Section 171.

By virtue of S.173 (1) every investigation is required to be completed without unnecessary delay. As

soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to

take cognisance of the offence on a police report, a report in the form prescribed by the State Government.

When such report is in respect of a case to which Section 170 applies, the police officer shall forward to the

Magistrate along with the report;

(a) all documents or relevant extracts thereof on, which the prosecution proposes to rely other than, those

already sent to the Magistrate during investigation. .

(b) the statements recorded under Section 161 of all the persons whom the prosecution proposes to examine as

its witnesses.

By virtue of S.173 (6), if the police officer is of opinion that any part of any such statement is not

relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the

interest of justice and is inexpedient in the public interest, he shall indicate that part of the statement and

append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and

stating his reasons for making such request.

According to S.173 (7) where the police officer investigating the case finds it convenient to do so, he

may furnish to the accused copies of all or any of the documents referred to in S.173 (5).

4. Supplementary Report on Further Investigation:

Nothing in this section shall preclude further investigation in respect of an offence after a report under

S.173 (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of

the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further

report or reports regarding such evidence in the form prescribed.

TOPIC 17

MAINTENANCE OF DAIRY

(S.172)

Case Diary is a diary maintained in chronological order. A criminal court can send for police diary.

Every police officer making an investigation shall day-by-day enter his proceedings in the investigation in a

diary, setting forth the time at which the information reached him, the time at which he began and closed his

investigation, the place or places visited by him, and a statement of the circumstances ascertained through his

investigation.

By virtue of S. 172 (2) any Criminal Court can send for the police diaries of a case under inquiry or trial

in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to

see them merely because they are referred to by the Court; but, if they are used by the police officer who made

Section 173 (5).

Section 173 (8).

Section 172 (1).

them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the

provisions of Section 161 or Section 145 as the case may be, of the Indian Evidence Act, 1872, shall apply S.

172 (3).

TOPIC 18

JURISDICTION OF THE CRIMINAL COURTS

(Ss. 177-189)

By virtue of S.177 every offence shall ordinarily be inquired into and tried by a Court within whose

local jurisdiction it was committed. Any officer in charge of a police station may, without the order of a

Magistrate, investigate any cognisable case which a Court having jurisdiction over the local area within the

limits of such station would have power to inquire into or try under S. 156 (1).

Special Provisions Providing for Alternate Venues

By virtue of S.178 in each of the following cases, the offence may be inquired or tried by a Court

having jurisdiction over any of such local areas.

(1) If it is uncertain in which of several local areas an offence was committed;

(2) Where, offence is committed partly in one local area and partly in another;

(3) Where an offence is a continuing one, and continues to be committed in more local areas than one;

(4) Where it consists of several acts done in different local areas;

(5) When an act is an offence by reason of anything, which has been done, and of a consequence, which has

ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has

been done or such consequence has ensued;

(6) When an act is an offence by reason of its relation to any other act which is also an offence or which

would be an offence if the doer were capable of committing an offence, the first-mentioned offence may be

inquired into or tried by a Court within whose local jurisdiction either act was done.

Place of Trial In Case Of Certain Offences

1. A Thug, Murder Dacoity, Escape from Custody

S. 181 provides that any offence of the thug, or murder committed by a thug or a dacoity, or a dacoity

with murder, or belongings to a gang of dacoits or of escaping from custody, may be inquired into or tried by

a court within whose local jurisdiction the offence was committed or the accused person is found.

Section 178 (a).

Section 178 (b).

Section 178 (c).

Section 178 (d).

Section 179.

Section 180.

Illustration

A, a thug committed a murder within a local jurisdiction of court X, but he has been found within the

local jurisdiction of the court Y. The inquiry and trial in connection with the offence may be held either in the

court X or Y.

2. Kidnapping or abduction.

By virtue of S. 181(2) any offence or kidnapping of a person may be inquired into or tried by a court

within whose local jurisdiction the person was kidnapped or abducted or was conveyed or concealed or

detained

. The accused with the intention of raping a girl kidnapped her from X and actually committed rape

at Y. Here the offence of kidnapping is completed at X. So the suit can be filed at X (the rape cannot be

treated as a consequence of kidnapping). S. 181 (2) provides for the place of inquiry of trial in cases where an

act is an offence by reason of its relation to the other offence.

3. Thefts, Extortion or Robbery

By virtue of S. 181(3) any offence of theft, extortion or robbery may be inquired into or tried by a Court

within whose local jurisdiction the offence was committed or the stolen property which is the subject of the

offence was possessed by any person committing it or by any person who received or retained such property

knowing or having reason to believe it to be stolen property.

Illustration

‘A’ commits theft at Allahabad and sells the stolen property partly at Gorakhpur and partly at Banaras.

A may be tried at any one of these three places.

4. Criminal Misappropriations or Criminal Breach of Trust

According to S.181 (4) criminal misappropriation or criminal breach of trust may be inquired into or

tried by a court within whose local jurisdiction the offences committed. Of any part of the property which is

the subject of the offence was received or retained or was required to be returned or accounted, by the accused

person.

Illustration

‘A’ entrusted a cycle to his servant ‘B’. ‘B’ sold the cycle at Allahabad and with the sale proceeds went

away to Delhi. The offence may be inquired into or tried at any of these 3 places.

5. Any Offence Regarding Possession of Stolen Property

Any offence which includes the possession of stolen property may be inquired into or tried by court

within whose local jurisdiction the offence committed or the stolen property was possessed by any person who

received or retained knowing or having reason to believe it to be stolen property.

Illustration

‘A’ while going on a long journey, entrusted his motorcar to a friend ‘B’ at Allahabad. After ‘A’ had

left ‘B’ took the car to Delhi and kept it with ‘C’ with the intention of not returning of back to ‘A’. ‘C’ knows

that the car belong to ‘A’ and he also knew the intention of ‘B’ and knowing all this, he received the car. The

case may be tried either at Allahabad or at Delhi.

1. Offences Committed By Letters, etc

Section 181 (2).

By virtue of S.182 (1) offence committed by letters etc be tried into and inquired,

1 either by the court within whose local jurisdiction the letter or message was sent or

2 By the court within the local jurisdiction, the letter or message was received

Illustration

‘A’ wrote a letter to ‘B’ from Allahabad misrepresenting himself to be an agent for certain firm and on

that basis received certain advances from him. B received the said letter in Calcutta. The Cognisable offence

may be tried either at Allahabad or at Calcutta. This Section Provides also for the place of enquiry or trial of

any offence punishable under Section 494 or 495 of the IPC. It says that these offences may be inquired into

or tried;

1. either by a court within whose local jurisdiction the offence was committed;

2. by a court whose local jurisdiction the offender last resided with his or her spouse by the first

marriage;

3. the place of permanent residence of the women after offence .

6. Possession of Stolen Property

By virtue of S. 181(5) any offence, which includes the possession of stolen property, may be inquired

into or tried by a Court within whose local jurisdiction the offence was committed or any person who received

or retained it knowing or having reason to believe it to be stolen property, possessed the stolen property.

7. Bigamy

Any offence punishable under Section 494 or Section 495 of the Indian Penal Code may be inquired

into or tried by a Court within whose local jurisdiction the offence was committed or the offender last resided

with his or her spouse by the first marriage.

8. Offence Committed On Journey or Voyage (Section 183)

By virtue of S. 183 if an offence is committed with respect to a person or a thing while that person or

thing is in the course of performing a journey or voyage, the offence may be inquired into or tried by a court

through or into whose local jurisdiction that person or thing passed in the course of voyage.

Illustration

A was travelling in a train from Delhi to Allahabad. In the course of performing the journey B caused

grievous hurt to him. The offence may be inquired into or tried in any court, through whose local jurisdiction

has passed.

9. Offence Committed Outside India

Section 188 of the Criminal Procedure Code provides for the place of trial of offence committed beyond

India. This Section specifies two cases in which a person is tried for offences committed out of India.

1. When an Indian citizen commits an offence in any place without and beyond India, whether or on the high

seas or elsewhere or,

2. By virtue of S. 188 when any person not being an Indian citizen commits an offence on any ship or an

aircraft registered in India, such offences shall be considered as if it had been committed at any place within

India at which he may be found.

By virtue of S.189 when any offence alleged to have been committed in a territory outside India is being

inquired into or tried under the provisions of Section 188, the Central Government may, if it thinks fit, direct

that copies of depositions made or exhibits produced before a Judicial officer in or for that territory or before a

diplomatic or consular representative of India in or for that territory shall be received as evidence by the Court

holding such inquiry or trial. Such direction can be given in any case in which such Court might issue a

commission for taking evidence as to the matters to which such depositions or exhibits relate.

10. Joinder of Charges and Joinder of Offenders

Where- (a) the offences committed by any person are such that he may be charged with, and tried at one trial

for, each such offence by virtue of the provisions of Section 219, Section 220 or Section 221;

(b) The offence or offences committed by several persons are such that they may be charged with and

tried together by virtue of the provisions of Section 223; the offences may be inquired into or tried by any

Court competent to inquire into or try and of the offences:

11. Power of the State to Order Cases to be Tried in Different Sessions Divisions

By virtue of S.185the State Government may direct that any cases or class of cases committed for trial

in any district may be tried in any sessions division, Provided that such direction is not repugnant to any

direction previously issued by the High Court or the Supreme Court under the Constitution, or under this Code

or any other law for the time being in force.

12. High Courts Power to Decide, in Case of Doubt, District Where Inquiry or Trial Shall Take Place.

Where two or more Courts have taken cognisance of the same offence and a question arises as to which

of them ought to inquire into or try that offence, the question shall be decided,

1. if the Courts are subordinate to the same High Court, by that High Court;

2. if the Courts are not subordinate to the same High Court, by the High Court within the local limits of whose

appellate criminal jurisdiction the proceedings were first commenced, and thereupon all other proceedings in

respect of that offence shall be discontinued.

13. Power to Issue Summons or Warrant for Offence Committed Beyond Local Jurisdiction

By virtue of S. 187(1) when a Magistrate of the First Class sees reason to believe that any person within

his local jurisdiction has committed an offence outside such jurisdiction (whether within or outside India) an

offence which cannot, under the provisions of Sections 177 to 185 (both inclusive), or any other law for the

time being in force, be inquired into or tried within such jurisdiction but is under some law for the time being

in force triable in India, such Magistrate may inquire into the offence as if it had been committed within such

local jurisdiction and compel such person in the manner hereinbefore provided to appear before him, and send

such person to the Magistrate having jurisdiction to inquire into or try such offence, or, if such offence is not

punishable with death or imprisonment for life and such person is ready and willing to give bail to the

satisfaction of the Magistrate acting under this section, take a bond with or without sureties for his appearance

before the Magistrate having such jurisdiction.

Section 184.

Section 186.

By virtue S 187(2) when there are more Magistrates than one having such jurisdiction and the

Magistrate acting under this section cannot satisfy himself as to the Magistrate to or before whom such person

should be sent or bound to appear, the case shall be reported for the orders of the High Court.

TOPIC 19

COGNISANCE OF OFFENCES

(S.190-199)

After the investigation is completed, the police officer has to forward the final report to a competent

Magistrate, which marks the beginning of trial proceeding. Cognisance literally means “Knowledge or

notice”, and taking cognisance means “taking notice”, or becoming aware of alleged commission of an

offence. Taking cognisance is the first and foremost step towards trial.

In Nitin Jairam Gadkari v. State of Maharashtra & anr

, it was observed that “Taking cognisance,”

means judicial application of mind by the Magistrate to the facts mentioned in the complaint with a view to

taking further action.

In Harbhajan Singh v. State of M.P.

, it was held that mere examination of complainant does not mean

that Magistrate has taken cognisance in a case filed upon complaint. It is to be noted that any Magistrate may

order police officer to investigate or issue search warrant and in such a case he cannot be said to have taken

cognisance of the offence

Courts Empowered to Take Cognisance

1. Section 190 (1) of the Code provides that, any Magistrate of the first class;

2. Section 190 (2) of the Code provides that any Magistrate of the second class may take cognisance if

specially empowered by C.J.M;

3, Though cases against scheduled castes and scheduled tribes are exclusively triable by special courts, in

Bhura Lal’s case

, court held that at a pre-trial stage special court as well as court of Magistrate have

jurisdiction under Section 190.

2005(1) Criminal Court Cases 76 (Bombay).

2002(1) Criminal Court Cases 286 (M.P.).

Section 153 (3).

1999, Cri.L.J. 3552.Bhura Lal v. State.

Power of Sessions Court to Take Cognisance

By virtue of Section 193, a Court of Sessions shall not take cognisance of any offence as a court of

original jurisdiction unless a Magistrate has committed the case to it.

However it has been specifically provided by Section 199(2) of the Code that when an offence of

defamation of high dignitaries like, the President of India, the Vice-President of India, the Governor of a State,

the Administrator of a Union territory or a Minister of the Union or of a State or of a Union territory, or any

other public servant employed in relation to affairs of the Union or of a State in respect of his conduct in the

discharge of his public functions. A Court of Sessions may take cognisance of such offence, without the case

being committed to it, upon a complaint in writing made by the Public Prosecutor with in 6 months from the

date on which alleged offence have been committed.

Cognisance when taken

Section 190(1) of the Code provides that a Magistrate may take cognisance of any offence up on;

1. Receiving a complaint of facts, which constitute such offence. The object is to give the aggrieved

person the right to approach the Magistrate directly if the police do not take action or he has a reason to

believe so;

In Jagdish Ram v. State of Rajasthan and Anr,

cognisance was taken by Magistrate upon a private

complaint. It was sent to police for investigation and after investigation, final report was sent stating

complaint to be false. Magistrate still took the cognisance. It was observed that Magistrate could take

cognisance of offence. The investigation is the exclusive domain of the police and taking cognisance of the

offence is an area exclusively within the domain of a Magistrate. While taking cognisance, prima facie case is

to be seen and sufficient evidence or grounds leading to conviction not main factor, as they have to be seen at

the time of trial and not at the time of inquiry.

2. A police report of such facts. The Magistrate has the power to take cognisance under Section 190(1)(b)

irrespective of the opinion of investigating officer that there is no prima facia case.

In Pradum Narain Pandey v. Stateof U.P,

it was held that it is open to Magistrate to take cognisance

of an offence even after accepting final report.

In Gangadhar Janardan Mhatre v. State of Maharashtra & Ors

, it was observed that Magistrate can

take cognisance under Section 190(1)(b) even if the police report articulates that there is no case, made out

against accused.

3. Information received from any person other than a police officer, or upon his own knowledge (suo

moto), that such offence has been committed. The expression ‘other than a police officer’ includes customs

officers, labour officers, excise officers etc.

In Mohammad Safi's case,

court held that the court could take cognisance only when aforementioned

conditions are fulfilled.

2004(2) Criminal Court Cases 520 (S.C.).

1968 A.I.R.

2005(1) Criminal Court Cases 210 (S.C.).

1966 AIR SC 69.

Further, in Sridhar Jena & Anr. v. State of Orissa

, Magistrate is well within his jurisdiction to take

cognisance of offence not included in charge sheet by exercising power under Section 190(1)(c).

However, Section 460(e) of the Code provides that if the Magistrate not empowered by law takes

cognisance of the offence on a complaint or a police report, erroneously takes cognisance of the offence in

good faith, his proceedings will be irregular. Yet the proceeding shall not be set-aside merely on the ground of

his not being so empowered.

Further, Section 461(k) of the Code provides that if the Magistrate not empowered by law takes

cognisance of the offence on information received from any other person other than a police officer or upon

his own knowledge, his proceeding shall be void.

Transfer of Case

By virtue of Section 191, when a Magistrate takes cognisance of an offence upon information received

from any person other than a police officer, or upon his own knowledge, that such offence has been

committed, the accused shall, before any evidence is taken, be informed that he is entitled to have the case

inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than

one, objects to further proceedings before the Magistrate taking cognisance, the case shall be transferred to

such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.

Further Section 192 provides that any Chief Judicial Magistrate may, after taking cognisance of an

offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

TOPIC 20

LIMITATIONS ON THE POWER TO TAKE COGNISANCE OF AN OFFENCE

(S.195-199)

Following are the limitations and restrictions laid by the Code on the power of the Magistrate to take

cognisance.

1. Prosecution for Contempt of Lawful Authority of Public Servants

Section 195 (1) (a) of the Code provides that no Court shall take cognisance of offences against public

justice and for offences relating to documents given in evidence,

(a) of any offence punishable under Sections 172 to 188 (both inclusive) of the I.P.C;

(b) of any abetment of, or attempt to commit, such offence;

. Section 195 (1)(b) states that, except on the complaint in writing of the public servant concerned

or of some other public servant to whom he is administratively subordinate. For the purpose of Section 195

(1)(b) the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or

under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this Section.

Such a Court shall be deemed to be subordinate to the civil or revenue court according to the nature of the

case or proceeding in connection with which the offence alleged to have been committed.

2002(2) Criminal Court Cases 549 (Orissa).

Section195 (3).

Section195 (4).

Where such a complaint has been made by a public servant, any authority to which he is

administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the

Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint. However no

such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

2. Prosecution for Offences against State

Section 196(1) of the Code provides that no Court shall take cognisance of,

(a) any offence punishable under Chapter VI or under Section 153A, Section 153B, Section

295A or Section 505 of the IPC;

(b) a criminal conspiracy to commit such offence;

except with the previous sanction of the Central Government or of the State Government.

Sanction to prosecute under Section 196 is a condition precedent for taking cognisance of any such

offence. In such a case concerned Government may order a preliminary investigation by a police officer not

being below the rank of Inspector, in which case such police officer shall have the powers in respect of

investigation as an S.H.O, except to make arrest without warrant

3. Prosecution for criminal conspiracy

Section 196(2) of the Code explicates that no court shall take cognisance of the offence of any criminal

conspiracy punishable under Section 120B of the IPC, 1860 other than a criminal conspiracy to commit a

cognisable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two

years or upwards, unless the State Government or the district Magistrate has consented in writing to the

initiation of the proceedings.

4. Prosecution of Judges and public servants

According to Section 197 (1) when any person who is or was a Judge or Magistrate or a public servant

is accused of any offence alleged to have been committed by him while acting in the discharge of his official

duty, no Court shall take cognisance of such offence except with the previous sanction. In order to attract the

restrictive rule the provision requires

(a) The Judge or Magistrate or a public servant is one not removable from his office save by or with the

sanction of the Government.

(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the

alleged offence employed, in connection with the affairs of the Union, of the Central Government.

alleged offence employed, in connection with the affairs of a State, of the State Government.

Section195 (2).

Section 193 (3).

In Sajan John v. State of Kerala,

the court held that order refusing sanction or granting sanction under

S.197 is merely an executive act and not a quasi judicial function. It is not necessary to state reasons.

According to Section 197 (4) The Central Government or the State Government, as the case may be,

may determine the person by whom, the manner in which, and the offence or offences for which, the

prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before

which the trial is to be held.

In Khandwala v. State of Gujarat,

the court held that the sanction for prosecution of public servant for

offence committed, while acting or purporting to act in the discharge of his official duty. Quality of the act is

important.

In State of Kerala v. Padmanabhan Nair,

the court held that the accused facing prosecution for

offences under prevention of corruption act cannot claim any immunity on the ground of want sanction if he

ceased to be a public servant on the date when the court taking cognisance of the said offence.

5. Prosecution of member of the Armed Forces

Section 197(2) no Court shall take cognisance of any offence alleged to have been committed by any

member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official

duty, except with the previous sanction of the Central Government. Above stated rule will apply as if for

the expression "Central Government" occurring therein, the expression "State Government" were

substituted

6. Prosecution for offences against marriage

No Court shall take cognisance of an offence punishable under Chapter XX of the Indian Penal Code

except upon a complaint made by some person aggrieved by the offence S 198 (1). The same applies to the

abetment of, or attempt to commit; an offence mentioned therein S198 (7). It is further provided in S 198 (3)

the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a

person who has not been appointed or declared by a competent authority to be the guardian of the person of

the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court

shall, before granting the application for leave, cause notice to be given to such guardian and give him a

reasonable opportunity of being heard.

7. Prosecution of Husband for Rape

Section 198 (6) of the Code provides that no Court shall take cognisance of an offence under Section

376 of the I PC, where such offence consists of sexual intercourse by a man with his own wife, the wife being

under fifteen years of age, if more than one year has elapsed from the date of the commission of the offence.

8. Prosecution for Defamation

2000(1) KLT 192.

2003(2) KLT SN 76.

1999(2) KLT 782.

Section 197 (3).

By virtue of Section 199 (1) of the Code, no Court shall take cognisance of an offence punishable under

Chapter XXI of the I PC except upon a complaint made by some person aggrieved by the offence. When

defamation is committed against a person who, at the time of such commission, is the President of India, the

Vice-President of India, the Governor of a State, the Administrator of a Union territory or a Minister of the

Union or of a State or of a Union territory, or any other public servant employed in connection with the affairs

of the Union or of a State in respect of his conduct in the discharge of his public functions a Court of Session

may take cognisance of such offence, without the case being committed to it, upon a complaint in writing

made by the Public Prosecutor. Section 199(4) of the Code provides that the Public Prosecutor except with the

previous sanction of government shall make no complaint.

According to Section 199(6) aforementioned provisions shall not affect the right of the person against

whom the offence is alleged to have been committed, to make a complaint in respect of that offence before a

Magistrate having jurisdiction or the power of such Magistrate to take cognisance of the offence upon such

complaint.

9. Cognisance after Period of limitation

Section 468 of the Code provides that a court shall not take cognisance of an offence after expiry of

period of limitation. The period of limitation shall be follows,

(a) Six months, if the offence is punishable only with fine;

(b) One year, if the offence is punishable with imprisonment for a term exceeding 1year;

exceeding three years.

The commencement of Period of Limitation shall be,

(a) On the date of offence;

(b) If the commission of the offence was not known to the person arrived by the offence or to any police

officer, the first day on which such offence comes to the knowledge of such person or the police officer;

offender or to the police officer making the investigation.

10. Offences Committed Outside India

By virtue of Section 188 of the Code, if any offence is committed outside India, such an offence shall

not be inquired in to or tried in India except with the previous sanction of the Central Government.

In Rajan v. State of Kerala

, it was held that when the offence is committed outside India, sanction is

required only for trial and not for investigation.

TOPIC 21

PRIVATE COMPLAINT OR COMPLAINT TO MAGISTRATE

(Ss. 200 to 203)

A complaint is an allegation made orally or in writing to a Magistrate with a view to his taking action

under CrPC

. Chapter 15 of the Cr. P.C. deals with the procedure with regard to the complaint to Magistrate.

2003(2) Criminal Court Cases 439 (Kerala).

It should mention that an offence is committed by known or unknown person

. The nature of the complaint

must be a serious one. The Magistrate has the power to receive a complaint and examine the complainants and

witnesses if any. The Magistrate has to follow the following procedure;

1. He has to examine the complainant at first. If the complaint is reduced into writing, the complainant need

not be examined. A complaint send by post is valid and cognisance can be taken on such a complaint also.

In Uslkhom v. Chandra

, there was a written complaint issued by two persons, but the Magistrate

examined only one. It was held that the proceedings were illegal. So the rule is that if there is more than one

complainant it is compulsory on the part of the Magistrate to examine all the complainants.

2. Section 200 makes it obligatory that the complainant must be examined only on oath. Section 200 of the

Cr.P.C. confers a wide power to hear the complaint, by examining the complainant. A Magistrate taking

cognisance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if

any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant

and the witnesses, and also by the Magistrate. The object of such examination is to find out whether there is a

‘prime facie’ case against the accused person.

3. When the complaint is made in writing, the Magistrate need not examine the complainant and the

witnesses-

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has

made the complainant; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192.

4. Section 201 deals with the procedure to be followed when the complaint is presented before an

incompetent Magistrate, i.e. jurisdictional incompetence. If it is a written complaint, the Magistrate shall

direct it to the proper court with an endorsement to that effect. If it is an oral complaint, he shall direct the

complainant to the proper court.

5. S.202 (1) provides that any Magistrate, on receipt of a complaint of an offence which he is authorised to

take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the

issue of process against the accused, and either inquire into the case himself or direct an investigation to be

made by, a police officer or by such other person as he thinks fit.

However Section 202 (1) provides that no such direction for investigation shall be made,-

(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of

Session; or

(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if

any) have not been examined on oath under Section 200.

According to Section 202 (2) in such an inquiry the Magistrate may take evidence of witnesses. If it

appears to the Magistrate that the offence complained, is triable exclusively by the Court of Sessions, he shall

call upon the complainant to produce all his witnesses and examine them on oath.

It has been further

Section 2(d)

Praveen Chandra Mody’s Case, AIR 1965 SC 1185.

Uslkhom v. Chandra (1984).

Proviso to S. 202 (2)

provided that under Section 202 (3), if a person not being a police officer makes such an investigation, he

shall have for that investigation all the powers conferred by this Code on an officer in charge of a police

station except the power to arrest without warrant.

Dismissal of Complaint

One of the objects behind Section 202 is to find out whether or not there is sufficient truth in the

allegation. The Magistrate must carefully examine the complaint. He has to consider the evidence. If the

Magistrate has reason for doubting the truth of the allegation, then he will stop further action in the matter. It

may be noted that the words “if he thinks fit” shows that the Magistrate can exercise discretion. If there is no

evidence in the allegation, the Magistrate shall dismiss the complaint and while doing so he has to state his

reason.

If, after considering the statements on oath of the complainant and of the witnesses and the result of the

inquiry or investigation under Section 202, the Magistrate is of opinion that there is no sufficient ground for

proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so

doing.

In Dr. Kapil Garg v. State

, it was held that when the final report is submitted and Magistrate decides

not to take cognisance and drop the proceedings it is incumbent upon the Magistrate to give notice to the

informant i.e. complainant and provide him an opportunity to be heard at the time of consideration of the

report.

In Vijayalekshmi v. Thomas

, the court held that the objection filed is usually called a protest or protest

complaint. If the complainant files any such petition, the Magistrate should treat the petition as a complaint

and dispose it of in accordance with chapter15 of the Code. What emerges from the above is that though a

private complaint presented to court after the final report is filed a complainant can always request to the court

to take cognisance of the offence. The power of the court to take cognisance based on such a complaint or

through the objection filed to the refer reports (protest complaint) remains unaffected by the conclusion of the

police.

In Harinder Pal Singh v. State of Punjab

, it was held that if Magistrate does not agree with the opinion

formed by the police and still suspects that an offence has been committed he can take cognisance under

Section 190 (1) (c) Cr.P.C.

Whether fresh complaint will lie?

An order of dismissal of a complaint under Section 203 is no bar to the entertainment of another

complaint or second complaint if:

i. The previous order was passed in an incomplete record;

ii. The previous order failed to appreciate a relevant document;

2004 (3) Criminal Court Cases 27 (Delhi).

2002 (3) KLT 530.

Section 203.

2004 (4) Criminal Court Cases 43 (P&H).

Justice V. R. Krishna Iyer in Chandralal v. State

, held that imperative duty of considering the relevant

materials and the requirement of the recording of the reasons are necessary safeguard against the arbitrary

dismissal of a complaint.

iii. The previous order was passed on a misunderstanding of the nature of the complaint;

iv. The previous order was manifestly absurd, unjust, or foolish;

v. New facts were subsequently discovered to support the allegation.

Only in exceptional circumstances a second complaint will be proceeded with. The exceptional

circumstances must be convincing. If in the opinion of a Magistrate there is sufficient ground for proceeding,

he can straight away issue process under Section 204.

The S.C. in Balarani v. Jagannath

, ruled that delay in filing the complaint is not a ground to dismiss

the complaint though that may be a relevant consideration at the trial.

In Pramatha Nath v. Saroj Ranjan

, the court held that if the first complaint is dismissed under Section

203, a second complaint may be field by the complainant, but exceptional circumstances must exist for the

entertainment of a second complaint on the same facts.

In Mahesh Chand v. B. Janardhan Reddy & Anr

and Poonam Chand Jain & Anr v. Fazru

, it was

held that second complaint on same facts can be entertained only in exceptional circumstances, namely, where

the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or

it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been

brought on record in the previous proceedings, have been adduced.

Thus the Cr.P.C allows a citizen to file a complaint before a Magistrate and this is intended to uphold

the administration of criminal justice. The complaint must be filed without delay.

TOPIC 22

COMMENCEMENT OF PROCEEDINGS BEFORE MAGISTRATES

(Ss.204-210)

Issue of Process

If the Magistrate taking cognisance of an offence considers that there is sufficient ground for

proceeding, he shall issue process against the accused person.

If it is a summons-case, he shall issue summons for the attendance of the accused.

If it is a warrant-case, he has discretion either to issue a warrant or a summons, to ensure presence of accused

person before such Magistrate or if he has no jurisdiction himself some other Magistrate having jurisdiction.

S.204 (2) provides that neither summons nor warrant shall be issued against the accused until a list of

the prosecution witnesses has been filed.

Chandralal v. State (1962).

Balarani v. Jagannath (1967).

1962 Supp. 2 SCR, 297.

2003(1) Apex Court Judgments 83 (S.C.); 2003(1) Criminal Court Cases 250 (S.C.).

2005(1) Apex Court Judgments 351 (S.C.); 2005(1) Criminal Court Cases 801 (S.C.).

Section 204 (1)

In Dipak Ghosh Dastidar v. Sanat Kumar Mukherjee & State

, it was held that non- examination of

complaint before issue of process is not an illegality; it is a mere irregularity, which is curable under Section

465 Cr.P.C. .

Section 204 (3) of the Code provides that in a case instituted upon a complaint made in writing, a copy

of such complaint shall accompany every summons or warrant issued.

According to S. 204(4) when any process-fees or other fees are payable, no process shall be issued until

the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the

complaint.

In Madan Lal v. Rang Lal

, it was held that if there is prima facie evidence in support of the allegations

in the complaint that will be sufficient ground for issuing process to the accused and committing them for trial

to the Court of Sessions.

S.205 (1) empowers Magistrate to dispense with personal attendance of accused, whenever he may, if

he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his

pleader. Similarly at a later stage, personal attendance of the accused can be dispensed with under S.317.

However according to S.205 (2) the Magistrate inquiring into or trying the case may, in his discretion, at any

stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such

attendance in the manner hereinbefore provided.

In Rajan Kohli & Ors. v. State of Haryana

, it was observed that discretion to dispense with personal

attendance should be used in rare cases on account of distance, physical disability or other good reasons

subservient to the interest of justice.

Special Summons in Cases of Petty Offence

S.206 has been enacted to avoid unnecessary inconvenience to person accused of petty offences and

also to reduce to some extent congestion in courts. Section 206(1) provides for abridged procedure in the

disposal of petty cases in which the accused person may be inclined to plead guilty.

According to Section 206(1) the abridged procedure Magistrate shall not apply where the Magistrate,

for reasons to be recorded in writing, decides not to dispose the case summarily.

The abridged procedure applies only if-

1. in the opinion of a Magistrate taking cognisance of a petty offence, the case may be summarily disposed of

under Section 260, and the imposition of the fine only meet the ends of justice

;

2. the amount of the fine specified in such summons does not exceed 1000 rupees;

3. if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorize, in

writing, the pleader to plead guilty to the charge on his behalf and to pay the fine through such pleader

2003(1) Criminal Court Cases 604 (Calcutta).

2002(3) Criminal Court Cases 352 (P&H).

2004(1) Criminal Court Cases 145 (P&H).

Section 206 (3).

Proviso to Section 206(1).

Section 206(1).

S.206 (2) defines "Petty offence" as any offence punishable only with fine not exceeding one thousand

rupees

and any offences that are compoundable under S.320 or any offence punishable with imprisonment

upto three months, or fine or with both, which government may empower Magistrate to exercise powers under

Section 206. However according to Section 206(2) it does not include any offence so punishable under the

Motor Vehicles Act, 1939, or under any other law which provides for convicting the accused person in his

absence on a plea of guilty.

Supply to the Accused of Copy of Police Report and other Documents

Section 207 provides that in any case instituted on a police report, the Magistrate shall without delay

furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report; .

(ii) the first information report recorded under Section 154; .

(iii) the statements recorded under Sub-Section (3) of Section 161 of all persons whom the prosecution

proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such

exclusion has been made by the police officer under Sub-Section (6) of Section 173; .

(iv) the confessions and statements, if any, recorded under Section 164; .

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under

Sub-Section (5) of Section 173. If the Magistrate is satisfied that any document is voluminous, he shall,

instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either

personally or through pleader in Court.

In Sunita Devi v.State of Bihar & Anr

it was held that the object is to enable the accused to defend

himself properly and the idea behind the supply of copies is to put him on notice of what he has to meet at the

trial.

According to S. 208, where, in a case instituted otherwise than on a police report, it appears to the

Magistrate issuing process under Section 204 that the offence is triable exclusively by the Court of Session;

the Magistrate is required to furnish to the accused without delay, free of cost, a copy of each of the following:

(i) the statements recorded under Section 200 or Section 202, of all persons examined by the Magistrate;

(ii) the statements and confessions, if any, recorded under Section 161 or Section 164;

(iii) any documents produced before the Magistrate on which the prosecution proposes to rely;

If the Magistrate is satisfied that any such document is voluminous, he shall, instead of furnishing the

accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through

pleader in Court.

Commitment of Case to Court of Session

Amended by the Code of Criminal Procedure (Amendment) Act 2005.

Proviso II to Section 107.

2005(1) Criminal Court Cases 415 (S.C.).

Proviso to Section 208.

Certain offences are exclusively triable only by the court of sessions. According to S 209 where the

accused appears or brought before the Magistrate and it appears to the Magistrate that the offence is triable

exclusively by the court of sessions, he shall- .

(a) commit, after complying with the provisions of S. 207 or 208, the case to the Court of Session and subject

to provisions relating to bail, remand the accused to custody until such commitment has been made ;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the

conclusion of, the trial;

evidence; .

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

Consolidation o f Cases Relating to the Same Offence (S. 210)

Section 210 (1) provides that when in a case instituted otherwise than on a police report, it is made to

appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the

police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him,

the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the

police officer conducting the investigation.

Section 210 (2) provides that if a report is made by the investigating police officer under Section 173

and on such report cognisance of any offence is taken by the Magistrate against any person who is an accused

in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising

out of the police report as if both the cases were instituted on a police report.

According Section 210 (3) if the police report does not relate to any accused in the complaint case or if

the Magistrate does not take cognisance of any offence on the police report, he shall proceed with the inquiry

or trial, which was stayed by him, in accordance with the provisions of this Code.

In Ram Rattan v. State of Haryana & Ors

, it was held that if in a case police report is submitted and a

complaint has been filed then Magistrate is under an obligation to try both the cases together.

TOPIC 23

CHARGE

(S.211-224)

Definition

A ‘charge’ literally means accusation. Legally it denotes the formal accusation in writing against a

person that he committed an offence. It is different from information given to a police officer. A Magistrate

forming a prima facie case against an accused draws the charge. It is read over to the accused and the answer

is recorded in question and answer form. Under the Cr.P.C, “charge” means the statement of a specific

offence. It is the judicial recognition of the guilt of the accused. The facts of the cases, the date and place of

the previous conviction are also stated in the charge to enhance the punishment. It is to give full notice of the

offence committed by the accused.

2004(2) Criminal Court Cases 50 (P&H).

In Smt. Shanti Devi & Anr. v. State of Rajasthan & Anr

, it was held that at the stage of framing of

charge, court is not required to undertake an elaborate enquiry for the purpose of sifting and weighing the

material.

In Om Prakash v. State of Rajasthan

, it was held that even strong suspicion about commission of

offence is sufficient for framing the charge.

Contents of Charge

The Section 211 to 214 of the Code explicates the details to be mentioned in a charge. It must have the

following particulars:

1. The offence, with which the accused is charged;

2. Specific name of the offence committed;

3. If there is no specific name the definition of such offence;

100

4. The law and Section of the law against which the offence is said to have been committed;

101

5. A statement that every legal condition required by law to constitute the offence charged was

fulfilled in the particular case;

102

6. The charge shall be written in the language used by the Courts;

103

7. If there is any previous conviction of the accused to enhance the punishment, the facts, date and

place of the previous conviction.

104

Section 212 (1) provides that the charge shall contain such particulars as to the time and place of the

alleged offence, and the person against whom, or the thing in respect of which, it was committed, as are

reasonably sufficient to give the accused notice of the matter with which he is charged. However when the

accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable

property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property

in respect of which the offence is alleged to have been committed, and the dates between which the offence is

alleged to have been committed, without specifying particular items or exact dates.

105

8. When the nature of the case is such that the particulars mentioned in Sections 211 and 212 do not give

the accused sufficient notice of the matter with which he is charged, the charge shall also contain such

particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.

106

9. According to Section 214, in every charge words used in describing an offence shall be deemed to have

been used in the sense attached to them respectively by the law under which such offence is punishable.

2004(1) Criminal Court Cases 209 (Rajasthan).

2004(1) Criminal Court Cases 735 (Rajasthan).

Section 211 (1).

Section 211 (2).

100

Section 211 (3).

101

Section 211 (4).

102

Section 211 (5).

103

Section 211 (6).

104

Section 211 (7).

105

Section212 (2).

106

Section 213.

In State of Orissa v. Debendra Nath Padhi

107

, it was held that accused cannot seek production of

documents at that stage.

Illustration

1. A is charged with the murder of B. The charge must contain the definition of murder, S.299 and 300 of

I.P.C and the fact that the offence did not fall under the five exceptions to S.300.

2. A is charged with voluntarily causing grievous hurt to B. The charge must contain S.326, the definition of

grievous hurt, and the non-application of general exceptions provided in I.P.C.

Alteration of Charges

By virtue of 216 (1), any court may alter or add to any charge at any time before the judgement is

pronounced. Every such alteration must be read and explained to the accused. Such alteration or addition

must not affect the defence of the accused. If previous sanction is necessary for such alteration or addition

then only after obtaining such sanction the case must be proceeded. An entirely new charge must not be

added to the prejudice of the accused. The court must allow the accused to detail any witness in furtherance

of such alteration or addition by the court in the charge.

In Pradeepan v. State of Kerala

108

, it was held that no limitation has been imposed on the court's

power and no stage has been set for correcting the charge. The legislative intention is to invest the court with a

remedial power for the defects in charge that is whether they arose while framing the charge, due to non-

framing of charge, whether the defects were discovered at the inception of the trail or at any subsequent stage

of it.

In State of Maharashtra v. Salman Salim Khan & Anr

109

, it was held that charge can be altered at any

stage of the proceedings depending upon the evidence adduced in the case.

However in Sajeendran Thalakulathoor Grama Panchayat

110

, it was held that when the case is posted

for judgment the trial stands terminated. The power under S.311 can be exercised only at the stage, trial or

other proceedings. So if the trial is already over, the power under S.311 not be invoked by the Magistrate.

Procedure for Alteration of Charge

1. Every such alteration or addition must be read and explained to the accused,

111

if not the accused is

prejudiced in his defence hence conviction will become illegal.

2. If the alteration or the amendment is not likely to prejudice the defence, the trial may be proceeded

immediately.

112

Thus the trial may be proceeded de nova or trial may be adjourned.

113

In Ghan Shyam v. State of U.P.

114

, an accused was originally charged under Section 302 IPC (homicidal

death) and later imposed additional charge under Section 306 (suicidal death and abetment). Court observed

that both the charges cannot go together and therefore the order framing additional charge was set aside.

107

2005(1) Criminal Court Cases 312 (S.C.).

108

1993(2) KLT 880.

109

2004(1) Criminal Court Cases 853 (S.C.).

110

2004 (1) KLT 69.

111

Section 216(2).

112

Section 216(3).

113

Section 216(4)

114

2004(2) Criminal Court Cases 690 (Allahabad).

3. If the amendment of charges are made after the commencement of the trial, prosecution and the defence

should be allowed to recall and re-examine, with reference to such alteration, any witness who may have been

examined

115

or any further witness.

116

4. There is no obligation upon the court to recall or re-summon the witness. The request must come from

the parties.

5. It is mandatory for the court to allow the request for re-examination.

6. However the court may refuse such request if it considers the application made for the purpose of

vexation or delay or for defeating the ends of justice.

TOPIC 24

JOINDER OF CHARGES

(Ss 218-223)

Every distinct offence of which any person is accused shall be separately charged and every such charge

shall be tried separately. The general rule is that for every specific offence there must also be separate charge.

For every such separate charge, the trial must be a separate.

In State of Punjab & Anr. v. Rajesh Syal

117

, it was held that each offence is distinct one and hence

criminal cases cannot be transferred to be tried in a single Court.

However, on the written application of the accused, the Magistrate may try all or any number of charges

jointly against such person.

E.g. A is accused of theft on one occasion and of causing grievous hurt on another occasion. A must be

separately charged and separately tried for causing grievous hurt and theft. If both the offences were

committed on one occasion then the charges may be joined together. Separate charge is the mandatory rule

and must be strictly followed. However, joint trial is the exception provided under Sections 218-224 of the

Code.

The Code of Criminal Procedure (Amendment) Act 2005 has amended Section 223 and now Magistrate

as well as Court of Sessions is empowered to joint the charges.

Circumstances Where There can be a Joint Trial or Joinder of Charges

I. Three offences of the same kind committed within a year may be charged together and accused may be tried

at one trial. The offences must be of the same kind and should have same amount of punishment; however

there are two exceptions to this rule. S.379 and 380 of I.P.C are of same kind (theft), but punishments are

different and separate charges must be framed and separate trials must be conducted.

118

In Gulshan Kumar Ahuja v. Veena Sharma

119

, it was held that joint trial of two offences of same kind

can be allowed in summons cases also. In this case two cheques were issued within a span of one year and

115

Section 217(a)

116

Section 216(b)

117

2002(3) Criminal Court Cases 581 (S.C.).

118

Proviso to Section 219(2).

119

2004(1) Criminal Court Cases 726 (Delhi).

dishonoured on the same date. The parties were common and evidence in the two complaint cases were also

be common. The Court found that impugned order directing joint trial suffers no illegality.

II. An attempt to commit an offence of same kind and the actual commission of the offence when such attempt

itself is an offence.

120

III. If in a series of acts, one is closely connected with another joinder of charge and joint trial is possible.

121

The test to find out whether one act is closely connected with another act is to find out by point of purpose,

cause and effect principal and subsidiary acts. E.g., if A rescues B, a person in lawful custody of C, a

constable, A commits two offences namely, rescue from lawful custody

122

, voluntarily causing grievous hurt

to C

123

. A can be tried jointly under the joinder of charges.

Similarly, A entices B, the wife of C away from C with the intention to commit adultery with B.

Afterwards he actually commits adultery with her. A may be jointly charged and tried at one trial for the two

offences, enticement

124

and adultery.

125

IV. If in a single act or series of acts of such nature, it is doubtful which of the several offences can be proved,

then all the offences may be jointly tried. E.g. A is accused of theft or receiving stolen property or criminal

breach of trust or cheating. Now A may be charged for all the offences jointly. If a person is charged with

one offence and later on, if it appears that he has committed another offence then he may be convicted of such

different offence, although he was not charged with it.

V. When a person is charged with an offence consisting of several particulars, if the combination of some

particulars constitutes a minor offence, and if the combination of the rest of the particulars constitutes a major

offence, then he may be convicted of major offence.

126

In Dalbir Singh v. State of U.P.

127

, it was held that if the commission of a minor offence alone is

proved, then he can be punished for that alone though he was charged for the major offence.

VI. by virtue of Section 223, the following persons may be charged jointly and tried together:

a. Persons accused of the same offence committed under the same transaction;

b. The preparator of the offence, the abettor, and the person attempting to commit the offence may be jointly

tried;

c. Persons accused of more than one offence the same kind, the offence being committed within a period of 12

months;

d. Persons accused of different offences committed in the same transaction;

e. Persons accused of offences, which include theft, extortion, cheating, criminal misappropriation, receiving

stolen property, concealment of the above offences can be jointly tried;

f. Persons accused of offences under S.413 and 414;

128

120

Proviso to Section 219(2)

121

Section 220(1)

122

Section 225.

123

Section 333.

124

Section 497.

125

Section 498.

126

Section 220(4)

127

2004(2) Criminal Court Cases 682 (S.C.).

128

receiving stolen property, concealment of stolen property

g. Persons accused of offences relating to counterfeit coins and abetting or attempting to commit such

offences.

VII. If the accused person by an application in writing so desired and the Magistrate is of the opinion that such

person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges

framed against such person.

129

In Lalu Prasad Yadav v. State through CBI

130

, the Appellant was accused of several charges under

Prevention of Corruption Act, offence of conspiracy to defraud State exchequer and large number of

complaints in which cases were prosecuted by CBI before various Special Courts in the State of Jharkhand

and Bihar. Six of such cases were pending before Special Courts in State of Jharkhand. Apart from appellants

there were a large number of accused and most of them didn’t applied for joint trial. The Court held that the

alleged overt acts couldn’t be said to be in course of same transaction and hence application for amalgamation

was rightly rejected.

TOPIC 25

TRIAL BEFORE COURT OF SESSIONS

(Ss. 225-237)

Trial Conducted by Public Prosecutor

By virtue of Section 225 the Public Prosecutor shall conduct the prosecution in every trial before Court

of Sessions. A Public Prosecutor is a person appointed under Section 24 of the Code. Public prosecutor is the

only person legally entitled to conduct prosecution on behalf of the state.

Opening Case for Prosecution

By virtue of Section 226 of the Code, when the accused appears or is brought before the court, the

Prosecutor shall open his case by describing the charge brought against the accused and stating by what

evidence he proposes to prove the guilt of accused.

Discharge of the Accused

By virtue of Section 227 if, upon consideration of the records of the case and the documents submitted

therewith and after hearing the submissions of the accused and the prosecution in this behalf the Judge

considers, for reasons to be recorded that no case against the accused has been made out, which if un-rebutted,

the Judge shall discharge him.

Framing of Charges

1. If, after such consideration and hearing as aforesaid the Judge is of opinion that there is ground for

presuming that the accused has committed an offence which is not exclusively triable by Sessions Court he

shall frame in writing a charge against the accused, and by order transfer the case for trial to the Chief Judicial

Magistrate or any judicial First Class Magistrate.

131

129

Proviso to Section 218

130

2003(2) Apex Court Judgments 441 (S.C.).

131

Section 228 (1)(a)

In K.M.Ganesha & Anr. v. State by Station House Officer

132

, two cases were registered on the basis of

rival versions of same incident. First case was triable exclusively by Court of Sessions and other was not

involving any such offence. Both cases were ordered to be committed to Court of Sessions for simultaneous

trial, as Court of Sessions has jurisdiction to try any offence under Indian Penal Code.

2. If the said offence is exclusively triable by Sessions Court, the charge shall then be read and

explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make.

133

3. By virtue of Section 229, if the accused pleads guilty, the Judge shall record the plea, and may, in his

discretion, convict him thereon.

In Santhosh v. State of Kerala

134

, the court held that there is no reason to restrict the applicability of

S.229 of the CrPC to a particular date of occasion but the purpose of Section is obvious that plea of guilt can

be advanced by an accused at any stage of the trial after framing charge.

In State of Orissa v. Debendra Nath Padhi

135

, it was held that if the evidence which prosecution

proposes to adduce to prove guilt of accused, even if fully accepted does not show any offence committed by

accused then accused deserves to be discharged.

Evidence for Prosecution

(1) By virtue of Section 230 if the accused refuses to plead or does not plead, or claims to be tried or if

the judge does not convict the accused under Section 229, the judge shall fix a date for the examination of

witnesses.

(2) The judge may, on the application of the prosecution, issue a summons to any of its witnesses

directing him to attend or to produce any document or other thing.

136

(3) By virtue of Section 231(1) on the date so fixed, the judge shall proceed to take all such evidence as

may be produced in support of the prosecution.

S.232 of the Code runs as follows:-

Acquittal

If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and

the defence on the point, the Judge considers that there is no evidence that the accused committed the offence,

the judge shall record an order of acquittal.

Examination of the Accused

By virtue of Section 313, after the witnesses for the prosecution have been examined and before he is

called on for defence the court shall examine the accused for the purpose of enabling him to personally

explain any circumstances appearing in evidence against him.

In Parameswarn & Others v. State of Kerala

137

, it was held that accused should be asked about the

various items of evidence appearing against him and if the relevant items of evidence were not put to the

132

2003(3) Criminal Court Cases 381 (Karnataka).

133

Section 228(1)(b) and Section 228(2)

134

2003(1) KLT 795.

135

2005(1) Criminal Court Cases 312 (S.C.).

136

Section 230

137

1989(1) KLT 35.

accused for the purpose of enabling him to offer an explanation, the court cannot place reliance on the

evidence of the witnesses and convict the accused.

Evidence for Defence

According to Section 233 (1) the accused shall be called upon to enter upon his defence and produce his

evidence. If the accused puts in any written statement, the Judge shall file it with the record.

138

According to Section 233 (3) if the accused, after he has entered upon his defence, applies to the Judge

to issue any process for compelling the attendance of any witness for the purpose of examination or cross-

examination, or the production of any document or other thing, the Judge shall issue such process unless he

considers that such application should be refused on the ground that it is made for the purpose of vexation or

delay or for defeating the ends of justice and such ground shall be recorded by him in writing.

In Surinder Kumar Tiku v. The State through C.B.I.

139

, it was held that accused is at liberty to place any

document before trial judge to claim discharge. However accused cannot summon record of an earlier case.

Arguments

Section 234 provides that when the examination of the witness is over the prosecutor shall sum up his

case and accused or his pleader shall be entitled to reply.

Acquittal or Conviction (S.235)

According to S.235 (1) if, charge has been framed and the Judge finds the accused not guilty, he shall

record an order of acquittal.

According to S.235 (2) if the accused is convicted, the judge may release the offender after admonition

or on probation of good conduct in accordance with the provisions of Section 360 or of the Probation of

Offenders Act 1958. If the Judge finds the accused guilty, but does not proceed in accordance with the

provisions of Section 325 or Section 360, he shall, after hearing the accused on the question of sentence, pass

sentence upon him according to law.

According to Section 236 where, in any case a previous conviction is charged and the accused does not

admit that he has been previously convicted as alleged in the charge, the Judge may, after he has convicted the

said accused, take evidence in respect of the alleged previous conviction, and shall record a finding thereon.

In Anirudhan v. State of Kerala

140

, it was held that delay, if any, in sending FIR to Magistrate is not a

ground for acquittal of accused.

In Ramdev,Dharamraj & Rampal v. The State of Rajasthan

141

, it was held that defective investigation is

not a ground to acquit accused if case otherwise established.

TOPIC 26

WARRANT CASES

(Ss.238-250)

138

Section 233(2).

139

2002(1) Criminal Court Cases 179 (P&H).

140

2004(1) Criminal Court Cases 358 (Kerala).

141

2003(3) Criminal Court Cases 347 (Rajasthan).

According to 2(x) of the Code warrant case means case relating to an offence punishable with death,

imprisonment for life or imprisonment for a term not exceeding two years.

A. Cases Instituted On a Police Report

Obligation to Provide Police Report, F.I.R, Confession Statement

Section 238 of the Code explicates that in a warrant-case instituted on a police report, the accused

appears or is brought before the Magistrate, the Magistrate shall comply the provisions of Section 207.

142

In Abdul Latif v. Central Bureau of Investigation

143

, it was held that in the case of tape-recorded

conversation, transcripts of tapes are to be furnished to accused for the purpose of cross-examination.

Prosecution was also directed to supply legible copies of documents to accused.

In Vaman Narayan Ghiya v. State of Rajasthan

144

, it was held that photographs and catalogues and

other material being voluminous, Court may, instead of supplying copies to accused may allow inspection of

the same.

Discharge of the Accused

By virtue Section 239 of the Code, if Magistrate after the examination of the police report and the

documents and the accused as the Magistrate thinks necessary and after giving the prosecution and the

accused an opportunity of being heard, the Magistrate considers the charge against the accused to be

groundless, he shall discharge the accused, and record his reasons for so doing.

Framing of Charge

According to Section 240 (1) if, after considering police report, examination and hearing, the Magistrate

is of opinion that there is ground for presuming that the accused has committed an offence triable by him, he

shall frame in writing a charge against the accused.

According to Section 240 (2) the charge shall then be read and explained to the accused, and he shall be

asked whether he pleads guilty of the offence charged or claims to be tried.

Conviction on Plea of Guilty

By virtue of Section 241 if the accused pleads guilty, the Magistrate shall record the plea and may, in

his discretion, convict him thereon.

Evidence for Prosecution

By virtue of 242 (1) if the accused refuses to plead or does not plead, or claims to be tried or the

Magistrate does not convict the accused under Section 241, the Magistrate shall fix a date for the examination

of witnesses.

By virtue of 242 (2) the Magistrate may, on the application of the prosecution, issue a summons to any

of its witnesses directing him to attend or to produce any document or other thing.

142

Obligation to provide Police Report, F.I.R, Confession Statement, other statements etc.

143

2002(1) Criminal Court Cases 417 (P&H).

144

2004(3) Criminal Court Cases 08 (Rajasthan).

By virtue of 242 (3) on the date so fixed, the Magistrate shall proceed to take all such evidence as may

be produced in support of the prosecution.

It has been further provided by Section 242 that the Magistrate may permit the cross-examination of any

witness to be deferred until any other witness or witnesses have been examined or recall any witness for

further cross-examination.

Examination of the Accused

By virtue of Section 313, after the witnesses for the prosecution have been examined and before he is

called on for defence the court shall examine the accused for the purpose of enabling him to personally

explain any circumstances appearing in evidence against him.

Evidence for Defence

According to Section 243 (1) the accused shall be called upon to enter upon his defence and produce his

evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

According to Section 243 (2) if the accused, after he has entered upon his defence, applies to the

Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination

or cross-examination, or the production of any document or other thing, the Magistrate shall issue such

process unless he considers that such application should be refused on the ground that it is made for the

purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in

writing.

Proviso to S. 243 states that when the accused has cross-examined or had the opportunity of cross-

examining any witness before entering on his defence, the attendance of such witness shall not be compelled,

unless the Magistrate is satisfied that it is necessary for the ends of justice.

B Cases Instituted Otherwise than on Police Report

1. Evidence for Prosecution

Section 244(1) of the Code provides that when, in any warrant-case instituted otherwise than on a police

report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the

prosecution and take all such evidence as may be produced in support of the prosecution.

Section 244(2) of the Code provides that Magistrate may, on the application of the prosecution, issue a

summons to any of its witnesses directing him to attend or to produce any document or other thing.

2. Discharge of the Accused

By virtue of Section 245(1) if, upon taking all the evidence the Magistrate considers, for reasons to be

recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his

conviction the Magistrate shall discharge him.

In Kunhjali Haji v. State of Kerala

145

, it was held that at the stage of S.245 (1) Magistrate is not

expected to resort to exercise of weighing evidence in golden scale. Magistrate need only consider whether a

case has been made out which if un-rebutted would warrant a conviction.

3. Procedure Where Accused is not Discharged (S.246)

145

2004(3) Criminal Court Cases 580 (Kerala).

By virtue S.246 (1) if, when such evidence has been taken, or at any previous stage of the case, the

Magistrate is of opinion that there is ground for presuming that the accused has committed an offence, which

such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall

frame in writing a charge against the accused.

By virtue S.246 (2) the charge shall then be read and explained to the accused, and he shall be asked

whether he pleads guilty or has any defence to make.

By virtue S.246 (3) if the accused pleads guilty, the Magistrate shall record the plea, and may, in his

discretion, convict him thereon.

By virtue S.246 (4) if the accused refuses to plead, or does not plead or claims to be tried or if the

accused is not convicted under Sub-Section (3), he shall be required to state, at the commencement of the next

hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether

he wishes to cross-examine any, and, if so, which, of the witnesses for the prosecution whose evidence has

been taken.

By virtue S.246 (5) if he says he does so wish, the witnesses named by him shall be recalled and, after

cross-examination and re-examination, they shall be discharged.

In Swaran Kaur v. Gurdev Singh & Ors

146

, it was held that if witnesses are examined before framing of

charge accused has a right to cross-examination all the witnesses examined in pre-charge stage and if he wants

he can leave some of them. Court has to recall the witnesses on the request of the accused and Court shall

adopt coercive method in case prosecution witness fails to appear despite service.

By virtue S.246 (6) the evidence of any remaining witnesses for the prosecution shall next be taken, and

after cross-examination and re-examination, they shall also be discharged.

4. Evidence for Defence

According to Section 247, the accused shall then be called upon to enter upon his defence and produce

his evidence.

C Conclusion of Trial

Acquittal or Conviction (S.248)

S.248 (1) provides that if, charge has been framed and the Magistrate finds the accused not guilty, he

shall record an order of acquittal. S.248 (2) provides that if the Magistrate finds the accused guilty, but does

not proceed in accordance with the provisions of Section 325 or Section 360, he shall, after hearing the

accused on the question of sentence, pass sentence upon him according to law.

In Jaisi Ram v. State of U.P.

147

, it was held that it is a mandatory duty of Court to appraise accused of

valuable right of being heard before sentence is awarded for the offence he has committed.

146

2004(3) Criminal Court Cases 437 (P&H).

147

2003(1) Criminal Court Cases 591 (Allahabad).

In Bhirug v. State of U.P.

148

, it was held that it is the duty of the Court to give opportunity to the

accused to produce evidence or other material before the Court having a bearing on the question of sentence.

S.248 (3) provides that where, in any case under this chapter, a previous conviction is charged and the

accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may,

after he has convicted the said accused, take evidence in respect of the alleged previous conviction, and shall

record a finding thereon.

In The Assistant Commissioner, Assessment-II, Bangalore & Ors. v. M/s Velliappa Textiles Ltd. &

Ors

149

, Court observed that sentence and the conviction is at the discretion of Court which is to be exercised

on sound judicial principles which includes nature of crime, manner and method of commission thereof, the

position and condition of victim and also matters attributable personally to the accused like his age, health,

social background, mental condition etc.

Absence of Complainant (S.249)

When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the

case, the complainant is absent, and the offence may be lawfully compounded or is not a cognisable offence,

the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the

charge has been framed, discharge the accused.

In Bandarupalli Eswara Reddy v. Thonnati Adhi Reddy & Ors.

150

, it was observed that in the case of

absence of complainant in an offence exclusively triable by Sessions Court, he can dismiss complaint but

cannot discharge the accused. Discharge virtually gives a clean chit to the accused whereas dismissal of

complaint enables the complainant to file a fresh complaint. With the discharge of an accused, the remedies to

the complainant are closed once for all, whereas in case of dismissal, he can re-litigate the matter, subject to

the relevant provisions of law.

TOPIC 27

PROCEDURE TO BE FOLLOWED IN SUMMONS CASE

(Ss. 251-259)

Summons cases are comparatively less serious than warrant cases and the trial procedure is not as

elaborate and formal. Following are the principles regarding trial of summons case:

1. Magistrate should explain the particulars of the accusation against him;

151

2. No formal charge is necessary but the accusation must be stated;

152

3. If the accused pleads guilty the Magistrate may or may not convict him;

153

148

(2002(1) Criminal Court Cases 323 (All.).

149

2003(2) Apex Court Judgments 567 (S.C.) : 2003(3) Criminal Court Cases 692 (S.C.).

150

2004(4) Criminal Court Cases 255 (A.P.).

151

Section 251.

152

Section 251.

4. In petty cases, accused need not be present but the fine may be remitted by M.O, by a messenger, or

through a lawyer;

154

5. Even if the accused is not guilty, the Magistrate must take evidence firstly from the prosecution side and

then from the accused.

155

In Jitendra Narottam Das Mehrotra & Ors. v. State & Ors

156

, it was held that recording of evidence

against some of the witnesses and summoning of the others is not permissible.

6. On the basis of the evidence, he can acquit or convict the accused and shall record the same. While

convicting the accused, considering the character of the offender, the nature of the offence and the

circumstances of the case, the Magistrate may instead of passing the sentence, decide to release the offender

after admonition, or on probation of good conduct under Sections 360 or 325 of the Code;

157

In Krisan Kumar Gupta v.Mohammed Jaros

158

, it was held that when complaint dismissed on default, it

results in acquittal of accused and the remedy provided is that of appeal and not revision.

7. If the summons case is a case based upon a complaint, the complainant must be present before the court.

If he is absent, Magistrate shall acquit the accused. However, if he has reason for his absence, the case will be

adjourned for some other day. If the lawyer represents the complainant, the physical presence of the

complainant can be dispensed with;

159

In Ram Bhaj Jain v. M/s Brar Rice and General Mills

160

, it was held that non-appearance of

complainant results in dismissal for default. In such case it is a final order and the Magistrate has no inherent

power to restore the complaint.

But in Bharat Joitaram Patel v. Kanubhai J.Shah

161

, it was held that in the case of death of complainant

the accused is not entitled to acquittal.

8. The complainant can withdraw his complaint.

162

The above-mentioned rules are the important rules relating to a summons case, which is directly

applicable to a summary trial.

TOPIC 28

PETTY OFFENCES

(S.206)

By virtue of Section 206(2) a petty offence means any offence punishable only with fine not exceeding

Rs 1000/-. However, offences punishable under the Motor Vehicles Act 1939 or any other law, which

provides for the conviction of the accused in his absence on a plea of guilty, is not a petty offence.

In the case of petty offences, the Magistrate may summarily dispose of the case under Section 216. In

such cases, the Magistrate issues summons to the accused requiring him to appear in person or by a pleader

153

Section 252.

154

Section 253.

155

Section 254.

156

2004(1) Criminal Court Cases 710 (Delhi).

157

Section 255.

158

2003(1) Criminal Court Cases 179 (Delhi).

159

Section 256.

160

2003(2) Criminal Court Cases 592 (P&H).

161

2002(1) Criminal Court Cases 181 (Guj.)

162

Section 257.

before the court on a specified date. The accused person also is informed that in case he desires to plead

guilty to the charge he may transit the said plea in writing and the amount of the fine as specified in the

summons may be sent by money order to the court. By virtue of Section 206(1) the accused can also pay the

fine through his pleader if he pleads guilty to the charge without actually appearing in the court in person.

TOPIC 29

SUMMARY TRIALS AND ITS PROCEDURES

(Ss.260-265)

Summary trial means speedy trial or shorter trial. Section 260 to 265 of the Code provides for summary

trials, which may be heard and concluded before a Magistrate as opposed to regular proceedings involving a

lengthy tedious procedure. Such trials are prescribed for minor offences with small proceedings. The Code of

Criminal Procedure (Amendment) Act 2005 has increased the amount in respect of value of the property upto

Rs. 2000.

Who are Competent?

By virtue of Section 260 any Chief Judicial Magistrate, Metropolitan Magistrate, and First Class

Magistrate are competent to try a case summarily.By virtue of Section 261 any Magistrate of second class if

empowered by the High Court in this behalf may summarily try any offence punishable with fine or with

imprisonment for a term not exceeding six months with or without fine and any abetment or attempt to

commit any such offence.

By virtue of Section 461(m) if any Magistrate not empowered to try in a summary manner tries an

offence summarily, the trial shall be void.

Summary Offences

By virtue of Section 260 (i-ix) the following are the summary offences:

1. Offences not punishable with death, imprisonment for life, or imprisonment for a term exceeding two years;

2. Theft, receiving or retaining stolen property, and assisting in the concealment or disposal of stolen property

whose value is not exceeding Rs. 2000;

163

3. Offences under Section 454 and 456 of I.P.C.;

4. Offence under S.20 of the Cattle Trespass Act, 1871;

5. Insult with intent to provoke a breach of peace under S.504 and 506 of I.P.C. with punishment for 2 years;

6. Abetment or attempt to commit any of the above offence.

Summary Procedure

No formal charge is framed. In case the accused is convicted a brief statement of the grounds of the

conviction shall be stated. No sentence of imprisonment for a term exceeding three months shall be passed in

the case of any conviction. By virtue of S.261, the High Court may confer powers to II class Magistrate to try

offences that are punishable with fine and sentence upto 6 months

164

. There is no appeal in a summary trial if

the accused is sentenced to fine not exceeding Rs. 200.

163

The Code of Criminal Procedure (Amendment) Act 2005.

164

Section 261.

TOPIC 30

AUTREFOIS CONVICT AND AUTREFOIS ACQUIT

(S. 300)

The Criminal Procedure Code is a procedural law, which prescribes the procedure for a criminal case in

India. It mainly deals with charge, arrest, investigation, inquiry, and trial. The Cr.P.C. contains certain

universal principles, which are necessary for the administration of criminal justice. For instance, it contains

the principles of natural justice and also certain constitutional principles. S.300 of the Code incorporates a

constitutional principle that is, the doctrine of double jeopardy

165

. It means that no person shall be convicted

for more than once for the same offence. By virtue Section 300, a person once convicted or acquitted cannot

be tried again for the same offence.

In Keciyo Coconut Oils Pvt. Ltd. v. State of Kerala

166

, the complaint was withdrawn and the accused

was acquitted. Later another complaint filed alleging commission of the same offence implicating one more

accused. The court held that second complaint is not maintainable.

In Gian Chand v. State of Punjab

167

, complaint filed under Sections 468 and 471 was dismissed and

brother of complainant instituted second complaint on same set of facts. Court held that second complaint is

not maintainable.

Illustrations

Mr. A is convicted for the murder of X. He cannot be tried again for the murder of X.

Mr. A is tried for the murder of X. He was acquitted. He cannot be tried again for that offence.

It is based on the maxim ‘Nemo Debat Bis Vexari’ which means that a man may not be put twice in peril for

the same offence.

Conditions to be fulfilled in order to apply this doctrine:

1. The wrong must be an offence;

2. There must be a punishment prescribed;

3. There must be a trial;

4. It must be by a court of competent jurisdiction;

5. The trial must end either in a conviction or in an acquittal.

If the above circumstances are fulfilled, the same person cannot be tried again for the same offence.

The whole basis of this Section is that the first trial should have been before a competent court. Suppose the

first suit was filed in an incompetent court but if it was dismissed on that ground then a second suit before the

proper court is perfectly valid. Nevertheless an appeal is not a second suit and it is the continuance of the

original suit.

What Section 300 prohibits is the second trial. There is a difference between acquittal and discharge.

An order of discharge is not a judgement. Sometimes for want of evidence or after a preliminary inquiry, the

accused can be discharged. In the case of a discharge, there is no detailed examination of evidence. But in the

case of acquittal the court will consider the evidence of both sides and decides that the accused is not guilty.

165

Article 20(2) of the Indian Constitution incorporates this principle.

166

2002(2) Criminal Court Cases 492 (KERALA).

167

2003(2) Criminal Court Cases 523 (P&H).

Thus an order of acquittal is a judgement. Under Section 300 a man who is discharged may again been

charged with the same offence. But a man who has been acquitted cannot be tried again for the same offence.

Double jeopardy rule does not apply in the case of conviction by foreign Court

In Rajan v. State of Kerala

168

, it was held that trial of accused under Section 420 IPC in India is not

barred by conviction of foreign court.

General Rules

It is another rule that a person when appointed as a prosecutor is not allowed to conduct a case in which

he himself has appeared for the accused. Similarly, the son of a judge or other near relatives cannot appear

because of the bias. Similarly, a Judge is not allowed to purchase anything in connection with a court sale.

According to S.480, no pleader who practices in the court shall sit as a Judge in that court or any court within

the local jurisdiction of that court.

TOPIC 31

LEGAL AID TO THE POOR

(S.304)

By virtue of Section 304, it shall be the duty of the State to provide him the legal assistance to defend

his case. The court shall assign a pleader for his defence at the expense of the state. In the Bihar blind

prisoner's case, the Supreme Court stressed the importance of the legal aid to the poor. In this case, the state

had argued that it lacks the fund. The SC rejected this contention. An integrated scheme was formulated in

India for the legal aid scheme. In the words of justice Krishna Iyer, "indigence should never be a ground for

denying fair trial or equal justice".

In State of Kerala v. Mohanan

169

, it was held that if the accused is in custody and he has not engaged a

counsel, the court has to see that legal practitioner defends him. If an accused refuses to have the service of a

counsel, the court cannot thrust it on him. No person accused of any offence, whose personal liberty is in

jeopardy, shall be denied the right of free legal aid at the cost of state if he is not in position to engage a

lawyer for defending him.

TOPIC 32

POWER TO EXAMINE THE ACCUSED

(S.313)

Powers of the Judge to Ask Questions to the Accused or Witnesses

By virtue of Section 313 (1) (a) the judge or the Magistrate trying an accused person may at any stage of

the inquiry or trial put such question to the accused, as the court considers necessary.

168

2003(2) Criminal Court Cases 439 (Kerala).

169

1987(2) KLT 64).

By virtue of Section 313 (1) (b) after the witnesses for the prosecution have been examined and before

the accused is called upon for his defence, the judge shall question him generally on the case. Thus Section

313 of the Cr.P.C confers a power to the judge to examine the accused.

1. This power can be exercised at any stage;

170

2. No oath is necessary.

171

Accused is not bound to answer;

3. There is no conviction for non-answering or compulsion for answering.

172

The purpose of the Section is to give an opportunity for the accused to explain personally on any

circumstances regarding the crime. According to S. 313 (4) "the answers given by the accused may be taken

into consideration.

Rights of an Accused Person in a Criminal Trial

The accused in a criminal case has the right to defend himself with the aid of any legal practitioner of

his choice. The accused person is a competent witness for himself for his defence. He may give evidence on

oath in disproof of the charge made against him under Section 315. But, an accused person shall not be

compelled to be a witness. Under S.316 Cr.P.C no influence by means of any promise or threat or otherwise

shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge. The

accused has also an opportunity before he enters on his defence to explain to the court the circumstances

appearing in the evidence against him while the court under S. 313 examines him. The trial of the case should

be conducted ordinarily in the presence of the accused. Under our criminal law, the burden or proving the

charge against the accused is on the prosecution.

TOPIC 33

TENDER OF PARDON TO THE ACCOMPLICE

(S. 306)

According to Section 306(1), with a view of obtaining the evidence of any person supposed to have

been directly or indirectly concerned in or privy to an offence, the CJM, Metropolitan Magistrate or

Magistrate of First Class can tender pardon to such person on some conditions.

By virtue of S. 306(2), the offence in respect of which pardon can be granted are-

1. Offences triable exclusively by Court of Session.

2. Offences triable by the court of Special Judge appointed under Criminal Law Amendment Act,

1952.

3. Offences punishable with imprisonment for a term, which may extent to seven years or with more

severe sentence.

By virtue of Section 306 (3) every Magistrate who tenders a pardon under sub-section (1) shall record-

(a) His reasons for so doing;

170

Section 313 (1) (a).

171

Section 313 (2).

172

Section 313 (3).

(b) Whether the tender was or was not accepted by the person to whom it was made, and shall, on

application made by the accused, furnish him with a copy of such record free of cost.

By virtue of Section 306 (4) every person accepting a tender of pardon made under sub-section (1)-

(a) Shall be examined as a witness in the court of the Magistrate taking cognizance of the offence and in

the subsequent trial, if any;

(b) Shall, unless he is already on bail, be detained in custody until the termination of the trial.

By virtue of Section 306 (5) where a person has accepted a tender of pardon made under sub-section

(1) and has, been examined under sub-section (4), the Magistrate taking cognizance of the offence shall,

without making any further inquiry in the case.-

(a) Commit it for trial-

(i) To the Court of Session if the offence is triable exclusively by that court or if the Magistrate taking

cognizance is the Chief Judicial

Magistrate;

(ii) To a court of Special Judge appointed under the Criminal Law Amendment Act 1952, if the offence is

triable exclusively by that court;

(b) In any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.

Power to Direct Tender of Pardon

By virtue of Section 307 at any time after commitment of a case but before Judgment is passed, the

court to which the commitment is made may, with a view, to obtaining at the trial the evidence of any person

supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender a pardon on the

same condition to such person.

Trial of Person not Complying with Conditions of Pardon

By virtue of Section 308(1) where, in regard to a person who has accepted a tender of pardon made

under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either the

condition on which the tender was made, such person may be tried for the offence in respect of which the

pardon was so tendered or for any other offence of which he appears to have been guilty in connection with

the same matter, and also for the offence of giving false evidence:

Provided that such person shall not be tried jointly with any of the other accused:

Provided further that such person shall not be tried for the offence of giving false evidence except with the

sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence.

By virtue of Section 308 (2) any statement made by such person accepting the tender of pardon and

recorded by a Magistrate under section 164 or by a court under sub-section (4) of section 306 may be given in

evidence against him at such trial.

By virtue of Section 308 (3) at such trial, the accused shall be entitled to plead that he has complied

with the condition upon which such tender was made, in which case it shall be for the prosecution to prove

that the condition has not been complied with.

By virtue of Section 308(4) at such trial the court shall-

(a) If it is a Court of Session, before the charge is read out and explained to the accused;

(b) If it is the court of a Magistrate before the evidence of the witnesses for the prosecution is taken, ask

the accused whether he pleads that he has complied with the conditions on which the tender of pardon

was made.

By virtue of Section 308 (5) if the accused does so plead, the court shall record the plea and proceed

with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied

with the conditions of the pardon, and, if it finds that he has so complied, it shall notwithstanding anything

contained in this Code, pass judgment of acquittal.

Magistrates Empowered to Tender Pardon

Section 460 of the Code provides that if any Magistrate not empowered so, erroneously but in good

faith tender such pardon, his proceedings shall not be set-aside merely on the ground of his not being so

empowered.

In Mitra Prasad Rai v. State of Sikkim

173

, it was observed that an accomplice by becoming an approver

becomes a prosecution witness and therefore his evidence must pass the double test viz. (i) his evidence must

be reliable and (ii) it should be sufficiently corroborated.

In State v. Saravanan & Anr

174

, it was held that accused cannot claim right to cross examine approver

before committal Court.

TOPIC 34

COMPOUNDABLE AND NON-COUMPOUNDABLE OFFENCES

(S.320)

Compounding of Offences

The Cr.P.C contains table giving the offences that are compoundable and the persons by whom the

offences can be compounded. S.320 of Cr.P.C provides that the offences under I.P.C that are given in the

table below Sub-Section 1 are compoundable by the person who is mentioned in the third column of the said

table. But the offences under the penal Code that are given in the table below Sub-Section 2 of S.320 are

compoundable only with the permission of the court before which the cases is pending.

The expression compoundable offence means that the person against whom the offence has been

committed has received some gratification (not necessary money) to act as an inducement for his desiring to

abstain from a prosecution.

In Banwari & Ors. v. State of Rajasthan

175

, it was observed that there is no use of proceeding with trial

when complainant does not want to pursue the matter and trial court directed to permit parties to compound

the offence and close the proceedings.

When an offence is compounded, it has the effect of an acquittal. Only those offences, which are

mentioned in the table attached under S.320, can alone be compounded. A case may be compounded at any

time before sentence is pronounced. A compoundable offence can be compounded even in appellate stage.

173

2004(4) Criminal Court Cases 601 (Sikkim).

174

2004(2) Criminal Court Cases 571 (Madras).

175

2002(2) Criminal Court Cases 707 (Rajasthan).

This compromise or composition is termed compounding of the offence. In respect of the offence

mentioned in sub-section (1) of Section 320 composition can be affected without the permission of the court.

In respect of those offences mentioned in sub-section 2 of Section 320 which are comparatively of a more

serious character permission of the court is necessary which decides judicially whether in the interest of

justice the parties should be allowed to compromise the dispute. When an offence is compounded the order of

the court is an order of acquittal and not of discharge. Offences other than those mentioned in Section 320 are

not compoundable. They are the offence of serious nature.

In Bankat & Anr. v. State of Maharashtra

176

, permission to compound offence punishable u/s 326 IPC

rightly refused by High Court.

In Mrs. Anita v.State of Punjab

177

, it was held that when the offence committed is not compoundable, it

cannot be compounded at all even with the permission of the Court.

Adversely in Rameshwar v. State of Rajasthan

178

, though offence under Section 498-A was not

compoundable, the parties were allowed to compound in view of object of matrimonial law to facilitate a

happy and harmonious matrimonial life between spouses.

TOPIC 35

WITHDRAWAL FROM PROSECUTION

(S.321)

The public prosecutor is in charge of the prosecution in a criminal case. In Sessions cases a Public

Prosecutor shall always conduct the prosecution. In the Magistrate court, the Assistant Public Prosecutor

conducts the prosecution on behalf of the State. The Public Prosecutor has the power to withdraw from the

prosecution with the permission of the court.

In Ram Chander, DSP (Retd.) v. The State of Haryana

179

, it was observed that withdrawal by public

prosecutor can be at any time before pronouncement of judgment with consent of court. If Court comes to the

conclusion that public prosecutor moves application in a bonafide manner, then it is discretion of court to

permit withdrawal.

S.321 Cr.P.C lays down that the public prosecutor in charge of a case may with the consent of the court

withdraw from the prosecution of any person before the judgment of the case is pronounced. If the

withdrawal is made before the charge has been framed the accused shall be discharged in respect of such

offence or offences.

180

If the application for withdrawal is filed by the public prosecutor after the charge is

framed, the court shall acquit the accused.

181

In Gupta Kumar Sundas v. State of Sikkim

182

, it was held that in the case of withdrawal from

prosecution, paramount consideration should be the interest of administration of justice.

176

2005(1) Criminal Court Cases 931 (S.C.).

177

2002(2) Criminal Court Cases 609 (P&H).

178

2002(1) Criminal Court Cases 247 (Raj.).

179

2003(2) Criminal Court Cases 194 (P&H).

180

Section 321(a).

181

Section 321(b).

182

2004(4) Criminal Court Cases 351 (Sikkim).

TOPIC 36

PROVISIONS AS TO ACCUSED PERSONS OF UNSOUND MIND

(Ss.328-339)

Chapter XXV of the Cr.P.C. deals with special provision relating to an accused person who is of

unsound mind. This is in accordance with a basic principle of administration of criminal justice i.e. the

accused must know the accusation and he must be provided an opportunity to defend his case.

Procedure

1. According to Section 328, if the Magistrate has reason to believe that the accused is an unsound

minded person at the trial, he shall pass an order for the examination of the accused by a doctor and that

doctor will be examined as a witness and till then the trial is postponed. The phrase “reason to believe” means

a belief, which a reasonable person would entertain on facts before him.

In Gordhan Lal v. State of Rajasthan

183

, it was observed by the court that if the court is satisfied after

considering medical and other evidence that accused is of unsound mind and incapable of making his defence,

it shall record a finding to that effect and shall postpone further proceedings in the case. Further the trial of the

fact of unsoundness of mind and incapacity of the accused shall be deemed to be part of his trial before the

Court.

2. According to Section 330 if the accused is found to be an unsound minded person, the court may

release him on sufficient security. He must be taken care of by such person and must be produced when

directed by the court or he will be sent to a mental hospital. Such release is based upon the fact whether the

offence is bailable or not. The trial must be postponed.

3. On satisfaction of the court, the trial will be resumed.

184

In Bhanumati Devi v. State of Tripura

185

, an accused was found insane and trial was postponed against

him. It was further held that trial could proceed against prudent accused.

4. The question is whether at the time of the commission of the act he was an unsound person. The

judgement must clearly state whether he committed the act or not. If he deserves the acquittal the

order must be passed accordingly.

186

If the accused is acquitted, he may be sent for proper custody in a

lunatic asylum or to a relative or a friend.

187

He should be send to the custody of the relative or friend

only on the application of such relative or friend and on his giving security to the satisfaction of the

Magistrate or court that the person delivered shall

(a) Be properly taken care of and prevented from doing in injury to himself or to any other person;

183

2005(1) Criminal Court Cases 495 (Rajasthan).

184

Section 331.

185

2002(2) Criminal Court Cases 517 (Gauhati).

186

Section 334.

187

Section 321(a).

(b) Be produced for the inspection of such officer, and at such times and places, as the State Government

may, direct.

188

TOPIC 37

APPEALS

(Ss.372-394)

Appeal means the right of carrying a particular case from an inferior court to the superior court with a

view to ascertain whether the judgement is sustainable. Section 372 specifically provides that no appeal shall

lie from any judgement or order of a criminal court except as provided by the Code or by any other law for the

time being in force. Thus the right to appeal in the criminal cases is only a statutory right.

Appeal to the Supreme Court

Appeal lies to the Supreme Court under Art.134 of the Constitution. The following are the rules for

appeals from the High Court’s judgment, final order, or sentence in criminal proceedings.

1. If the lower court has acquitted the accused person, but if the High Court in appeal has convicted him, then

appeal will lie to the Supreme Court even without the certificate by the High Court.

In Moijullah v. State of Rajasthan

189

, the court observed that there is no justification for interference in

appeals against acquittal when the findings recorded by High Court are reasonable and possible on the basis of

evidence on record.

2. If the High Court withdraws a case pending in lower court and has convicted him to death, then appeal will

lie to the Supreme Court.

In Kamalakar Nandram Bhavsar & Ors. v. State of Maharashtra

190

, it court held that when conviction

is maintained in appeal, matter need not be remanded and Supreme Court can hear on sentence and pass

appropriate sentence.

3. In all other cases if the High Court certifies that the case is fit for appeal to the Supreme Court.

4. If any person is convicted by a Sessions Judge or Additional Sessions Judge or by any court in which he has

been sentenced to more than seven years, he may appeal to the High Court.

191

Any person convicted or tried

by a Metropolitan Magistrate or Asst. Sessions Judge or Judicial First Class Magistrate or the Second Class or

a person sentenced under S.325 or in respect of whom an order has been made or a sentence has been passed

under S.360 Cr.P.C, may appeal to the Sessions Court.

Non-Appealable Cases

Section 375 of the Code provides that if an accused person has pleaded guilty and has been convicted on

such plea then there can be no appeal. However, the legality and the period of sentence may be questioned by

way of an appeal. The object of this provision is that the accused person has waived his right by appeal by

pleading guilty.

188

Section 335(1)(b)..

189

2004(1) Criminal Court Cases 819 (S.C.).

190

2003(2) Apex Court Judgments 674 (S.C.).

191

Section 374(2).

No Appeal in Petty Cases

By virtue of Section S.376 (1) no appeal lies from a petty case -

1. If the High Court has passed a sentence of imprisonment upto six months or fine not exceeding Rs.1, 000 or

of both imprisonment and fine;

192

2. If the Court of Session of Metropolitan Magistrate has passed sentence of imprisonment upto three months

or fine not exceeding Rs.200 or both;

193

3. Magistrate has passed a sentence of fine not exceeding Rs.100;

194

4. In a summary trial by a Magistrate, where the sentence or fine does not exceed Rs 200;

195

Proviso to S.376 states that an appeal may be brought against the above four sentences if any other

punishments are combined with it .Such sentences shall not be appealable merely because there is:

1. An order to furnish security to keep the peace;

2. A direction for imprisonment for default of payment of fine;

3. If two or more sentences or fine are passed subject to limit mentioned in the above 4 cases, then

appeal may not be allowed. The reason is that combined punishment is not severe but only trivial.

Simultaneously conviction for several offences must be considered as single sentences for the purpose

of appeal.

Appeal by State Government

According to Section 377 the State Government may direct the public prosecutor to present an appeal to

the High Court against the sentence passed by the Sessions Court, etc., on the ground that the punishment is

inadequate. In the same way, the Central Government may direct the public prosecutor to present an appeal to

the High Court against the grounds of the inadequacy of the sentence. However reasonable opportunity should

be provided to the accused to show cause as to why the punishment should not be enhanced. The accused

may plead for acquittal or for the reduction of the sentence in such appeal before the High Court.

In Vijayendra Kumar v. State of Bihar & Anr

196

,Supreme Court observed that trial Court had gone into

all details of oral and documentary evidence and the conclusions drawn on the basis thereof are correct and

that High Court need not to discuss oral and documentary evidence on record, which may only result in

repetition. It was held that the approach of High Court is perverse.

Appeal from Acquittals

Appeal lies from acquittals in the following cases:

1. The complainant may prefer an appeal to the High Court against the order of the acquittal of the lower

court. Such appeal is allowed by the High Court only if it is preferred before the expiry period of 60 days

from the date of the order of acquittal by such lower court.

197

2. The State Government may direct the Public Prosecution to present an appeal before High Court against the

order of acquittal of the accused by the lower court.

198

192

Section 376(a)

193

Section 376(b)

194

Section 376(c)

195

Section 376(d)

196

2005(1) Criminal Court Cases 876 (S.C.).

197

Section 378(5).

3. In all cases of appeal against the acquittal of the accused, the appeal can only lie to the High Court and no

other court.

4. In the appeal, if the High Court convicts the accused and sentences him to death or imprisonment for life or

for a term of imprisonment of 10 years, then the accused may appeal to the Supreme Court.

199

5. If more than one person is convicted in one trial and an appealable judgment has been passed in respect of

any of such person, all the persons shall have the right or appeal against such conviction to the Supreme

Court.

200

Appeal to Court of Sessions

In appeal to the Court of Sessions, the Sessions Judge shall hear it

201

. An appeal against a conviction on

trial by a II class Magistrate can be heard by the Assistant Sessions Judge or by a Chief Judicial Magistrate.

The Sessions Judge or the High Court, by the special order, may direct the Additional Sessions Judge or

Assistant Sessions or a Chief Judicial Magistrate to hear such appeal as directed by them.

202

In K. Pandurangan etc. v. S. S. R. Velusamy & Anr

203

, it was held that right to appeal is a statutory right.

Deprivation of statutory right of appeal amounts to denial of procedure established by law. Appellant was

denied an opportunity of agitating their case on facts. Thus it was held that the impugned judgment is liable to

be set aside.

Procedure for Filing an Appeal

Appeal shall be made in the form of writing a petition. The appellant or his advocate presents it. A

copy of the judgement against which the appeal is preferred must accompany with the petition of appeal

204

. If

the appellant is in jail, he may present his petition to the jailer who shall forward it to the Appellant Court.

205

On receipt of the petition, the Appellant Court peruses the petition and the relevant records. If there are

no adequate grounds for such appeal it may dismiss the appeal summarily. However, an opportunity to be

heard must be given to the appellant or his advocate

206

. No appeal shall be dismissed until the expiry of the

period allowed for preferring such appeal.

207

The Appellate court must record the reasons for dismissal of the

appeal petition if the appeal is from court of Sessions or a Chief Judicial Magistrate

208

. If the appeal is not

dismissed, then notice must be served on the appellant, the officer of the State Government and complainant,

if it is a complaint case.

209

Procedure of Hearing the Appeal

If an appeal is from and order of acquittal, the Appellate Court may do the following:

1. Find the accused guilty and sentence him according to law;

198

Section 378(1)(b)

199

Section 379.

200

Section 380.

201

Section 381(1) .

202

Section 381(2)

203

2004(1) Criminal Court Cases 727 (S.C.).

204

Section 382.

205

Section 383.

206

Proviso to Section 384(1)(b).

207

Proviso to Section 384(1)(c).

208

Section 384(3).

209

Section 385(1).

2. It may direct the lower court to make further enquiry or retrial of accused or commit for trial before

Magistrate.

210

If the appeal is from an order of conviction, the Appellate Court may do the following:

a) Reverse the finding and acquit or discharge the accused;

b) Order retrial of the accused or commitment for trial;

c) May alter the sentence;

d) May alter the finding maintaining the same sentence;

e) May alter the nature of the sentence but not by enhancing it;

f) May enhance the sentence after giving opportunity to the accused to show cause as to why the punishment

should not be enhanced.

211

The appeal must be pronounced in the form of judgement or order. It must be in written form in which

reasons are recorded. The Appellate Court may also release the accused on bail or on his personal bond.

212

The Code of Criminal Procedure (Amendment) Act, 2005 amended Section 389 and proviso (1) and (2)

were inserted. By the proviso (1) the appellate court shall give opportunity to Pubic Prosecutor for showing

cause against release of accused. Proviso (2) states that where a convicted person is released on bail it shall be

open to the Public Prosecutor to file an application for the cancellation of the bail.

The High Court is empowered to issue a warrant of arrest of the accused who has been acquitted by the

lower court. The Appellate Court may take additional evidence in appeals after recording reasons for such

taking of additional evidence. The accused or his advocate shall have the right to be present at the time of

taking such additional evidence

213

In the case of difference of opinion among the Judges in the Appellate Court, all their opinions are

recorded. The case is transferred to another Judge of the same court if the opinions of the earlier judges are

equally divided. The opinion of the latter judge is final.

214

Appeals from acquittals abate on the death of the accused persons. In the case of fines, the death of the

Appellant will not have any affect. The fine is collected from the near relatives of the accused.

215

In Sanal Kumar v. Rajeev Kumar

216

, it was held that appeal abates only on death of accused and not on

death of complainant.

TOPIC 38

REFERENCE AND REVISION

(Ss.395-405)

210

Section 386(1)(b).

211

Section 386(c).

212

Section 389.

213

Section 391.

214

Section 392

215

Section 394.

216

2004(2) Criminal Court Cases 545 (Kerala).

Reference

Reference can be made only on questions of law and must arise on the hearing of a case. A reference is

always made where the court needs guidance from the Superior Court. The need for such guidance is

generally from the High Court. The question of law may relate to the validity of an Act or Ordinance or

Regulation or any other question of law. The court, which hears the cases, must form an opinion that some

Act or ordinance or regulation or legal provision is invalid or inoperative. However, the High Court must not

have already declared such Act etc, as invalid or inoperative.

The subordinate court must follow the following procedures:

1. The court must state the cases with facts and relevant legal provisions;

2. It must state its opinion and reasons for the same about the case pending before it;

3. It must be related to any question of law in a case pending before it.

217

Pending the decision from the High Court, the Magistrate may either release the accused on bail or on

bond.

218

After the High Court’s decision on such reference is received, the Magistrate must dispose of the

case according to the legal clarifications issued by the High Court.

219

Revision

Revision lies on a point of law only. It may lie in both pending and decided cases. The High Court or

the Sessions Judge has the power of revision. They call for and examine the records to check its correctness,

legality of finding or any sentence or order.

220

Explanation to S. 397(1) states that all Magistrates are inferior

to the Sessions Judge.

Proviso to the Section states that no court shall make any direction under this section for inquiry into the

case of any person who has been discharged unless such person has had an opportunity of showing cause why

such direction should not be made.

The following are the methods by which revision is entertained by Sessions Judge or the High Court:

1. The aggrieved party may give a petition or revision to the Sessions Judge or the High Court;

2. The Sessions Judge or the High Court may entertain a revision proceeding or order the inferior courts to

make further inquiries. The court may hear any party personally or by pleader. However, it is not a legal right

for the party to be heard. No order can be passed to the prejudice of the accused at any stage of revision by

any court without giving him sufficient opportunity to be heard.

High Courts Powers of Revision

By virtue of Section 397 the High Court may exercise revisionary jurisdiction, either at the preliminary

stages of a trial or at its final stage. It can pass orders for further enquiry into a dismissed complaint where the

dismissal was due to non-deposit of process fees. The High Court has got power to call for the records of any

proceedings of any court and hear the revision petition. If the judges are equally divided in opinion then the

case is heard by another judge whose verdict is final. There can be no conviction in an order of acquittal in

such revision proceedings.

217

Section 395 (1).

218

Section 395 (3).

219

Section 396 (1).

220

Section 397 (1).

Section 402(1) runs as follows; whenever one or more persons convicted at the same trial makes or

make application to a High Court for revision and any other person convicted at the same trial makes an

application to the Sessions Judge for revision, the High Court shall decide, having regard to the general

convenience of the parties and the importance of the question involved, which of the two courts should finally

dispose of the applications for revision and when the High Court decides that all the application for revision

should be disposed of by itself, the High Court shall direct that the applications for revision pending before the

Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to

dispose of the applications for revision, it shall direct that the applications for revision made to it be

transferred to the Sessions Judge.

In Ram Prakash v. State of H.P

221

, interlocutory order can be revised by the HC under Section 482 in

the exercise of its inherent powers if there is miscarriage of justice or illegal exercise of jurisdiction.

Adversely in State Rep. by Inspector of Police & Ors. v. N.M.T.Joy Immaculate

222

, it was held that as

the remand order was interlocutory order, revision against such an order does not lie.

In Sudesh Kumar & Ors.v. State of Delhi, it was held that framing of charge is not an interlocutory

order as it affects material rights of the parties and revision was held maintainable.

In Munna Devi v. State of Rajasthan

223

, it was held that the High Court has no authority to appreciate

the evidence in the manner as the trail and the appellate courts are required to do. Revisional powers could be

exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or

the framing charge or the facts as stated in the First Information Report even if they are taken at the face value

and accepted in their entirety do not constitute the offence for which the accused has been charged.

Revision by Court of Sessions

The Sessions Judge is competent to entertain revision petition and make directions to the inferior

Magistrate for further enquiry of the case. An Additional Sessions Judge exercising the same power of

Sessions Judge, may hear a revision petition by the general or special orders of the Sessions Judge. The

Sessions Judge may exercise the powers exercisable by the High Court and as such, he can call for records for

perusal from inferior courts.

224

The decision of the Sessions Judge in any revision petition is final and no

further revision petition can be entertained by the High Court in the same case. Similarly there can be no

revision after expiry of limitation period.

In Ramkrishna Jairam Damdar v. Savita

225

, it was held that limitation on criminal revision application

is governed by Section 131 of the Limitation Act.

When any record is called for, the Magistrate must submit such record with a written statement of the

grounds of his decision or order in that particular case. After the revision petition is disposed of by the High

Court or the Sessions Court, the Magistrate must make such orders as per the directions given by the superior

courts.

221

1979 Cri.L.J. 750.

222

2004(3) Criminal Court Cases 669 (S.C.).

223

AIR 2002 SC 107.

224

Section 399(1) (2)

225

2002(2) Criminal Court Cases 508 (Bombay).

In Behram S.Doctor v. State of Maharashtra

226

, court observed that it is duty of revisional court to

correct all the mistakes in the proceedings or in the action of subordinate Courts which have been brought to

its notice or come to its notice suo moto.

Difference between Appeal and Revision

Appeal

1. Appeal lies on both questions of fact and of law.

2. An appeal lies only after the decision of the case by the original court.

3. In appeal from conviction the punishment can be enhanced by the appellate court.

4. The appeal consists of only one stage.

Revision

1. It lies only on points of law.

2. It lies even in pending cases

3. In revision cases, the punishment cannot be enhanced.

4. It consists of two stages preliminary or final stage of proceedings of the lower court.

Difference between Reference and Revision

Reference

1. It is made by the court itself.

2. Reference is made seeking guidance from the High Court.

3. It lies only to the High Court.

4. In reference, the court asking for guidance must set out the facts of the case; state its opinion and reasons

for the same.

5. The guidance is sought only in pending case if the validity of any Act, Ordinance or Regulation or any

other legal provision is questioned

Revision

1. It is made by the aggrieved party or suo-moto by the High Court or Sessions Judge.

2. Revision is made for orders to re-conduct the proceedings by the lower courts.

3. It lies either to the High Court or the Sessions Judge.

4. No such procedure is followed by lower court.

5. It is made by the aggrieved party who finds fault with the decision of the lower court.

TOPIC 39

TRANSFER OF CRIMINAL CASE

(S 406 to 412)

The Cr.P.C. makes provision for the transfer of a case from one court to another. The spirit behind such

transfer is to protect justice. Suppose a court convicts an accused for five times. He was again charged for

226

2003(3) Criminal Court Cases 638 (Bombay).

sixth time for an offence before the same court. Naturally the judge will be prejudiced towards him or he may

decide it with a pre-conceived decision. So this case must be transferred to another court. The transferring

power is conferred to the Supreme Court, the High Court and Sessions Court.

A case is transferred if there is a reasonable apprehension on the part of any party to the case that justice

will not be done. A petition is not required to demonstrate that, justice will inevitably fail. He is entitled to a

transfer if he shows circumstances from which it can be inferred that he entertained an apprehension and that

it is reasonable in the circumstances alleged.

In Mrs. Urvashi Govind Advani v. State of Karnataka

227

, petitioner was a widow, aged 80 years and

suffering from cancer and it was not possible for her to effectively defend herself at Bangalore. Court allowed

transferring case to court at Bombay.

It is one of the principles of administration of justice that “justice should not only be done but it should

be seen to have been done”. However, a mere allegation that there is apprehension that justice will not be

done in a given case does not suffice. Personal attack of the court is not proper. The grounds must be

reasonable.

In Madan Lal v. CBI/ACU-III New Delhi

228

, it was observed that transfer of a case on the mere asking

of an apprehensive litigant will not only scandalize the Court but browbeating the presiding officer also and

thereby causing direct interference in the independent and fair administration of justice.

Transferring Power of the Supreme Court

The S.C the highest court has the power to transfer a case from one court to another “for the end of

justice”. By virtue of Section 406 the S.C. may direct that a case or an appeal be transferred from one High

Court to another High Court, or from a criminal court subordinate to one High Court to a criminal court

subordinate to another High Court.

Transfer by High Court

By virtue of Section 407(1) High Court may transfer a criminal case under following circumstances:

1. The fair and impartial enquiry cannot be had if the case is not transferred;

2. That the case involves a question of law of unusual difficulty;

3. That the Cr.P.C. requires that the transfer is necessary for the convenience of the party or witness or in the

interest of justice. The HC has the power to transfer a case or appeal pending before a Sessions Court to

another Sessions Court in a state or from one court under a Sessions Court to another court under another

Sessions. Every application for transferring the case shall be supported by Affidavit or affirmation. However it

is not necessary if the applicant is Advocate General or the State

229

By virtue of 407 (2) the High Court may act either on the report of the lower Court, or on the

application of a party interested, or on its own initiative: Provided that no application shall lie to the High

Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division,

unless an application for such transfer has been made to the Session Judge and rejected by him.

227

2005(1) Criminal Court Cases 252 (S.C.).

228

2004(4) Criminal Court Cases 620 (P&H).

229

Section 407(3).

By virtue of 407 (3) every application for an order under 407 (1) shall be made by motion, which shall,

except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

By virtue of 407 (4) when such application is made by an accused person, the High Court may direct

him to execute a bond, with or without sureties, for the payment of any compensation which the High Court

may award under 407 (7).

By virtue of 407 (5) every accused person making such application shall give to the Public Prosecutor

notice in writing of the application, together with a copy of the grounds on which it is made, and no order

shall be made on the merits of the applications unless at least twenty-four hours have elapsed between the

giving of such notice and the hearing of the application.

By virtue of 407 (6) where the application is for the transfer of a case or appeal from any Subordinate

Court, the High Court may if it is satisfied that it is necessary so to do in the interest of Justice, order that,

pending the disposal of the application the proceedings in the Subordinate Court shall be stayed, on such

terms as the High Court may think fit to impose: Provided that such stay shall not affect the Subordinate

Court's power of remand under Section 309.

By virtue of 407 (7) where an application for an order under sub-section (1) is dismissed, the High

Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way

of compensation to any person who has opposed the application such sum not exceeding one thousand rupees

as it may consider proper in the circumstances of the case.

By virtue of 407 (8) when the High Court orders under sub-section (1) that a case be transferred from

any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have

observed if the case had not been so transferred.

Power of Sessions Judges

Under Section 408 a Sessions Judge has the power to transfer a case from one court to another within

his jurisdiction. The grounds and the other rules are the same as in the case of HC except compensation,

which is fixed as Rs. 250/- When a court is transferring a case the reasons for such transfer must be recorded.

In Gurcharan Singh Pherurai v. State of Punjab

230

, petitioner apprehended danger to his life and case

transferred from Ferozepur to Sessions Division, Ambala. H.C upheld the decision.

TOPIC 40

BAIL AND BONDS

(Ss.436-450)

Bail means release of an accused person from the custody of the Officers of law on furnishing surety

or on accepting certain conditions. A person released on bail may give a bond himself or any other person may

also give his bail for the security of appearance of such person. The person giving bail enters into a contract

with a penalty clause to produce the accused before the Magistrate whenever called upon.

The Supreme Court held in Babu Singh Vs. State of U.P. 1984 SC 527 held that refusal to grant bail must be

rare and therefore it can be said that “Bail is the rule and Jail is an exception:”

230

2003 (3) Criminal Court Cases 711 (P&H).

Bail is matter of right in bailable offences. It is a conditional release of the accused under two objects:-

1. To grant personal liberty to him so that he can defend;

2. To assure his appearance in inquiry or trial.

The officer in charge of a police station or the court before which he appears may grant bail to the

accused on his executing a personal bond with or without surety for his appearance

231

. If the accused who was

on the bail has jumped bail i.e. failed to comply with the conditions of the bail bond as regards the time and

place of attendance, the court may refuse to release him on bail, on a subsequent occasion.

232

In Talab Haji Hussain v. Madhukar Purshottam Mondkar

233

, it was held that Section 436 gives an

unqualified, absolute and indivisible right on the accused to be released on bail.

Similarly juveniles in certain cases are entitled to get bail, in Gopu Dlaiah v. State of Andhra

Pradesh

234

, it was held that a juvenile when accused of an offence under NDPS Act is entitled to bail.

Non-Bailable Offence and Rule Regarding Bail

By virtue Section 437 in the case of non-bailable offence the accused cannot claim the bail as a matter

right. Granting of the bail is at the discretion of the police officer or the court.

Bail by Officer in Charge of Police Station

By virtue Section 437(1) if a person accused of any non-bailable offence is arrested or detained without

warrant by an officer in charge of police station or appears or brought before a court other than the High Court

or Court of Sessions, such officer may release him on bail. However accused may not be released on bail

under following circumstances:

1. If the officer has reasons to believe that the offence is punishable with death or imprisonment for life, then

bail is refused;

2. If such offence is cognisable offence and he had been previously convicted of an offence punishable with

death, imprisonment for life or seven years or more, or he had been previously convicted on two or more

occasions of a cognisable offence punishable with imprisonment for three years or more but not less than 7

years;

235

3. If he had been convicted previously for two or more occasions of non-cognisable and non-bailable offence.

In Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav & Anr

236

, it was held that conditions

laid under Section 437 (1) are sine qua non for granting bail even under S.439.

By virtue of 437 (2) if it appears to the Magistrate at any stage of investigation, inquiry or trial, that

there are no reasonable grounds for believing that he has committed non-bailable offence, he shall be released

on bail.

Bail by Officer of Court

231

Section 436 (1).

232

Section 436 (2).

233

A.I.R.1956 S.C. 376.

234

2002(2) Criminal Court Cases 204 (A.P.).

235

Inserted by the Code of Criminal Procedure (Amendment) Act 2005, S.36.

236

2004(2) Criminal Court Cases 340 (S.C.).

1. By virtue of Section 437(4) in non-bailable offence, the officer of the Court may release the accused on

bail after recording reason in writing.

2. If the officer of the Court has reasons to believe that the offence is punishable with death or imprisonment

for life, then bail is refused.

3. If the accused is under 16 years of age or is a woman or a sick person, then the court may grant bail.

237

4. If in the course of trial, the Magistrate thinks that the accused has committed only a bailable offence, and

then he can grant bail.

238

5. After the conclusion of trial, if the court thinks that the accused has committed any offence, and then the

can grant bail.

6. After the conclusion of trial but before the delivery of judgement, if the court thinks that accused is not

guilty, it may release the accused on his personal bond for his appearance to hear the judgement.

239

In State of Maharashtra v. Sitaram Popat Vetal and Another

240

, it was observed that there is a need to

indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an

accused was charged of having committed a serious offence. It is necessary for the courts dealing with

application for bail to consider among other circumstances, the following factors also before granting bail.

They are:

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting

evidence;

2. Reasonable apprehension of tampering the witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the court in support of the charge.

In Shivasumbramanyam v. State

241

, it was held that material consideration for granting bail is whether

accused would be readily available for trail and whether he is likely to abuse the discretion granted in his

favour. Further conditions can be imposed to relieve apprehension of state.

However accused may not be released on bail under following circumstances.

a. If the officer has reasons to believe that the offence is punishable with death or imprisonment for life,

then bail is refused;

b. If such offence is a cognisable offence and he had been previously convicted of an offence punishable

with death, imprisonment for life or seven years;

c. If he had been convicted previously in two or more occasions for the commission of non-cognisable and

non-bailable offence.

6. No person shall, if the offence alleged to have been committed by him is punishable with death,

imprisonment for life or imprisonment for seven years or more, may be released on bail by the court under

Section 437(1) without giving opportunity of hearing to Public Prosecutor

242

237

Proviso to Section 437(1) states that the court may direct that such a person be released on bail if such a person is under the age of

16 years or is a woman or is sick or infirm.

238

Section 437(2).

239

Section 437(4).

240

2004 (7)SCC 521.

241

2002(2) Criminal Court Cases 373 (Karnataka).

CANCELLATION OF BAIL

The Court may cancel the Bail granted in the following circumstances:-

1. When the person commits the very same offence while on bail.

2. When he intentionally causes obstructions to the police officers or Court Officers.

3. When he intentionally and forcibly prevents the search of place under his control.

4. Where he tampers with the evidence or humiliating, intimidating or threatening the prosecution witnesses.

5. When he tries to abscond or run away to a foreign country or any other State.

6. If he behaves violently in revenge with the Police or Court Officers.

Anticipatory Bail

Section 438 of the Code, which provides for anticipatory bail has been substituted by Section 38 of the

Code of Criminal Procedure (Amendment) Act 2005. Thus according to Section 438 (1)

243

where a person has

reason to believe that he may be arrested on accusation of having committed, a non-bailable offence, he may

apply to the High Court or the Court of Sessions for a direction under this section that, in the event of such

arrest he shall be released on bail; and the court may, after taking into consideration, inter alia the following

factors, namely:-

1. The nature and gravity of the accusation;

2. The antecedents of the applicant including the fact as to whether he has previously undergone

imprisonment on conviction by a Court in respect of any cognisable offence;

3. The possibility of the applicant to flee from justice;

4. Where the accusation has been made with the object of injuring or humiliating the applicant by having

him so arrested.

According to 438(1A)

244

High Court or the Court of Sessions may grant an interim order under 438(1)

and for which cause a notice being not less than 7 days notice, together with the copy of order to be served to

the Public Prosecutor and the S.P of Police with a view to give the public prosecutor a reasonable opportunity

of being heard when application shall be finally heard.

In Central Bureau of Investigation v. Antony Vargese

245

, the Court held that the court, within who’s

Jurisdiction the person apprehends arrest, has power to grant the order under S.438.

By virtue of S.438 (1B)

246

, the presence of the applicant seeking anticipatory bail shall be obligatory at

the time of final hearing of the application and passing of final order by the Court, if on an application made to

it by the Pubic Prosecutor, the court considers such presence necessary in the interset of justice.

By virtue Section 438(2) of the Code following conditions may be imposed by the High Court or the

Court of Sessions as it thinks fit:

1. A condition compelling the bailed person to make himself available for police interrogation;

242

Amended by the Code of Criminal Procedure (Amendment) Act 2005, S.37.

243

Substituted by Section 38 of the Code of Criminal Procedure (Amendment) Act 2005.

244

Inserted by Section 38 of the Code of Criminal Procedure (Amendment) Act 2005.

245

2000(2) KLT600.

246

Inserted by Section 38 of the Code of Criminal Procedure (Amendment) Act 2005.

2. A condition that such bailed person shall not make any inducement, threat, or promise to support the facts

of the case;

3. The condition that he shall not leave India without the permission of the court;

4. Such other condition as the court thinks fit.

In Bharat Chaudhary & Anr. v. State of Bihar & Anr

247

, it was held that Court has power to grant

anticipatory bail even when cognisance is taken or charge sheet is filed.

In Gurabaksh Singh Sibba v. State of Punjab

248

, it was held that anticipatory bail is granted in

anticipation of arrest and is effective at the very moment of arrest.

In Gopinathan v. State of Kerala

249

, it was held that if the Sessions Court rejected an application for

anticipatory bail a fresh application can be made to the H. C on the same ground.

In State of Kerala v. Suraj

250

, it was observed that merely because one of the accused in a criminal case

was granted regular bail, the relief of anticipatory bail cannot be granted to another accused.

Cancellation of Bail

A bail granted to an accused can be cancelled and can be rearrested in the following circumstances:

1. If he commits the very same offence;

2. If he hampers the investigation;

3. If he absconds from India;

4. If he tampers the evidence intimidating the prosecution witness or removes traces or proof

of crime;

5. If he tries to influence the prosecution or the police;

6. If he jumped bail.

Section 229A was inserted in the Indian Penal Code by the Code of Criminal Procedure (Amendment)

Act 2005, according to which if an accused after release on bail fails to appear in the Court shall be punished

with imprisonment upto 1 year or with fine or both.

In Jain Pradhan v. State

251

, it was held that a bail previously granted may be cancelled if the accused

violates any conditions imposed by the court at the time of granting the bail

247

2004(1) Criminal Court Cases 322 (S.C.).

248

A.I.R. 1978 P&H. 1. F.B.

249

1986 KLT107.

250

2004(1) KLT 72.

251

1973 Cri.L.J, 577(S.C).

In The State through the Delhi Administration v. Sanjay Gandhi

252

, the Supreme Court held that S.C

may cancel the bail granted by granted the H.C in the interest of justice.

In Biman Chatterjee v. Sanchita Chatterjee & Anr

253

, it was held that breach of compromise is not a

ground for cancellation of bail. Further having granted bail, it is not open to court to cancel the same on a

ground alien to the grounds mentioned for cancellation of bail in the said provision of law.

In Mehboob Dawood Shaikh v. State of Maharashtra

254

, it was observed that mere assertion of an

alleged threat to witnesses should not be utilized as a ground for cancellation of bail.

Bond

Bond of Accused and Sureties

By virtue of Section 441 (1) before any person is released on bail or released on his own bond, a bond

for such sum of money as the police officer or court, as the case may be, thinks sufficient shall be executed by

such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person

shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise

directed by the police officer or court, as the case may be.

By virtue of Section 441 (2) where any condition is imposed for the release of any person on bail, the

bond shall also contain that condition.

By virtue of Section 441 (3) if the case so requires, the bond shall also bind the person released on bail

to appear when called upon at the High Court, Court of Session or other court to answer the charge.

In granting a bail in non-bailable offences, the following four conditions are looked into:

1. The nature and gravity of the charge;

2. The degree of punishment;

3. The chance of the accused absconding or tampering with the evidence;

4. Delay in the disposal of the case by such release of the accused. If the sureties are fraudulent or insufficient

in nature, then the accused must furnish insufficient or bonafide sureties again. Court is competent to alter the

conditions of bail bond

In Brijesh Singh & Anr. v. State

255

, it was held that Magistrate is competent to modify or relax

conditions of bail.

When the accused is arrested, the sureties are discharged. For a new bail, fresh sureties must be

produced. If the accused does not appear in person in the court, the sureties are responsible and any sum of

money deposited in the court is forfeited. The refusal of bail by a lower court is appealable to the Court of

Sessions or the High Court.

252

A.I.R 1978 S.C, 961.

253

2004(4) Criminal Court Cases 25 (S.C.).

254

2004 (2)KLT 812.

255

2002(2) Criminal Court Cases 210 (Karnataka).

By virtue of Section 441 (4) for the purpose of determining whether the sureties are fit or sufficient, the

court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the

sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a

Magistrate subordinate to the court, as to such sufficiency or fitness.

Declaration by Sureties

By virtue of Section 441A every person standing surety to an accused person for his release on bail,

shall make a declaration before the court as to the number of persons to whom he has stood surety including

the accused, giving therein all the relevant particulars.

Discharge from Custody

By virtue of Section 442(1) as soon as the bond has been executed, the person for whose appearance it

has been executed shall be released; and when he is in jail the court admitting him to bail shall issue an order

of release to the officer in charge of the jail, and such officer on receipt of the orders shall release him.

By virtue of Section 442 (2) nothing in this section, Section 436 or Section 437 shall be deemed to

require the release of any person liable to be detained for some matter other than that in respect of which the

bond was executed.

Power to Order Sufficient Bail when that First Taken is Insufficient

By virtue of Section 443 if, through mistake, fraud, or otherwise, insufficient sureties have been

accepted, or if they afterwards become insufficient, the court may issue a warrant of arrest directing that the

person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so

to do, may commit him to jail.

Discharge of Sureties

By virtue of Section 444 (1) all or any sureties for the attendance and appearance of a person released

on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the

applicants.

By virtue of Section 444 (2) on such application being made, the Magistrate shall issue his warrant of

arrest directing that the person so released be brought before him.

By virtue of Section 444 (3) on the appearance of such person pursuant to the warrant, or on his

voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to

the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may

commit him to jail.

Deposit Instead of Recognizance

By virtue of Section 445, when any person is required by any court or officer to execute a bond with or

without sureties, such court or officer may, except in the case of a bond for good behaviour, permit him to

deposit a sum of money or Government promissory notes to such amount as the court of officer may if in lieu

of executing such bond.

Procedure When Bond has been Forfeited

By virtue of Section 446 (1) where a bond under this Code is for appearance, or for production of

property, before a court and it is proved to the satisfaction of that court or of any court to which the case has

subsequently been transferred, that the bond has been forfeited, or where in respect of any other bond under

this Code, it is proved to the satisfaction of the court by which the bond was taken, or of any court to which

the case has subsequently been transferred, or of the court of any Magistrate of the first class, that the bond

has been forfeited, the court shall record the grounds of such proof, and may call upon any person bound by

such bond to pay the penalty thereof or to show cause why it should not be paid.

Explanation to the sub-section says that a condition in a bond for appearance, or for production of

property, before a court shall be construed as including a condition for appearance, or as the case may be, for

production of property before any court to which the case may subsequently be transferred.

By virtue of Section 446 (2) if sufficient cause is not shown and the penalty is not paid, the court may

proceed to recover the same, as if such penalty were a fine imposed by it under this Code

Proviso to the sub-section states that where such penalty is not paid and cannot be recovered in the

manner aforesaid, the person so bound as surety shall be liable, by order of the court ordering the recovery of

the penalty, to imprisonment in civil jail for a term which may extend to six months.

By virtue of Section 446 (3) the court may, at its discretion, remit any portion of the penalty mentioned

and enforce payment in part only.

By virtue of Section 446 (4) where a surety to a bond dies before the bond is forfeited, his estate shall

be discharged from all liability in respect of the bond.

By virtue of Section 446 (5) where any person who has furnished security under Section 106 or

Section 117 or Section 360 is convicted of an offence the commission of which constitutes a breach of the

conditions of his bond, or of a bond executed in lieu of his bond under Section 448, a certified copy of the

judgment of the court by which he was convicted of such offence maybe used as evidence in proceedings

under against his surety or sureties, and, if such certified copy is so used, the court shall presume that such

offence was committed by him unless the contrary is proved.

Cancellation of Bond and Bail Bond

By virtue of Section 446A (1) without prejudice to the provisions of section 446, where a bond under

this Code is for appearance of a person in a case and it is forfeited for breach of a condition-

By virtue of Section 446A (2)(a) the bond executed by such person as well as the bond, if any, executed

by one or more of his sureties in that case shall stand cancelled; and

By virtue of Section 446A (2)(b) thereafter no such person shall be released only on his own bond in

that case, if the Police Officer or the court, as the case may be, for appearance before whom the bond was

executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to

comply with its condition:

Provided that subject to any other provision of this Code he may be released in that case upon

the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the

Police Officer or the court, as the case may be thinks sufficient.

Procedure in case of Insolvency or Death of Surety or When a Bond is Forfeited

By virtue of Section 447 when any surety to a bond under this Code becomes insolvent or dies, or when

any bond is forfeited under the provisions of Section 446, the court by whose order such bond was taken, or a

Magistrate of the First Class may order the person from whom such security was demanded to furnish fresh

security in accordance with the directions of the original order, and if such security is not furnished, such court

or Magistrate may proceed as if there had been a default in complying with such original order.

Bond Required from Minor

By virtue of Section 448 when the person required by any court, or officer to execute a bond is a minor,

such court or officer may accept, in lieu thereof, a bond executed by a surety or sureties only.

Appeal from Orders under Section 446

By virtue of Section 449 all orders passed under Section 446 shall be appealable,-

(i) In the case of an order made by a Magistrate, to the Sessions Judge;

(ii) In the case of an order made by a Court of Sessions, to the court to which an appeal lies from an order

made by such court.

Power to Direct Levy of Amount Due on Certain Recognizances

By virtue of Section 450, the High Court or Court of Session may direct any Magistrate to levy the

amount due on a bond for appearance or attendance at such High Court or Court of Session.

Before a person is released on bail, a bond for certain sum of money should be executed by the accused.

When one or more sureties then his appearance release the accused on bail before the court or police officer

on specified dates must be guaranteed by the sureties, if the language of bail bond is not plain, then it must be

converted to court language.

Disposal of Property (S.451-457)

Chapter XXXIV of the Criminal Procedure Code deals with the disposal of property. The following are

the rules relating to disposal of property:

1. When any property is produced before any Criminal Court for the case, it will be entrusted to the proper

person under the orders of the court and if the property is of a perishable nature, it can be sold

256

. The

expression 'property' here means property of any kind including a document and the weapons used for

commission of the offence.

257

2. At the conclusion of the trial the property may be destroyed, confiscated or returned to the real claimant

258

The returning of the things is subject to the execution of bond and sureties.

259

3. When any person is convicted of any offence which includes, or amounts to, theft or receiving stolen

property, and is proved that any other person bought the stolen property from him without knowing, or having

reason to believe, that the same was stolen, and that any money has on arrest been taken out of the possession

of the convicted person, the court may on the application of the purchaser and on the restitution of the stolen

property to the person entitled to possession thereof, order that out of such money a sum not exceeding the

price paid by such purchaser be delivered to him.

260

256

Section 451.

257

Explanation to S.451.

258

Section 452 (1).

259

Section 452 (2).

260

Section 453.

4. An appeal shall lie against the order passed by the court under S.452, S.453

261

. This is an independent right

of appeal.

5. Certain items like libellous matter, obscene books, food, drink, drug or medicine connected with the offence

must be destroyed.

262

6. S.456 (1) of the Cr.P.C confers a power to restore possession of immovable property to the persons entitled.

When the accused is convicted for having taken possession of immovable property or show of force by using

criminal force or criminal intimidation, the court will pass an order for the restoration of the same. Such an

order may be passed only before the expiry of one month from the date of conviction.

263

If the trial court fails

to pass such an order the court of appeal may make such an order while disposing of appeal, reference or

revision.

264

The object of this Section is to prevent any person from gaining wrongful possession of the land

by his own unlawful and forceful act. In other words, the principle of civil law is that a person in peaceful

possession of land should be protected against dispossession. "No man is permitted to flour law and to rely

upon physical force to achieve his ends."

7. If no claimant appears within 6 months or the person who is dispossessed cannot establish his title, the

Magistrate may order that such property shall be at the disposal of the State Government

265

. If the thing is a

perishable article, it can be sold under S.459 of the Cr.P.C.

In R.K. Dalmia V State

266

, it was held that Section 452cannot be used when a case is in the investigation

stage.

In Nagpur District Central Co-operative Bank v. State of Maharashtra & Ors

267

, it was held that property

seized under S.102 can be ultimately to be disposed under Section 452 of Cr.P.C.

TOPIC 41

LIMITATION

(S.468)

Formerly in criminal law, there was no limitation. It means that a prosecution can be launched after

any length of time after the commission of the offence. The principle on which it is based is incorporated in

the maxim 'nullun tempt occurit regi" (lapse of time does not bar the right of the state). The Code has

prescribed a period of limitation in case of certain category of persons. Chapter 34 of Cr.P.C deals with

limitation in criminal cases.

According to S.468 (2), the period of limitation shall be-

1. 6 months if the offence is punishable with fine only;

2. one year if the offence is punishable with imprisonment for a term not exceeding 1year;

3. three years if the offence is punishable with imprisonment for a term exceeding one year but not

exceeding 3 years.

261

Section 454(1).

262

Section 455(2).

263

Proviso to Section 456(1).

264

Section 456(2).

265

Section 458(1).

266

1975 Cr. L.J.

267

2004(1) Criminal Court Cases 268 (Bombay).

Thus if the case is punishable with imprisonment for more than 3 years there is no limitation at all.

In G.D. Dyer v. The State

268

, it was observed that the object of the legislature in prescribing periods of

limitation for taking cognisance is to put pressure on the organs of the criminal prosecution to ensure the

detection and punishment of the crime quickly.

Commencement of Period of Limitation

Period of limitation shall commence:

1. On the date of the offence or

2. Where the commission of the offence was not known to the person aggrieved by the offence or to any

police officer, the first day on which such offence comes to the knowledge of such person or to any police

officer, whichever is earlier;

3. Where it is not known by whom the offence was committed, the first day on which identity of the

offender comes to the knowledge of aggrieved party or to investigating police officer, whichever is earlier.

Section 469 of the Code provides that in computation of the limitation period, the day from which such period

computed should be excluded.

In M/s.Zandu Pharmaceutical Works Ltd. v. Md.Sharaful Haque

269

, it was held that power of Court to

extend period of limitation can be exercised when the court is satisfied on the facts and circumstances of the

case that delay has been properly explained or that it is necessary to do so in the interest of justice.

Similarly in Amar Singh & Ors. v. State of Punjab

270

, it was held that condonation of delay after taking

cognisance of offence is not valid. Delay has to be condoned before taking cognisance of offence.

TOPIC 42

INHERENT POWERS OF THE HIGH COURT

(S.482)

No legislative enactment dealing with procedure can provide for all the cases and contingencies that

may possibly arise, and it is an established principle that courts must possess inherent powers apart from the

express provisions of law, which is quite essential for proper discharge of their duties. S.482 of the Code deals

with the inherent powers of the High Court.

271

Section 482 provides that nothing in the Code shall be deemed to limit or affect the inherent powers of

the High Court to make any rules regarding the procedure to be followed in the subordinate courts. To invoke

this Section the following conditions shall be satisfied. Such an order must be necessary;

1. to give effect to any order under this Code;

2. to prevent abuse of the process of any court;

3. to secure the ends of justice.

However Section 482 does not confer any new rights but merely safeguards all existing inherent powers

possessed by the High Court. Powers under S. 482 of the Code should be used sparingly and in the interest of

serving the ends of justice.

268

1978 Cri.L.J. 1180 Delhi.

269

2005(1) Criminal Court Cases 541 (S.C.).

270

2003(2) Criminal Court Cases 349 (P&H).

271

Jurisdiction of high court u/s. 482 of Cr.P.C. (January 1988}.

In Ram Narian v. Mool Chand

272

, it was held that in the first place the injustice should be of grave

character; secondly, the injustice which is noted must be of a clear and palpable character; and thirdly there

should exist no other provision of law by which relief could have been sought.

In Siddique v. Lathif

273

, it was held that the power under Section 482 of the Code has to be exercised

sparingly and not on mere assertions made by the parties. For invoking the inherent powers of the High Court,

the essential prerequisites are the following:

a. The power is not to be resorted to if there is a specific provision in the Code for the redressal of the

grievance of the aggrieved party;

b. That, it should be exercised very sparingly to prevent the abuse of the process of any court or otherwise to

secure the ends of justice;

c. That, it should not be exercised as against the expressed bar of law engrafted in any other provisions in the

Code;

d. That, the power can be exercised by the High Court to make such orders as may be necessary to give effect

to any order of the Code or to prevent abuse of the process of any court or otherwise to secure ends of justice.

Whether the complaint would not ultimately be established after trial, is not a matter to be taken note of by the

High Court under Section 482 of the Code.

Under sub-Section (2) of Section 397 no revision lies against interlocutory order, but Section 397 do not

bar the inherent jurisdiction of H.C.

In Ram Prakash v. State of H.P

274

, the HC under Section 482 in the exercise of its inherent powers can

revise interlocutory order if there is miscarriage of justice or illegal exercise of jurisdiction.

In Union of India v. Prakash P.Hinduja & Anr, it was held that cognisance taken by trial Court cannot

be set aside by High Court under Section 482 Cr.P.C

In Ramlal Yadav v. State of UP,

275

the power of the police to arrest a person under sec. 41, Cr P.C

cannot thus be interfered with by the High Court in exercise of its inherent powers.

In Kunjikannan and othes v. Assistant Sub Inspector of Police

276

, it was held: "In the absence of other

specific provisions the existing inherent power of the High Court is intended to be preserved and saved by the

provision in order to give effect to orders, prevent abuses and secure ends of justice for which the court exists.

The section is not intended to create any non- existing right. What the section lays down is only that no

provision of the Code shall be construed as intended to restrict or affect such rights by their presence or

absence. In case where there are other remedies available, the inherent power cannot be invoked".

In Aravindakshan v. State of Kerala

277

, it was held: "The inherent power under section 482 of the code is

discretionary and cannot be used in favour of a person who does not come with clean hands or with

bonafides".

272

1960 A.L.J.799.

273

1998(2) KLT 608.

274

1979 Cri.L.J. 750.

275

1989 Cri. L.J 1013F.B.

276

1985 KLT 484.

277

1985 KLT SN 66.p.41.

TOPIC 43

NOTABLE TERMS

I. Substituted Services

A court has the power to issue the summons to a person for his appearance before that court which

issues the summons on a specified date. It shall be in writing. A summons is different from a warrant. In a

warrant, an order is made to the police to arrest the person named. The police will then produce him before

the court.

A summons is made by delivering the duplicate to the persons summoned and the receipt must be

signed by him.

278

If the person summoned cannot be found in the house the summons may be served by

leaving one of the duplicates for him with some adult member of the family. This is known as extended

service.

279

When service cannot be effected in the above two ways, a duplicate of the summons shall be affixed to

the outer door or some other conspicuous part of the house or homestead in which the person summoned

resides. According to Section 65, such service is called substituted service.

II. Discharge and Acquittal

A criminal case ends either in the conviction of the accused or discharge of the accused or the acquittal

of the accused. The following are the points of distinction:

1. A discharge takes place where there is no prima facie case, made out against the accused and no charge is

framed against him. In the case of acquittal, a charge is framed and he is called upon to adduce his defence

evidence and if there is no evidence to prove his guilt, the court can acquit him.

2. A man who is discharged may again be charged for the same offence if other evidence subsequently

discovered. But a man who has been acquitted cannot be put on trial for the offence to which he has been

acquitted.

280

3. An order of a discharge is not a judgment but an order of acquittal is a judgment.

4. An acquittal is final (unless appealed by the state) where as an order of discharge need not be necessarily

final.

III. Police Diary

S. 172 of the Cr.P.C describes the content and formal set up of a police diary. It is the duty of every

officer in charge of the police station to keep a case diary recording the day-to-day proceedings in the

investigation of criminal cases. It must be maintained in the prescribed form. It must contain the stages of

investigation such as the time when the information reached him, the date of arrest, the places visited by him

and the date of closing the investigation, the name and addresses of the witnesses contacted by the police

officer during the investigation etc. The Magistrate has the power to call for the diary to check the method of

278

Section 62 (2).

279

Section 64.

280

S.300.

100

investigation by the police. This cannot be used as a piece of substantive evidence. The investigating officer

can however use the case diary to refresh his memory while giving evidence in the court as a witness.

IV. General Diary

In every police station, a book in the form prescribed by the State Government is to be maintained.

This book is called the General Diary. All information’s received in the police station about the commission

of an offence shall be reduced in to writing by the officer in charge of the police station or under his direction

in the General Duty.

This is different from a Police Diary or a case diary. A General Diary maintained in the Police Station

seldom reaches the court. However, the court may call for the production of the General Diary by the police if

it thinks it is necessary to do so for fair trial of the case pending before it. Superior police officers are required

to verify that the General Diary maintained properly in every police station under their control.

V. De Novo Trial

An appellate court before which an appeal is filed in a criminal case may order for a retrial of the case

by the accused. This is called a de novo trial. Under S.386 (a) of Cr.P.C the appellate court may order for a

retrial in an appeal from an order of acquittal. Under S.386 (b), in an appeal from a conviction reverse the

finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent

jurisdiction subordinate to such Appellate Court or committed for trial or alter the finding, maintaining the

sentence, or with or without altering the finding, alter the nature or the extent, or the nature and extend, of the

sentence, but not so as to enhance the same.

VI. Complaint

Complaint is defined in S.2 (d) of the Code. It is as follows “Complaint means any allegation made

orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person whether

known or unknown has committed an offence, but does not include a police report”. Explanation to S. 2(d)

provides that a report made by a police officer in a case, which discloses, after investigation the commission

of a non-cognisable offence shall be deemed to be a complaint and the police officer by whom such report is

made shall be deemed to be complainant.

The essentials of a complaint are:

a) The allegation must be made to a Magistrate;

b) The allegation must be made with a view to the Magistrate taking action under the Code;

c) The allegation must be that an offence has been committed. The complainant need not specifically mention

any offender or the Section of the statue, which makes the act or omission liable;

d) The allegation may be made orally or in writing.

The complaint need not necessarily be made by the persons injured but may be made by any person aware of

the offence. A Magistrate is competent to make a complaint as a common informer. A public prosecutor can

make a complaint in his private capacity.

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VII. Inquiry and Investigation

Inquiry has been defined in Section 2 (g) of the Code. It is as follows:

Inquiry means every inquiry other than a trial conducted under this Code by a Magistrate or court.

Investigation has been defined in Section 2(h), which is as follows: Investigation includes all the

proceedings under this Code for the collection of evidence conducted by a police officer or any person (other

than a Magistrate) who is authorised by a Magistrate in his behalf.

There are three stages of a criminal case; inquiry, investigation and trial. The first stage is investigation

which is reached when a police officer either by himself or under orders of a Magistrate investigates into a

case.

When the information of a cognisable offence is received or it is suspected, the appropriate police

officer has the authority to take up the investigation of the same. When the information relates to a non-

cognisable offence the police officer will not investigate it without the order of a competent Magistrate.

The steps on the part of the police officer constituting investigation are ascertainment of the facts and

circumstances of the case, discovery and arrest of the suspected offenders, collection of evidence, and

examination of various persons and formation of opinion as to whether there is a case to bring the accused

before the Magistrate before trial. If he finds that no offence has been committed he reports the facts to the

Magistrate who drops the proceedings and the case comes to an end. If he is of the opinion that an offence has

been committed, he takes the necessary steps for the trial of the accused by filing a charge sheet before the

Magistrate under S.173 of the Code.

Thus begins the second stage of the case, which is either inquiry or trial. It includes everything done by

a Magistrate. The Magistrate may deal with the case himself and either convict the accused or discharge or

acquit him. In cases of serious offences, the trial is before the Sessions Court, which may either discharge the

accused or convict or acquit him.

VIII. Distinction between Investigation and Inquiry

1. An investigation is made by a police officer or by some person authorised by a Magistrate but is never

made by a Magistrate or a court.

2. The object of investigation is to collect evidence for the prosecution of the case while the object of inquiry

is to determine the truth or falsity of certain facts with the view to taking further action thereon.

3. Investigation is the first stage of the case and usually precedes inquiry by a Magistrate.

RECENT AMENDMENTS

The Code of Criminal Procedure (Amendment) Act, 2005

281

came into force on 23.06.2006 [except Ss. 16,

25, 28(a), 28(b), 38, 42(a), 42(b), 42(f) (iii) and (iv) and 44(a)]. The Criminal Law (Amendment) Act, 2005

282

(

except S. 4 dealing with plea bargaining) came into force on 16. 04 2006 (16th April. 2006). S. 4

came into force on 5th July, 2006. The

Act was intended to amend the Indian Penal Code, the Code of Criminal

281

(25 of 2005).

282

(2 of 2006).

102

Procedure,

1973

and the Indian Evidence Act 1872. S. 2 deals with amendments in IPC, Ss. 3 to 8 deal with amendments in Cr.

P. C. and S. 9 deals with the IEA.

The Code of Criminal Procedure (Amendment) Act, 2005

283

Delegation of Powers

S. 2 of the Amendment Act inserted S. 20 (4A) in Cr P. C. The section provides that the State

Government may, by general or special order and subject to such control and directions as it may deem fit to

impose, delegate its powers u/S. 20 (4) to the District Magistrate.

Regular Cadre of Prosecuting Officers and Prosecuting Officer

S. 3 of the Amendment Act inserted an explanation after the S. 24 (6) proviso in Cr P. C. Explanation

shall be inserted and shall be deemed to have been inserted w. e. f. 18. 12 .1978 (18th day of December,

1978).

Explanation provides 2 definitions for the purposes of S. 24 of Cr P. C. They are as follows:

(a) Regular Cadre of Prosecuting Officers

Regular Cadre of Prosecuting Officers means a Cadre of Prosecuting Officers which includes therein

the post of a Public Prosecutor, by whatever name called, and which provides for promotion of Assistant

Public Prosecutors, by whatever name called, to that post;

(b) Prosecuting Officer

Prosecuting Officer means a person, by whatever name called, appointed to perform the functions of a

Public Prosecutor, an Additional Public Prosecutor or an Assistant Public Prosecutor under this Code.'.

Directorate of Prosecution

S. 4 of the Amendment Act inserted S. 25 A in Cr P. C. S. 25 A deals with directorate of prosecution.

Establishing a Directorate of Prosecution

S. 25A (1) provides that the State Government may establish a Directorate of Prosecution consisting of

a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.

Eligibility

283

No. 25 of 2005.

103

S. 25A (2) provides that a person shall be eligible to be appointed as a Director of Prosecution or a

Deputy Director of Prosecution, only if he has been in practice as an advocate for not less than ten years and

such appointment shall be made with the concurrence of the Chief Justice of the High Court.

Head of the Directorate of Prosecution

By virtue of S. 25A (3) the Head of the Directorate of Prosecution shall be the Director of Prosecution,

who shall function under the administrative control of the Head of the Home Department in the State.

Hierarchy

S. 25A (4) provides that every Deputy Director of Prosecution shall be subordinate to the Director of

Prosecution. As per S. 25A (5) every Public Prosecutor, Additional Public Prosecutor and Special Public

Prosecutor appointed by the State Government under sub-section (1), or as the case may be, S. 24 (8), to

conduct cases in the High Court shall be subordinate to the Director of Prosecution.

Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed by the

State Government u/S. 24 (3), or as the case may be, S. 24 (8) to conduct cases in District Courts and every

Assistant Public Prosecutor appointed u/S. 25 (1) shall be subordinate to the Deputy Director of

Prosecution.

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Powers and Functions

S. 25A (7) provides that the powers and functions of the Director of Prosecution and the Deputy

Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have been

appointed shall be such as the State Government may, by notification, specify.

Non applicability in certain cases

S. 25A (8) the provisions of S. 25A shall not apply to the Advocate General for the State while

performing the functions of a Public Prosecutor.

Pecuniary Jurisdiction

284

S. 25A (6).

104

S. 5 of the Amendment Act brought about changes in S. 29 of Cr P. C. This section prescribes the

amount of fine which can be imposed by a Judicial Magistrate of First Class and Second Class. The amount

has been increased from Rs. 5000/- (five thousand rupees) to Rs. 10000/- (ten thousand rupees).

Arrest of a Women

S. 6 of the Amendment Act inserted S. 46 (4) in Cr P. C. S. 46 (4) provides that save in exceptional

circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional

circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of

the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest

is to be made.".

Rights of an Arrested Person

S. 7 of the Amendment Act inserted S. 50A in Cr P. C. S. Accordingly an obligation is imposed on the

person making arrest to inform about the arrest, etc., to a nominated person.

Information Regarding Such Arrest

By virtue of S. 50 A (1) every police officer or other person making any arrest under this Code shall

forthwith give the information regarding such arrest and place where the arrested person is being held to any

of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the

purpose of giving such information. The police officer shall inform the arrested person of his rights u/S.

50 A (1) as soon as he is brought to the police station.

Entry as to who has been informed

S. 50 A (3) provides that an entry of the fact as to who has been informed of the arrest of such person

shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the

State Government.

Duty of the Magistrate

S. 50 A (4) imposes a mandatory duty on the Magistrate before whom such arrested person is produced,

to satisfy himself that the requirements of S. 50 A (2) and (3) have been complied with in respect of such

arrested person.

105

Medical Examination

S. 8 of the Amendment Act brought about changes in S.53 of Cr P. Accordingly in S. 53 of the principal

Act, for the Explanation, the following Explanation shall be substituted, namely:-

'Explanation.-In this section and in sections 53A and 54,-

(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual

offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific

techniques including DNA profiling and such other tests which the registered medical practioner thinks

necessary in a particular case;

(b) "registered medical practitioner" means a medical practitioner who possesses any medical qualification as

defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has

been entered in a State Medical Register.'.

Examination of Person Accused of Rape by Medical Practitioner

S. 9 of the Amendment Act inserted S. 53A in Cr P. C. S. 53A (1) provides that when a person is

arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable

grounds for believing that an examination of his person will afford evidence as to the commission of such

offence, it shall be lawful for a registered medical practioner employed in a hospital run by the Government or

by a local authority and in the absence of such a practitioner within the radius of 16 Kms. (sixteen kilometers)

from the place where the offence has been committed, by any other registered medical practitioner, acting at

the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in

his aid and under his direction, to make such an examination of the arrested person and to use such force as is

reasonably necessary for that purpose.

S. 53 A (2) provides that the registered medical practitioner conducting such examination shall, without

delay, examine such person and prepare a report of his examination giving the following particulars, namely:-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

106

(v) other material particulars in reasonable detail.

By virtue of S. 53 A (3) the report shall state precisely the reasons for each conclusion arrived at. The

exact time of commencement and completion of the examination shall also be noted in the report.

285

S. 53 A (5) provides that the registered medical practitioner shall, without delay, forward the report to

the investigating officer, who shall forward it to the Magistrate referred to in S. 173 as part of the documents

referred to in S. 173 (5) (a).

S. 10 of the Amendment Act provides that Section 54 of the principal Act shall be renumbered as sub-

section (1) and S. 54 (2) shall be inserted. S. 54 (2) provides that where an examination is made u/S. 54 (1), a

copy of the report of such examination shall be furnished by the registered medical practitioner to the arrested

person or the person nominated by such arrested person.

Medical Examination of Victim of Rape

S. 17 of the Amendment Act inserted S. 164 A in Cr P. C. S. 164 A (1) provides that where, during the

stage when an offence of committing rape or attempt to commit rape is under investigation, it is proposed to

get the person of the woman with whom rape is alleged or attempted to have been committed or attempted,

examined by a medical expert, such examination shall be conducted by a registered medical practitioner

employed in a hospital run by the Government or a local authority and in the absence of such a practitioner, by

any other registered medical practitioner, with the consent of such woman or of a person competent to give

such consent on her behalf and such woman shall be sent to such registered medical practitioner within

twenty-four hours from the time of receiving the information relating to the commission of such offence.

By virtue of S. 164 A (2) the registered medical practitioner, to whom such woman is sent, shall,

without delay, examine her person and prepare a report of his examination giving the following particulars,

namely:-

(i) the name and address of the woman and of the person by whom she was brought;

(ii) the age of the woman;

(iii) the description of material taken from the person of the woman for DNA profiling;

(iv) marks of injury, if any, on the person of the woman;

285

S. 53 A (4).

107

(v) general mental condition of the woman; and

(vi) other material particulars in reasonable detail.

S. 164 A (3) provides that the report shall state precisely the reasons for each conclusion arrived at. S.

164 A (4) states that the report shall specifically record that the consent of the woman or of the person

competent to give such consent on her behalf to such examination had been obtained.

By virtue of S. 164 A (5) the exact time of commencement and completion of the examination shall also

be noted in the report.

S. 164 A (6) provides that the registered medical practitioner shall, without delay forward the report to

the investigating officer who shall forward it to the Magistrate referred to in S. 173 as part of the documents

referred to in S. 173 (5) (a). Nothing in S. 164 A shall be construed as rendering lawful any examination

without the consent of the woman or of any person competent to give such consent on her behalf.

286

For the purposes of S. 164 A, "examination" and "registered medical practitioner" shall have the same

meanings as in section 53.

287

Custodial violence

S. 18 of the Amendment Act brought about changes in S. 176 of Cr P. C. Accordingly in S. 176 (1) of

the principal Act the words "where any person dies while in the custody of the police or" shall be omitted and

Ss. 176 (1A) and 176 (5) has been inserted.

S. 176 (1A) provides that where:

(a) any person dies or disappears, or

(b) rape is alleged to have been committed on any woman,

while such person or woman is in the custody of the police or in any other custody authorised by the

Magistrate or the Court, under this Code, in addition to the inquiry or investigation held by the police, an

inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within

whose local jurisdiction the offence has been committed.

286

S. 164 A (7).

287

Explanation to S. 164 A.

108

S. 176 (5) provides that the Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate

or police officer holding an inquiry or investigation, as the case may be, u/S. (1A) shall, within 24 hours

(twenty-four hours) of the death of a person, forward the body with a view to its being examined to the nearest

Civil Surgeon or other qualified medical person appointed in this behalf by the State Government, unless it is

not possible to do so for reasons to be recorded in writing.

Identification of person arrested

S. 11 of the Amendment Act inserted S. 54 A in Cr P. C. S. 54A provides that where a person is arrested

on a charge of committing an offence and his identification by any other person or persons is considered

necessary for the purpose of investigation of such offence, the Court, having jurisdiction may, on the request

of the officer in charge of a police station, direct the person so arrested to subject himself to identification by

any person or persons in such manner as the Court may deem fit.

Proclaimed Offender

S. 12 of the Amendment Act inserted S. 82 (4) and (5) in Cr P. C. S. 82 (4) provides that where a

proclamation published u/S. 82 (1) is in respect of a person accused of an offence punishable under section

302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian

Penal Code, and such person fails to appear at the specified place and time required by the proclamation, the

Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a

declaration to that effect. S. 82 (5) provides that the provisions of S.82 (2) and (3) shall apply to a declaration

made by the Court u/S. 82 (4) as they apply to the proclamation published u/S. 82 (1).

By virtue of S. 13 (a) of the Amendment Act in S. 102 (3), after the words "transported to the Court",

the words "or where there is difficulty in securing proper accommodation for the custody of such property, or

where the continued retention of the property in police custody may not be considered necessary for the

purpose of investigation" shall be inserted.

S. 13 (b) provides that after S. 102 (3), the following proviso shall be added at the end, which states that

where the property seized u/S. 102 (1) is subject to speedy and natural decay and if the person entitled to the

possession of such property is unknown or absent and the value of such property is less than Rs. 500/- (five

hundred rupees), it may forthwith be sold by auction under the orders of the Superintendent of Police and the

provisions of Ss. 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale.

109

S. 14 of the Amendment Act brought about changes in S. 110 of Cr P. C. Accordingly in section 110 of

the principal Act, in clause (f), in sub-clause (i),-

(i) in item (g), the word "or" shall be omitted;

(ii) after item (g), the following item shall be inserted,

(h) the Foreigners Act, 1946 (31 of 1946); or.

Bond

S. 15 of the Amendment Act brought about changes in S. 122 of Cr P. C. In S. 122 (1) (b), for the

words "bond without sureties", the words "bond, with or without sureties," shall be substituted.

Urgent cases of nuisance or apprehended danger

S. 16 of the Amendment Act inserted S. 144A in Cr P. C. S. 144A empowers the prohibiting of carrying

arms in procession or mass drill or mass training with arms. The word "arms" shall have the meaning assigned

to it in S. 153AA of the Indian Penal Code.

288

S. 144 (1) provides that the District Magistrate may, whenever he considers it necessary so to do for the

preservation of public peace or public safety or for the maintenance of public order, by public notice or by

order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or

the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place.

By virtue of S. 144 A (2) a public notice issued or an order made u/S. 144 A may be directed to a particular

person or to persons belonging to any community, party or organisation.

S. 144 A (3) provides that no public notice issued or an order made under this section shall remain in

force for more than 3 months (three months) from the date on which it is issued or made. By virtue of S. 144

A (4) the State Government may, if it considers necessary so to do for the preservation of public peace or

public safety or for the maintenance of public order, by notification, direct that a public notice issued or order

made by the District Magistrate under this section shall remain in force for such further period not exceeding 6

months (six months) from the date on which such public notice or order was issued or made by the District

Magistrate would have, but for such direction, expired, as it may specify in the said notification.

288

Explanation to S. 144 A.

110

S. 144 A (5) provides that the State Government may, subject to such control and directions as it may

deem fit to impose, by general or special order, delegate its powers u/S. S. 144 A (4) to the District

Magistrate.

S. 19 of the Amendment Act brought about changes in S. 202 of Cr P. C. Accordingly in section 202 of

the principal Act, in sub-section (1), after the words "may, if he thinks fit,", the following shall be inserted,

namely:-

"and shall, in a case where the accused is residing at a place beyond the area in which he exercises his

jurisdiction,".

S. 20 of the Amendment Act brought about changes in S. 206 of Cr P. C. In S. 206 (1) of the principal

Act, in the opening paragraph, after the words and figures "under section 260", the words and figures "or

section 261" shall be inserted. In the proviso, for the words "one hundred rupees" (Rs. 100/-), the words "one

thousand rupees" (Rs. 1000/-) shall be substituted.

S. 21 of the Amendment Act brought about changes in S. 223 of Cr P. C. Accordingly in S. 223 of the

principal Act, in the proviso,-

(a) for the word "Magistrate", the words "Magistrate or Court of Session" shall be substitued;

(b) for the words "if he is satisfied", the words "if he or it is satisfied" shall be substituted.

S. 22 of the Amendment Act brought about changes in S. 228 of Cr P. C. Accordingly in S. 228 (1) (a)

of the principal Act, for the words ", and thereupon the Chief Judicial Magistrate", the words "or any other

Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or,

as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such

Magistrate" shall be substituted.

S. 23 of the Amendment Act brought about changes in S. 260 of Cr P. C. Accordingly in S. 260 (1) of

the principal Act:

(a) for the words "two hundred rupees. Rs. 200/-, wherever they occur, the words "two thousand rupees" Rs.

2000/- shall be substituted;

111

(b) in clause (vi), for the words "criminal intimidation", the words "criminal intimidation punishable with

imprisonment for a term which may extend to two years, or with fine, or with both" shall be substituted.

Identification report of Magistrate

S. 24 of the Amendment Act inserted S. 291 A in Cr P. C. S. 291A (1) provides that any document

purporting to be a report of identification under the hand of an Executive Magistrate in respect of a person or

property may be used as evidence in any inquiry, trial or other proceeding under this Code, although such

Magistrate is not called as a witness.

Where such report contains a statement of any suspect or witness to which the provisions of S. 21, S.

32, S. 33, S. 155 or S. 157, as the case may be, of the Indian Evidence Act, 1872, apply, such statement shall

not be used under this sub-section except in accordance with the provisions of those sections.

289

By virtue of S. 291 A (2) the Court may, if it thinks fit, and shall, on the application of the prosecution

or of the accused, summon and examine such Magistrate as to the subject matter of the said report.

S. 25 of the Amendment Act brought about changes in S. 292 of Cr P. C. Accordingly in S. 292 of the

principal Act, in S. 292 (1), after the words "the Mint", the words "or of the Currency Note Press or of the

Bank Note Press or of the Security Printing Press" shall be inserted

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and in S. 292 (3), for the words "the

Master of the Mint, or the India Security Press", the words "the General Manager of the Mint or of the

Currency Note Press or of the Bank Note Press or of the Security Printing Press or of the India Security Press"

shall be substituted.

291

S. 26 of the Amendment Act brought about changes in S. 293 of Cr P. C. Accordingly in S. 293 (4) of

the principal Act:

(a) for clause (b), the following clause shall be substituted, namely:-

"(b) the Chief Controller of Explosives;";

(b) after clause (f), the following clause shall be added, namely:-

289

Proviso to S. 291 A (1).

290

S. 25 (a).

291

S. 25 (b).

112

"(g) any other Government scientific expert specified, by notification, by the Central Government for this

purpose.".

Power of Magistrate to order person to give specimen signatures or handwriting

S. 27 of the Amendment Act inserted S. 311 A in Cr P. C. S. 311A empowers the Magistrate to order

person to give specimen signatures or handwriting. Accordingly if a Magistrate of the first class is satisfied

that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person,

including an accused person, to give specimen signatures or handwriting, he may make an order to that effect

and in that case the person to whom the order relates shall be produced or shall attend at the time and place

specified in such order and shall give his specimen signatures or handwriting.

No order shall be made under this section unless the person has at some time been arrested in

connection with such investigation or proceeding.

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Amendment of section 320.

S. 28 of the Amendment Act brought about changes in S. 320 of Cr P. C. Accordingly in S. 320 of the

principal Act, in the Table u/S. 320 (2):

(a) the words "Voluntarily causing hurt by dangerous weapons or means" in column 1 and the entries relating

thereto in columns 2 and 3 shall be omitted;

(b) in column 3, for the word "Ditto", against the entry relating to section 325, the words "The person to

whom the hurt is caused" shall be substituted;

rupees" shall be substituted.

Amendment of section 356

S. 29 of the Amendment Act has inserted the following in S. 356 of Cr P. C. Accordingly in section 356

(1) of the principal Act, after the words, figures and letter "or section 489D", the words, figures and brackets

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Proviso to S. 311 A.

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"or section 506 (in so far as it relates to criminal intimidation punishable with imprisonment for a term which

may extend to 7 years (seven years) or with fine or with both)" shall be inserted

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and after the word and

figures "Chapter XII", the words and figures "or Chapter XVI" shall be inserted.

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Amendment of section 358.

S. 30 of the Amendment Act brought about changes in S. 358 of Cr P. C. Accordingly in S. 358 (1) and

(2) of the principal Act, for the words "one hundred rupees" (Rs. 100), the words "one thousand rupees" (Rs.

1000) shall be substituted.

Amendment of section 377.

S. 31 of the Amendment Act brought about changes in S. 377 of Cr P. C. According in S. 377 of the

principal Act:

(a) in sub-sections (1) and (2), for the words "an appeal to the High Court against the sentence on the ground

of its inadequacy", the following shall be substituted, namely:-

"an appeal against the sentence on the ground of its inadequacy-

(a) to the Court of Session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court";

(b) in sub-section (3), for the words "the High Court", the words "the Court of Session or, as the case may be,

the High Court" shall be substituted.

Amendment of section 378.

S. 32 of the Amendment Act brought about changes in S. 378 of Cr P. C. Accordingly in S. 378 of the

principal Act:

(i) for sub-section (1), the following sub-section shall be substituted, namely:-

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S. 29 (a).

294

S. 29 (b).

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"(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),-

(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of

Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;

(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court

from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an

order under clause (a)] or an order of acquittal passed by the Court of Session in revision.";

(ii) in sub-section (2), for the portion beginning with the words "the Central Government may" and ending

with the words "the order of acquittal", the following shall be substituted, namely:-

"the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to

present an appeal-

(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and

non-bailable offence;

(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High

Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision";

(iii) in sub-section (3), for the words "No appeal", the words "No appeal to the High Court" shall be

substituted.

S. 33 of the Amendment Act added 2 provisos to S. 389 in Cr P. C. Proviso I states that the Appellate

Court shall, before releasing on bail or on his own bond a convicted person who is convicted of an offence

punishable with death or imprisonment for life or imprisonment for a term of not less than ten years, shall give

opportunity to the Public Prosecutor for showing cause in writing against such release. Further proviso II

states that in cases where a convicted person is released on bail it shall be open to the Public Prosecutor to file

an application for the cancellation of the bail.

S. 34 of the Amendment Act has added a proviso to S. 428 of Cr P. C. Proviso states that in cases

referred to in section 433A, such period of detention shall be set off against the period of fourteen years

referred to in that section.

Bail

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Ss. 35, 36, 37 and 38 of the Amendment Act deals with bail provisions. S. 35 of the Amendment Act

brought about changes in S. 436 of Cr P. C. Accordingly in S. 436 (1) of the principal Act:

In the first proviso, for the words "may, instead of taking bail", the words "may, and shall, if such

person is indigent and is unable to furnish surety, instead of taking bail" shall be substituted.

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S. 35 (b) has inserted an Explanation after the first proviso which provides that where a person is unable

to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to

presume that he is an indigent person for the purposes of this proviso.".

S. 36 of the Amendment Act inserted S. 436 A in Cr P. C. S. 436A provides for the maximum period

for which an undertrial prisoner can be detained. According to this section where a person has, during the

period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for

which the punishment of death has been specified as one of the punishments under that law) undergone

detention for a period extending up to one-half of the maximum period of imprisonment specified for that

offence under that law, he shall be released by the Court on his personal bond with or without sureties:

The Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order

the continued detention of such person for a period longer than one-half of the said period or release him on

bail instead of the personal bond with or without sureties.

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No such person shall in any case be detained during the period of investigation, inquiry or trial for more

than the maximum period of imprisonment provided for the said offence under that law.

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In computing the period of detention u/S. 436 A for granting bail, the period of detention passed due to

delay in proceeding caused by the accused shall be excluded.

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S. 37 of the Amendment Act brought about changes in S. 437 of Cr P. C. Accordingly S. 437 (1) (ii),

for the words "a non-bailable and cognizable offence", the words "a cognizable offence punishable with

imprisonment for 3 years (three years) or more but not less than 7 years (seven years)" shall be substituted.

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295

S. 35 (a).

296

Proviso I to S. 436 A.

297

Proviso II to S. 436 A.

298

Explanation to S. 436 A.

299

S. 37 (i) (a) of the Amendment Act.

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S. 37 (i) (b) of the Amendment Act inserted proviso IV to S. 437 (1) which states that no person shall, if

the offence alleged to have been committed by him is punishable with death, imprisonment for life, or

imprisonment for 7 years (seven years) or more, be released on bail by the Court under this sub-section

without giving an opportunity of hearing to the Public Prosecutor.

According to S. 37 (ii) of the Amendment Act in S. 437 (3), for the portion beginning with the words

"the Court may impose" and ending with the words "the interests of justice", the following shall be

substituted, namely:-

"the Court shall impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of

the commission of which he is suspected, and

acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any

police officer or tamper with the evidence,

and may also impose, in the interests of justice, such other conditions as it considers necessary".

Anticipatory Bail

S. 38 of the Amendment Act brought about changes in S. 438 of Cr P. C. In accordance with the

amendment for the provisions of S. 438 (1) the following sub-sections shall be substituted, namely:-

Where any person has reason to believe that he may be arrested on accusation of having committed a

non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section

that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration,

inter alia, the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone

imprisonment on conviction by a Court in respect of any cognizable offence;

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(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him

so arrested,

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Where the High Court or, as the case may be, the Court of Session, has not passed any interim order

under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer

in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended

in such application.

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S. 438 (1A) provides that where the Court grants an interim order u/S. 438 (1), it shall forthwith cause a

notice being not less than 7 days (seven days) notice, together with a copy of such order to be served on the

Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable

opportunity of being heard when the application shall be finally heard by the Court.

S. 438 (1B) provides that the presence of the applicant seeking anticipatory bail shall be obligatory at

the time of final hearing of the application and passing of final order by the Court, if on an application made to

it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.".

Declaration by sureties

S. 39 of the Amendment Act inserted S. 441A in Cr P. C. S. 441 A states that every person standing

surety to an accused person for his release on bail, shall make a declaration before the Court as to the number

of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.

Amendment of section 446.

S. 40 of the Amendment Act brought about changes in S. of Cr P. C. Accordingly in section 446 (3) of

the principal Act, for the words "at its discretion", the words "after recording its reasons for doing so" shall be

substituted.

Amendment of section 459

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Proviso to S. 438 (1).

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S. 41 of the Amendment Act brought about changes in S. 459 of Cr P. C. In section 459 of the principal

Act, for the words less than Rs. 10 (ten rupees), the words less than Rs. 500 ( five hundred rupees) shall be

substituted.

Plea Bargaining

A new chapter, that is chapter XXIA on ‘Plea Bargaining’, has been introduced in the Criminal

Procedure Code 1973.

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It was introduced through the Criminal Law (Amendment) Act, 2005 Section 4. The

Indian concept of Plea Bargaining is inspired form the Doctrine of Nolo Contendere.

Definition

‘Plea Bargaining’ can be defined as pre-trial negotiations between the accused and the prosecution

during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution. The

Wikipedia Encyclopedia defines it as to make an agreement in which the defendants pleads guilty to a lesser

charge and the prosecutors in return drops more serious charges. ‘Plea Bargaining’ can be said to be a contract

between the prosecution and the defendant or accused and both the parties are bound by this contract.

Doctrine of Nolo Contendere

The Plea of Nolo Contendere is a formal declaration that the accused will not contend. The Plea of Nolo

Contendere is also called the Plea of Nolvult or Nolle Contendere. Nolo Contendere is a Latin term. It means

“I do not wish to contend”. The Doctrine may be explained as a willingness to accept declaration of guilt and

bargain for lesser punishment rather to contend or go with a trial. It is expressed as an implied confession, a

quasi-confession of guilt, a plea of guilt, substantially though not technically a conditional plea of guilt, a

substitute for plea of guilty.

Types of ‘Plea Bargaining’

‘Plea Bargaining’ can be of two types.

1. Charge bargain

Charge bargain happens when the prosecution allows a defendant to plead guilty to a lesser charge or to

only some of the charges framed against him. Prosecution generally has vast discretion in framing charges and

therefore they have the option to charge the defendant with the highest charges that are applicable. ‘Charge

Bargain’ gives the accused an opportunity to negotiate with the prosecution and reduce the number of charges

that may have framed against him.

2. Sentence bargain

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265 J provides that the provisions of Chapter 21 A shall have effect notwithstanding anything inconsistent therewith

contained in any other provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning

of any provision of Chapter 21A.

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Sentence bargain happens when an accused or defendant is told in advance what his sentence will be if

he pleads guilty. A sentence bargain may allow the prosecutor to obtain a conviction in the most serious

charge, while assuring the defendant of an acceptable sentence.

Object of ‘Plea Bargaining’

Many countries including United States, Scotland, and other European nations has recognized the plea

of Nolo Contendere in the administration of criminal justice. The very object of the doctrine are:

1. The substantial reduction in workload on the criminal justice system.

2. To reduce the risk of undesirable orders for the either side.

History:

The concept of ‘Plea Bargaining’ found favour in the American Judiciary in the 19th century itself. In

the year 1969, James Earl Ray pleaded guilty to assassinating Martin Luthar King, Jr. to avoid execution

sentence. He finally got an imprisonment of 99 years.

More than 90 percent of the criminal cases in America are never tried. The majorities of the individuals

who are accused of a crime give up their constitutional rights and plead guilty.

In a landmark judgment Bordenkircher v. Hayes, the US Supreme Court held that the constitutional

rationale for plea bargaining is that no element of punishment or retaliation (revenge) so long as the accused is

free to accept or reject the prosecutions offer. The Apex Court however upheld the life imprisonment of the

accused because he rejected the ‘Plea Guilty’ offer of 5 years imprisonment. The Supreme Court in the same

case, however in a different context observed that, it is always for the interest of the party under duress to

choose the lesser of the two evils. The courts have employed similar reasoning in tort disputes between private

parties also.

In countries such as England and Wales, Victoria, Australia, ‘Plea Bargaining’ is allowed only to the

extent that the prosecutors and defense can agree that the defendant will plead to some charges and the

prosecutor shall drop the remainder. The European countries are also slowly legitimizing the concept of plea

bargaining, though the Scandinavian countries largely maintain prohibition against the practice.

In the past France did not follow the concept of guilty plea and plea bargaining, Now it follows this

concept only for proposed sentences less than one year in jail. Very strong cases for the prosecution are tried

in court. In countries such as the United States, even such cases can also be settled by plea bargain.

Plea Bargaining in India

Lack of speedy and economical justice under the Indian criminal justice system made by the excessive

arrears of cases pending and very heavy expenditure in its disposal resulted in considering the Doctrine of

Nolo Contendere. The very low conviction rate in criminal cases also was a factor in such a consideration.

To reduce the delay in disposing criminal cases, the 154th Report of the Law Commission first

recommended the introduction of ‘plea bargaining’ as an alternative method to deal with huge arrears of

criminal cases.

This recommendation of the Law Committee finally found a support in Malimath Committee Report.

The Committee, headed by the former Chief Justice of the Karnataka and Kerala High Courts, Justice

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V.S.Malimath was formed to come up with some suggestions to tackle the ever-growing number of criminal

cases. In its report, the Malimath Committee recommended that a system of plea bargaining be introduced in

the Indian Criminal Justice System to facilitate the earlier disposal of criminal cases and to reduce the burden

of the courts. To strengthen its case, the Malimath Committee also pointed out the success of plea bargaining

system in USA. Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the

parliament. Chapter XXIA on ‘Plea Bargaining’, has been introduced in the Criminal Procedure Code through

the Criminal Law (Amendment) Act, 2005. The Government of India accepted the Doctrine of Nolo

Contendere or Plea Bargaining, on the Recommendations of the Law commission. This doctrine has been

considered in a modified manner according to social and economical condition prevailing in our country.

Appropriate amendment was incorporated in the Criminal Procedure Code 1973. New Chapter XXI A of Cr.

P. C. added 12 sections (265 A to 265 L). The chapter came into force with effect from 5th July, 2006. The

new concept of Plea Bargaining will be fruitful to resolve pending criminal cases and under trial in jails for

years.

In India the concept was not at all approved by the Courts. In State of Uttar Pradesh v. Chandrika

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The Apex Court held that it is settled law that on the basis of plea bargaining court cannot dispose of the

criminal cases. The court has to decide it on merits. If the accused confesses its guilt, appropriate sentence is

required to be implemented. The court further held in the same case that, Mere acceptance or admission of the

guilt should not be a ground for reduction of sentence. Nor can the accused bargain with the court that as he is

pleading guilty the sentence be reduced.

Section 265-A to 265-L have added in the Code of Criminal Procedure, 2005, Section 4 so as to provide

for raising the plea bargaining in certain types of criminal cases. While commenting on this aspect, the

division bench of the Gujarat High Court observed in State of Gujarat v. Natwar Harchanji Thakor

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, that,

the very object of law is to provide easy, cheap and expeditious justice by resolution of disputes, including the

trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the

administration of law and justice, fundamental reforms are inevitable. There should not be anything static. It

can thus be said that it is really a measure and redressal and it shall add a new dimension in the realm of

judicial reforms.

Salient Features of Plea Bargaing:

1. In the Indian context unlike the concept of out of court settlement in the U.S, for plea bargaining to take

effect the consent of the victim, judge and prosecutor, all three, is required.

2. Chapter 21 A of Cr. P. C. applies to:

(i) Reports forwarded by officer in chare of Police Station under section 173 of the

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2000 Cr.L.J. 384(386).

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(2005) Cr. L.J. 2957.

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Cr.P.C. other than offence for which punishment of

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(a) Death or Imprisonment for life or

(b) imprisonment exceeding 7 years

(ii)Magistrate has taken cognizance on complaint and after examining complainant and witnesses under

section 200 has issued process under section 204.

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(iii) The accused can avail the benefit for the first crime committed by him. The accused cannot avail the

benefit for the subsequent crimes committed by him.

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3. Chapter 21 A of Cr. P. C. does not apply to cases where

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(i) The offence committed is a socio-economic offence

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i.e. where the offence affects social economic

condition of the country; or

(ii) The offence is committed against a woman; or

(iii) The offences committed are heinous crimes like that of Murder, rape etc…;or

(iv) The offence is committed against a child below the age of 14 years;or

(v) The accused is a juvenile or child as defined in section 2 (k) of the Juvenile Justice (Care and Protection of

children) Act, 2000 (56 of 2000).

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4. The benefits of plea bargaining is not available to habitual offenders.

Statements of Accused in Plea Bargain:

S. 265 K provides that notwithstanding anything contained in any law

for the time being in force, the statements or facts stated by an accused in an application for plea

bargaining filed u/S. 265 B shall not be used for any other purpose except for the purpose of Chapter

21A.

Procedure

1. Application:

By virtue of

S. 265 B (1) a

person accused of an offence may file application for plea bargaining

in the Court in which such offence is pending for trial.

2. Nature of Application:

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S. 265 A (1) (a).

305

S. 265 A (1) (b).

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S. 265 B (2).

307

S. 265 A (1).

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As per S. 265 A

(2), for the purposes of S. 265 A (

1),

the Central Government shall, by notification, determine the offences

under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

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S. 265 L.

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S 265 B (2) provides that t

he application for plea bargaining shall contain a brief description of the

case relating to which the application is filed including the offence to which the case relates and shall

be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred,

after understanding the nature and extent of punishment provided under the law for the offence, the

plea bargaining in his case and that he has not previously been convicted by a Court in a case in which

he had been charged with the same offence.

3. Notice

After receiving the application u/S. 265 A (1)

the Court shall issue notice to the Public

Prosecutor

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or the complainant of the case, as the case may be, and to the accused to appear on the

date fixed for the case.

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4. In camera Proceedings:

Court shall examine accused in camera

312

and if satisfied that it is voluntary provide time to public

prosecutor or complaint and accused for a mutually satisfactory dispositions

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5. Mutually Satisfactory Dispositions:

Mutually satisfactory dispositions may include compensation and other expenses. But if

the Court

finds that the application has been filed involuntarily by the accused or he has previously been

convicted by a Court in a case in which he had been charged with the same offence,

the Court will

proceed

further in accordance with the provisions of this Code from the stage such application has been

filed u/S. 265 A (1).

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Cases Instituted on a Police Report

In cases instituted on a police report, the Court shall issue notice to public prosecutor, police officer

who investigated the case, accused and victim to participate in the meeting to work out a mutually satisfactory

disposition of the case.

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Conditions to be fulfilled

(i) Such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure

that the entire process is completed voluntarily by the parties participating in the meeting.

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310

The expression "Public Prosecutor" has the meaning assigned to it u/S. 2 (u) and includes an Assistant Public Prosecutor

appointed u/S. 25.

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311

S. 265 A (3).

312

S.265 B (4).

313

S.265 B (4)(a).

314

S. 265 A (4) (b).

315

S.265 C (a).

316

Proviso I to S. 265 C (a).

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(ii) The accused, if he so desires, may participate in such meeting with his pleader, if any, engaged in the

case.

317

Cases Instituted other than on a Police Report

In cases instituted other than on a police report, the Court shall issue notice to the accused and victim to

participate in the meeting to work out a mutually satisfactory disposition of the case.

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Conditions to be fulfilled

(i) Court’s duty

It shall be the duty of the Court to ensure, throughout such process of working out a satisfactory

disposition of the case, that it is completed voluntarily by the parties participating in the meeting.

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(ii) Participation of victim or accused

If the victim of the case or the accused,

the case may be, so desires, he may participate in such

meeting with his pleader engaged in the case.

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Report of Mutually Satisfactory Disposition

265 D, deals with r

eport of mutually satisfactory disposition.

Where in meeting under section 265C, a

satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition

which shall be signed by the presiding officer of the Court and all other persons who participated in the

meeting.

In case no such disposition has been worked out, the Court shall record such observation and proceed

further in accordance with the provisions of this Code from the stage the application u/S. 265 B (1) has been

filed in such case.

6. Disposal of the Case

According to S. 265E w

here a satisfactory disposition or the case has been worked out u/S. 265D, the

Court shall dispose of the case. The manner for such disposal has also been prescribed in this section.

Awarding Compensation and Hearing of the Parties

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317

Proviso II to S. 265 C (a).

318

S.265 C (b).

319

Proviso I to S. 265 C (b).

320

Proviso II to S. 265 C (b).

321

S.265 E (a).

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When the mutually satisfactory disposition is worked out the Court shall:

(i) Award compensation to the victim and,

(ii) Hear the parties on the quantum of punishment, releasing the accused on probation of good conduct or

after admonition under section 360, or deal under Probation of Offenders Act, 1958 (20 of 1958)

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, or any

other law for the time being in force.

Releasing of the accused

After hearing the parties u/S. 265 E (a), if the Court is of the view that S. 360 or the provisions of the

Probation of Offenders Act, 1958, or any other law for the time being in force are attracted in the case of the

accused, it may release the accused on probation or provide the benefit of any such law, as the case may be.

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Punishment

Plea Bargaining would enable the accused to plead guilty to his offence and negotiate for a lesser

punishment in return. The Court may release the accused on probation if the law permits it for the offence

charged. If minimum punishment has been provided for the offence, the Court may sentence the accused half

of such minimum punishment.

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If not, one-fourth punishment provided for the offence.

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Power of the Court in Plea Bargaining

Court shall have, for the purposes of discharging its functions under Chapter 21 A, all the

powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in

such Court under this Code.

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8. Set off against the sentence of imprisonment.

By virtue of S.

265 I the p

eriod

of detention undergone by the

accused to be set off against the sentence of imprisonment. The

provisions of S. 428 shall apply, for setting off the period of detention undergone by the accused against

the sentence of imprisonment imposed under Chapter 21 A, in the same manner as they apply in respect

of the imprisonment under other provisions of this Code.

8. Delivering of Judgment:

The Court shall deliver its judgment in terms of section 265 E in open court and sign it.

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322

20 of 1958.

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S. 265 E (b).

324

S.265 E (c).

325

S.265 E (d).

326

S. 265 H.

327

S.265 F.

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9. Appeal:

By virtue of S. 265 G t

he judgment delivered by the Court u/S. 265G shall be final and no appeal

(except the special leave petition under article

136

and writ petition under articles 226 and 227 of the

Constitution) shall lie in any Court against such judgment.

Advantages of ‘Plea Bargaining’

1. From the accused’s point of view

(a) a lighter sentence is imposed than what might result from taking the case to trial and losing i.e. it gives an

accused the incentive to plead guilty in exchange for a lesser sentence.

(b) save a huge amount of money which they might otherwise spend on advocates.

other similar nature of offences.

(d) It is consuming a very short span of time compared to that of ordinary proceedings.

2. It will reduce the unbreakable backlog of cases and minimize trial period in the cases.

3. It also reduces the caseloads of the prosecutors and judges.

4. It will result in expedient disposal of several pending criminal cases.

Major drawbacks of the concept of plea bargaining as is recognized in India are as under

1. Involving the police in plea bargaining process may invite coercion.

2. By involving the court in plea bargaining process, the court’s impartiality may be impugned.

3. Justice is most likely to be a casualty if the accused start pleading guilty in exchange for shorter sentences

because of their long stay as under-trials in the prison, despite not having committing the alleged offences.

4. Involving the victim in plea bargaining process may invite corruption.

The plea bargaining by the poor, unable to engage the services of better legal minds to defend them, so as to

end their ordeal as being under trial prisoners may also set free real culprits at large.

5. If the plead guilty application of the accused in rejected then the accused would face great hardship to

prove himself innocent.

To ensure fair justice, plea bargaining must encompass the following minimum requirements:

1. The hearing must take place in court.

2. There should be proper propagation and promotion of the subject through media, in order to prevent misuse

by criminals and police.

3. The court must satisfy itself that the accused is pleading guilty knowingly and voluntarily.

4. The Court should make sure that the provisions are not misused or manipulated by police or any agency and

should also ensure effective justice of the victims.

5. The effectiveness and attitude to general public towards the subject should be verified.

6. The police, legal practitioners and judicial authorities should be properly trained.

126

7. Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice to the

accused.

OBJECTIVE TYPE QUESTIONS

CODE OF CRIMINAL PROCEDURE

 Indian Criminal Procedure Code is mainly based on the old Code of ____

a) France

b) Germany

c) America

d) Russia

Ans: a

 Retributive Theory of punishment is based on the slogan _______

a) Eye for an eye and tooth for a tooth

b) Prevention is better than cure

c) Severe punishment so as to strike terror into the minds of those who are similarly inclined to commit the

offence

d) None of these

Ans: a

 Detterent Theory of punishment is based on the slogan _______

a) Eye for an eye and tooth for a tooth

b) Prevention is better than cure

c) Severe punishment so as to strike terror into the minds of those who are similarly inclined to commit the

offence

d) None of these

Ans: d

 Reformative Theory of punishment is based on the slogan _______

a) Eye for an eye and tooth for a tooth

b) Prevention is better than cure

c) Hate the sin not the sinner

d) None of these

Ans: c

 In India, Criminal procedure is a subject of:

a) State list

127

b) Union list

c) Concurrent list

d) Either (a) or (b).

Ans: c

 “Nemo debet bis vexari pro una et eadem caus” means ____

a) There should be a cause for every action

b) A man can be tried and punished any number of times on the same cause

c) A man shall not be twice vexed for one and the same cause

d) None of these

Ans: c

 Chapter XXI-A of the Code deals with _______ .

a) Trial of summons-cases by magistrates

b) Summary trials

c) Plea bargaining

d) None of these

Ans: c

 Plea bargning is available to accused for offences:

a) which is not punishable with imprisonment exceeding 7 years

b) for all category of offences

c) which are not punishable with impri

d) sonment exceeding 10 years

Ans: a

 Regular Cadre of “Prosecuting Officers" and "Prosecuting Officer" has been defined in:

a) 20 (4A)

b) 25

c) Explanation to 24 (6)

d) Proviso to S. 24 (6)

Ans: c

 To constitute th offence of conspiracy minimum _____ persons are needed.

a)Two (b) One (c) Three (d) Five. Ans: a

 S. __________ of Cr. P. C. provides that Every Deputy Director of Prosecution shall be subordinate to the

Director of Prosecution.

a) 20 (4A)

b) 27

128

c) 24 (6)

d) 25 A (4)

Ans: d

 S. __________ of Cr. P. C. provides that the provisions of S. 25 A shall not apply to the Advocate General

for the State while performing the functions of a Public Prosecutor.

a) 28

b) 26

c) 24 (6)

d) 25 A (8)

Ans: d

 S. 46 (4) has been inserted by _________

a) S. 42 of the Code of Criminal Procedure (Amendment) Act, 2005

b) S. 39 of the Code of Criminal Procedure (Amendment) Act, 2005

c) S. 6 of the Code of Criminal Procedure (Amendment) Act, 2005

d) It already exsisted

Ans: c

 Obligation of person making arrest to inform about the arrest, etc., to a nominated person has been dealt

u/S. _______

a) 46 (2)

b) 50 A

c) 44

d) 52

Ans: b

 S. __________ of Cr. P. C. provides that the police officer shall inform the arrested person of his rights u/S.

50 A (1) as soon as he is brought to the police station.

a) 50 A (2)

b) 50 A (4)

c) 44

d) 52

Ans: a

 S. __________ of Cr. P. C. provides that an entry of the fact as to who has been informed of the arrest of

such person shall be made in a book to be kept in the police station in such form as may be prescribed in

this behalf by the State Government.

a) 44

b) 52

c) 50 A (3)

d) 46 (2)

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Ans: c

 S. __________ of Cr. P. C. provides that it shall be the duty of the Magistrate before whom such arrested

person is produced, to satisfy himself that the requirements of S. 50 A (2) and S. 50 A (3) have been

complied with in respect of such arrested person.".

a) 50 A (4)

b) 44

c) 52

d) 50 A (1)

Ans: a

 "Examination" under sections 53, 53A and 54 shall include the examination of

a) Blood, blood stains, semen, swabs in case of sexual offences,

b) Sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques

including DNA profiling

c) Both (a) and (b)

d) None of these

Ans: c

 S. 53A of Cr. P. C. deals with

a) Examination of person accused of rape by medical practitioner

b) Examination of person accused of causing death by rash and negligent driving by medical practitioner

c) Examination of person accused of theft by medical practitioner

d) None of these

Ans: a

 S. __________ of Cr. P. C. provides that the exact time of commencement and completion of the

examination shall also be noted in the medical practitioner’s examination report

a) S. 53 A (1)

b) S. 53 A (4)

c) S. 55

d) S. 35

Ans: b

 S. __________ of Cr. P. C. provides that the registered medical practitioner shall, without delay, forward

the report to the investigating officer, who shall forward it to the Magistrate referred to in S.173 as part of

the documents referred to in S. 173 (5) (a).

a) S. 173 (4)

b) S. 53 A (2)

c) S. 174

d) S. 53 A (5)

Ans: d

 Identification of person arrested has been dealt in Cr.P.C in S. __________

130

a) 53

b) 54

c) 54 A

d) 55

Ans: c

 Section 166-A of Cr.P.C. deals with ____

a) Pleading guilty

b) Confession of accused

c) Medical Examination of victim of rape

d) None of above

Ans: c

 _______ consolidated the first uniform law of criminal procedure for the whole of India.

a. Code of Criminal Procedure, 1955

b) b Code of Criminal Procedure, 1882

a. Code of Criminal Procedure, 1898

b. None of these

Ans: b

 Chapter dealing with ‘Plea Bargaining’ has been inserted by _____

a) The Criminal Law (Amendment) Act, 1993

b) The Criminal Law (Amendment) Act, 2005

c) The Code of Criminal Procedure (Amendment) Act, 2001

d) The Code of Criminal (Amendment) Act, 1993

Ans: b

 As per the scheme of the Code before taking of cognizance of an offence the accused is given:

a) A right to be heard on the question of limitation

b) No right of hearing on the question of limitation

c) At the discretion of the court, grant any such hearing

d) None of these

Ans: b

 Plea bargaining has been dealt in section/s ______

a) 291-A and 311-A

b) 265 A to 265 L

c) 265 A to 265 D

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d) 436-A

Ans: b

 The concept of plea-bargaining as recommended by the Law Commission of India in its ______ Report on

the Code of Criminal Procedure.

a) 145th

b) 144th

c) 154th

d) (d)142nd

Ans: c

 The benefit of plea-bargaining would not be admissible to

a) Under trail prisoners

b) Habitual offenders

c) Persons guilty of offence under IPC.

d) None of the above

Ans: b

 In the Code of Criminal Procedure, the offences are classified into bailable and non-bailable, cognizable

and noncognizable under

a) Section 319

b) The 1st Schedule

c) the 2nd Schedule

d) Section 437

Ans: b

 In the Code of Criminal Procedure, cognizable offence has been defined under

a) S. 2 (b)

b) S. 2(h)

c) S. 2(c)

d) S. 2(d)

Ans: c

 In the Code of Criminal Procedure, non-cognizable offence has been defined under _______

a) S. 2 (b)

b) S. 2(h)

c) S. 2(l).

d) S. 2(d)

Ans: c

 A police officer can arrest a person without warrant when the offence committed by that person is/are

______

(a)Cognizable (b) Bailable (c) Non cognizable (d) Both (a) and (b) Ans: a

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 As per the provisions of the Code, if a person commits a cognizable offence, the police has the authority to:

a) Arrest a person without warrant

b) Investigate the offence without the permission of the Magistrate

c) Both (a) and (b)

d) None of these

Ans: c

 As per the Scheme of Criminal Procedure Code non-cognizable offences are ___

(a)Public wrongs (b) Private wrongs (c) Both (a) and (b) (d) None of the above. Ans: b

 12. As per the provisions of the Code, in a bailable offence, the bail is granted as a matter of right by

a) The police officer

b) The court

c) Both (a) and (b)

d) None of these

Ans: c

 7. As per the provisions of the Code, can conditions be imposed in a bailable offence while granting bail?

a) Yes, by the police officer

b) Yes, by the court

c) Neither (a) nor (b)

d) Either (a) or (b)

Ans: c

 What is the essential period for under trial detained person in jail to be released on bail?

a) One-half of maximum period of imprisonment

b) One-third of maximum period of imprisonment

c) One-fourth maximum period of imprisonment

d) No limit

Ans: a

 21. The amount of fine which can be imposed by Judicial First Class Magistrate is _________

a) Rs. 7000

b) Rs. 12000

c) Rs. 15000

d) Rs. 10000

Ans: d

 As per the provisions of section 2(d) “complaint”

133

a. Includes police diary

b. Does not include police report

c. Includes police report

d. None of these

Ans: b

 21. The power to pass sentence, as provided under section 29 of the Code of a Metropolitan

Magistrate, is

a) Imprisonment for life or of imprisonment for a term exceeding 7 years

b) Imprisonment for a term not exceeding 3 years and fine not exceeding Rs. 10,000

c) Any sentence authorised by law except a sentence of death d. imprisonment for a term not exceeding 2

years and fine not exceeding Rs. 2500.

d) None of these

Ans: b

 Under ______ it is mandatory for a police officer to inform the person arrested. the grounds of

arrest and right of bail if the offence is not non-bailable.

a) S. 150

b) S. 50

c) S. 54

d) S. 25

 As per the provisions __________of the Code, a police officer arresting a person may carry out the personal

search of the person arrested.

S. 53 (b) S. 57 (c) S. 54 (d) S. 51 Ans: d

 S. 54 of the Code deals with ___

(a)Medical examination of the accused the request of the police officer (b) Medical examination of the

accused at the request of the accused (c) Both (a) and (b) (d) None of these Ans: b

 Under _______ it is mandatory to produce the person arrested before the Magistrate, within 24 hours of his

arrest.

134

a) S. 157

b) S. 57

c) S. 48

d) S. 44

Ans: b

 Period of limitation for filing a suit to establish the right over the property attached, by a person other than

the person proclaimed, who has filed claims and objection to attachment, is ________ from the date of

disallowing the claim.

(a)1 month (b) 6 months (c) 3 years (d) 1 year Ans: d

 The provisions of 164 deals with

a) Statements made during the course of investigation

b) Confessions

c) Confessions as well as statements made during the course of investigation

d) None of these

Ans: c

 Under S. 167 of Cr PC an accused person can be remanded to police custody or judicial custody, the -

authorisation of such detention cannot exceed _________ at one time

a) 30 days

b) 25 days

c) 15 days

d) 10 days

Ans: c

 S. 167 of the Code provides that, the nature of custody can be altered from judical custody to police custody

and vice-versa this alteration can be done during the period of first _________.

a) 15 days

b) 16 days

c) 14 days

d) 12 days

Ans: c

 An Executive magistrate may require security for keeping good behaviour from habitaul offenders for a

period not more than ____

135

6 months (b) 3 months (c) 1 year (d) 3 years Ans: d

 Maintenance under S. 125 can be claimed by _______

(a) By a married daughter having attained majority

(b)A divorced wife who has not remarried

(d) None of these Ans: b

 Maintenance under S. 125 cannot be claimed by

a) A legally wedded wife during the subsistence of marriage

b) A married daughter having attained majority

c) Legitimate or illegitimate minor child

d) Father or mother Ans: b

 The provisions of S. 197 affords protection to

a) Private individuals

b) Employees of public sector undertakings

c) public servants

d) None of these Ans: c

 By virtue of ______ of the Code, a Court of Sessions has the original jurisdiction to take cognizance of

offences.

 (a) S. 299 (b) S. 193 (c) S. 199 (d) S. 198 106. Ans: c

 Period of limitation prescribed for making a complaint to the Court of Sessions in original jurisdiction is

_______ from the date of commission of the offence

a) 8 months

b) 6 months

c) 2 years

d) None of these Ans: b

 As per the provisions of the Code, special summons under S. 206, can be issued only by:

a) Magistrate only

b) Court of Sessions

c) Both (a) or (b)

d) High Court Ans: a

 The Amount of fine in case of petty offences as per S. 206 has been increased by 2005 amendment to:

a) Rs. 1500

b) Rs. 750

c) Rs. 1,000

d) Rs. 1,500 Ans: c

 The provisions of S. 210 of the Code deals with:

136

(a) Stay of police investigation (b) Stay of proceedings in complaint case (c) Both (a) and (b) (d) None

of these

Ans: b

 An undertrial prisoner has to be released on bail if he has been detained in jail upto ______ of maximum

period of imprisonment specified in offence

a) 1/3rd

b) 1/2th

c) 1/4th

d) 3/4th Ans: b

 As per the provisions of the Code, committal proceedings under S. 209 are in the nature of

a) Inquiry

b) Aid in investigation

c) Trial

d) None of these Ans: a

 As per the provisions of S. 437, of the Code on a mere fact that an accused person may be required for

being identified by witnesses during investigation

a) Bail can be refused

b) Bail cannot be refused

c) Bail should be refused

d) None of these Ans: b

 The provisions of S. 438 of the Code can be invoked in cases of ____________

(a) Non-bailable offences (b) Bailable offence(c) Both (a) and (b) (d) None of these Ans: a

 As per the provisions of the Code, surety can be sentenced to civil imprisonment in default of payment of

penalty under the surety bond for a maximum period of ______

(a) 2 months(b) 5 months (c) 6 months (d) 9 months. Ans: c

 Section _____ provides for addition or alteration of charge has been provided

(a) S. 306 (b) S. 215 (c) S. 216 (d) S. 206 Ans: c

 As per the provisions of the Code, _______ permits joint trial of several persons.

(a)S.322 (b) S. 223 (c) S. 323 (d) S. 221 Ans: b

 Section _____ provides that reports of certain Government scientific experts are admissible in evidence

without any formal proof.

(a) S. 393 (b) S. 292 (c) S. 293 (d) S. 392 Ans: c

 As per the provisions ________ of the Code, examination of witnesses in the absence of the accused can be

done.

(a) S. 299 (b) S. 399 (c) S. 224 (d) S. 424. Ans: a

137

 The period to conduct medical examination of victim of rape is – hours ?

(a) 24 (b) 48 (c) 18 (d) 12 Ans: a

 The principle of atreofois accuit and atrefois convict is contained in S.____ of the Code.

(a) 322 (b) 300 (c) 299 (d) 292 Ans: b

 As per the provisions of the Code, hearing on sentence by a Magistrate is required, on conviction:

(a)In a summons trial case under S. 255(2) (b) In a warrant trial case under S. 248(2) (c) Both (a) and (b) (d)

None of these Ans: c

 As per the provisions of the Code, an order passed under S. 451 is:

a) A final order

b) An interlocutory order

c) Both (a) and (b)

d) None of these Ans: b

 As per the provisions of the Code, under S. 459, the Magistrate may order for the selling of property by the

Government, if no claimant appears within

a) 1 year

b) 6 months

c) 8 months

d) 2 years. Ans: b

 Irregularities which vitiate trial has been provided under:

(a) S. 460 (b) S. 461 (c) S. 360 (d) S. 468. Ans: b

 For an offence punishable with fine only, the period of limitation prescribed under S. 468 is _____

a) 9 months

b) 1year

c) 6 months

d) 2 years. Ans: c

 As per the provisions of S. 468 of the Code, the period of limitation for an offence punishable with a term

not exceeding 1 year is ____

a) 90 days

b) 1year

c) 3 years

d) 5 years Ans: b

 The maximum amount of Compensation when a person is groundlessly arrested is ____

(a) Rs. 250 (b) Rs.500 (c) Rs. 1000 (d) 2000 Ans: c

 As per ______ of the Code, the Court can condone the delay.

(a) S. 373 (b) S. 471 (c) S. 473 (d) S. 372 Ans: c

138

S. ________ of Cr. P. C. provides that the State Government can, by general or special order and subject to

such control and directions as it may deem fit to impose, delegate its powers u/S. 20 (4) to the District

Magistrate.".

(a) 20 (4A)

(b) 20 (2)

(d) 23

Explanation inserted in the Cr. P. C. S. 24 (6), after the proviso, by the Code of Criminal Procedure

(Amendment) Act, 2005 shall be

(a) deemed to have been inserted w.e.f. from the 18th day of December, 1978,

(b) in force from the 23rd March 2006

(d) None of these

"Regular Cadre of Prosecuting Officers" and "Prosecuting Officer" has been defined in:

(a) 20 (4A)

(b) 25

(d) Proviso to S. 24 (6)

139

S. __________ of Cr. P. C. provides that the State Government can establish a Directorate of Prosecution

consisting of a Director of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.

(a) 20 (4A)

(b) 26

(d) 25 A (1)

S. __________ of Cr. P. C. provides that a person shall be eligible to be appointed as a Director of

Prosecution or a Deputy Director of Prosecution, only if he has been in practice as an advocate for not less

than ten years and such appointment shall be made with the concurrence of the Chief Justice of the High

Court.

(a) 20 (4A)

(b) 26

(d) 25 A (2)

S. __________ of Cr. P. C. provides that the Head of the Directorate of Prosecution shall be the Director of

Prosecution, who shall function under the administrative control of the Head of the Home Department in the

State.

(a) 20 (4A)

(b) 28

(d) 25 A (3)

S. __________ of Cr. P. C. provides that Every Deputy Director of Prosecution shall be subordinate to the

Director of Prosecution.

(a) 20 (4A)

140

(b) 27

(d) 25 A (4)

S. __________ of Cr. P. C. provides that every Public Prosecutor, Additional Public Prosecutor and Special

Public Prosecutor appointed by the State Government u/S. 24(1), or as the case may be, S. 24 (8), conduct

cases in the High Court shall be subordinate to the Director of Prosecution.

(a) 20 (4A)

(b) 23

(d) 25 A (5)

S. __________ of Cr. P. C. provides that every Public Prosecutor, Additional Public Prosecutor and Special

Public Prosecutor appointed by the State Government u/S 24(3), or as the case may be, S. 24 (8), to conduct

cases in District Courts and every Assistant Public Prosecutor appointed u/S. 25 (1) shall be subordinate to the

Deputy Director of Prosecution.

(a) 25 A (6)

(b) 20 (4A)

(d) 24 (6)

S. __________ of Cr. P. C. provides that the powers and functions of the Director of Prosecution and the

Deputy Directors of Prosecution and the areas for which each of the Deputy Directors of Prosecution have

been appointed shall be such as the State Government may, by notification, specify.

(a) 25 A (7)

(b) 20 (4A)

(d) 24 (6)

S. __________ of Cr. P. C. provides that the provisions of S. 25 A shall not apply to the Advocate General for

the State while performing the functions of a Public Prosecutor.

(a) 28

141

(b) 26

(d) 25 A (8)

After the substitution made by the Code of Criminal Procedure (Amendment) Act, 2005, the court of a

Magistrate of the first class may pass a sentence of :

(a) imprisonment for a term not exceeding 3 years, or of fine not exceeding Rs. 5000, or both.

(b) imprisonment for a term not exceeding 5 years, or of fine not exceeding Rs. 10000, or both.

(d) imprisonment for a term not exceeding 3 years, or of fine not exceeding Rs. 15000, or both.

After the substitution made by the Code of Criminal Procedure (Amendment) Act, 2005, the court of a

Magistrate of the second class may pass a sentence of imprisonment for

(a) a term not exceeding 1 year, or of fine not exceeding Rs. 1000, or of both.

(b) a term not exceeding 1 year, or of fine not exceeding Rs. 5000, or of both.

(d) a term not exceeding 1 year, or of fine not exceeding Rs. 10000, or of both.

S. __________ of Cr. P. C. provides that save in exceptional circumstances, no woman shall be arrested after

sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by

142

making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose

local jurisdiction the offence is committed or the arrest is to be made.".

328

(a) 46 (2)

(b) 46 (4)

(d) 25 A (8)

S. 46 (4) has been inserted by _________

(a) S. 42 of the Code of Criminal Procedure (Amendment) Act, 2005

(b) S. 39 of the Code of Criminal Procedure (Amendment) Act, 2005

(d) It already exsisted

Obligation of person making arrest to inform about the arrest, etc., to a nominated person has been dealt u/S.

_______

(a) 46 (2)

(b) 50 A

(d) 52

S. __________ of Cr. P. C. provides that every police officer or other person making any arrest under this

Code shall forthwith give the information regarding such arrest and place where the arrested person is being

328

S. 6 of the Code Of Criminal Procedure (Amendment) Act, 2005 (Act NO. 25 OF 2005 )

143

held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested

person for the purpose of giving such information.

(a) 44

(b) 52

(d) 50 A (3)

S. __________ of Cr. P. C. provides that the police officer shall inform the arrested person of his rights u/S.

50 A (1) as soon as he is brought to the police station.

(a) 50 A (2)

(b) 50 A (4)

(d) 52

S. __________ of Cr. P. C. provides that an entry of the fact as to who has been informed of the arrest of such

person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf

by the State Government.

(a) 44

(b) 52

(d) 46 (2)

S. __________ of Cr. P. C. provides that it shall be the duty of the Magistrate before whom such arrested

person is produced, to satisfy himself that the requirements of S. 50 A (2) and S. 50 A (3) have been complied

with in respect of such arrested person.".

(a) 50 A (4)

(b) 44

144

(d) 50 A (1)

The Code of Criminal Procedure (Amendment) Act, 2005 has substituted the Explanation of S. 53 of Cr. P. C

and thereby

(a) Added a new term examination and its meaning of

(b) Substituted the meaning of registered medical practitioner

(d) None of these

Substitution of an Explanation which included the meaning of registered medical practitioner by the Code of

Criminal Procedure (Amendment) Act, 2005 has affected:

(a) Ss. 53 and 53 A of Cr. P. C.

(b) Ss. 53 A and 54 of Cr. P. C.

(d) Ss. 53, 53 A and 54 of Cr. P. C.

"Examination" under sections 53, 53A and 54 shall include the examination of

(a) blood, blood stains, semen, swabs in case of sexual offences,

(b) sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques

including DNA profiling

(d) None of these

S. 53A of Cr. P. C. deals with

145

(a) Examination of person accused of rape by medical practitioner

(b) Examination of person accused of causing death by rash and negligent driving by medical practitioner

(d) None of these

S. __________ of Cr. P. C. provides that when a person is arrested on a charge of committing an offence of

rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his

person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical

practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a

practitioner within the radius of 16 KMs. from the place where the offence has been committed, by any other

registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector,

and for any person acting in good faith in his aid and under his direction, to make such an examination of the

arrested person and to use such force as is reasonably necessary for that purpose.

(a) S. 53 A (1)

(b) S. 55

(d) S. 53 A (3)

S. __________ of Cr. P. C. provides that the registered medical practitioner conducting examination under S.

53 A shall, without delay, examine such person and prepare a report of his examination giving particulars,

namely: (i) the name and address of the accused and of the person by whom he was brought, (ii) the age of the

accused, (iii) marks of injury, if any, on the person of the accused, (iv) the description of material taken from

the person of the accused for DNA profiling, and (v) other material particulars in reasonable detail.

(a) S. 53 A (2)

(b) S. 53 A (4)

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(d) S. 35

S. __________ of Cr. P. C. provides that the medical practitioner’s examination report shall state precisely the

reasons for each conclusion arrived at.

(a) S. 55

(b) S. 35

(d) S. 53 A (3)

S. __________ of Cr. P. C. provides that the exact time of commencement and completion of the examination

shall also be noted in the medical practitioner’s examination report

(a) S. 53 A (1)

(b) S. 53 A (4)

(d) S. 35

S. __________ of Cr. P. C. provides that the registered medical practitioner shall, without delay, forward the

report to the investigating officer, who shall forward it to the Magistrate referred to in S.173 as part of the

documents referred to in S. 173 (5) (a).

(a) S. 173 (4)

(b) S. 53 A (2)

(d) S. 53 A (5)

Identification of person arrested has been dealt in Cr.P.C in S. __________

(a) 53

(b) 54

(d) 55

147

Which were the sub sections inserted by the Code of Criminal Procedure (Amendment) Act, 2005 in S. 82 of

Cr. P. C.

(a) Sub-section (2) and (3)

(b) Sub-section (3) and (4)

(d) Sub-section (4) (5) and (6)

After the insertion made by the Code Of Criminal Procedure (Amendment) Act, 2005 under 102 (3) every

police officer acting under S. 102 (1) may give custody thereof to any person on his executing a bond

undertaking to produce the property before the court as and when required and to give effect to the further

orders of the court as to the disposal of the same:

(a) where the property seized is such that it cannot be, conveniently transported to the court

(b) where there is difficulty in securing proper accommodation for the custody of such property.

purpose of investigation

(d) It is possible in the case of (a) or (b) or (c)

Security for good behaviour may be required from habitual offenders if an Executive Magistrate receives

information that there is any offence under one or more of :

(a) The Drugs and Cosmetics Act, 1940 (23 of 1940)

(b) the Foreigners Act, 1946 (31 of 1946)

(d) None of these

Violence efeects the life of millions of women world wide, in all socio economic and educational

classes

329

The code prescribes that all offenses under indian penal code 1860.

330

Jyotsna Mishra, Women and Human Rights, Kalpaz Publications, Delhi (2000), p.1

330

Dr. T. Padma, The principles of Criminal Procedure Code, ALT Publications, Hyderabad (2010), p.13

148

The notion of justice evokes images of the rule of law, of the resolution of conflicts, of Institutions that make

laws and of those that enforce it.

331

S.Muralidar, Law, Poverty and Legal Aid, Lexis Nexis, New Delhi (2004), p.1