ACKNOWLEDGEMENTS

I wish to express my gratitude to Adv. Ashvin Bhalekar who inspired

me to write an Article on Criminal Law. I am thankful to him for his
comments accompanied with moral support during the writing.

My deepest gratitude to Adv. Rishi Bhuta who was always there to

support, guide and show the path towards success in this
memorable journey of five years in the profession. My sincere
thanks to Mr. Bhuta who was very generous in sharing his time and
knowledge with me while writing this article. It has been a pleasure
to work with him.
Webinar Note – 25th April, 2020

OFFENCES TRIABLE BY THE

COURT OF SESSIONS AND
LAWS RELATED thereto

Webinar Presentation

NEHA M. PATIL
Advocate, High Court

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“Really, what we want now, is

not laws against crime, but a law
against insanity. That is where the
true evil lies.”
- Mark Twain

INTRODUCTION:

CONCEPT OF CRIME

Crime is defined in ‘Halsbury’s Laws as “an unlawful act or default

which is an offence against public and renders the person guilty of
the act or default liable to legal punishment”.

In common parlance, a Crime is an unlawful act punishable by a State

or other authority.

Usually to be classified as a Crime, the “act of doing something

criminal” (actus reus) must- with certain exceptions- be
accompanied by the “intention to do something criminal” (mens rea)

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STAGES OF COMMISSION OF CRIME
AND RELATED PROCEDURE:

FIR ABA ARREST

BAIL INVESTIGATION

DISCHARGE
CHARGESHEET AND FRAMING TRIAL
OF CHARGE

JUDGEMENT APPEAL

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1] FIRST INFORMATION REPORT (FIR)

COGNIZABLE OFFENCE- Cognizable offence is defined under

Section 2 (c) of CR.P.C. “Cognizable offence means an offence for
which and the cognizable case means a case in which, a police officer
may, in accordance with the First Schedule or under any other law
for the time being in force, arrest without warrant”.

First Information Report is not defined in the Criminal procedure

Code, 1973 (CR.P.C.), but these words are understood to refer to the
information recorded under Section 154 (1) of CR.P.C. The report
containing the information received in first point of time by the
Officer-In-Charge of the police Station about the commission of
cognizable offence is termed as FIR.

Who may set the law in motion–

FIR may be lodged by the injured/victim, aggrieved, eyewitness or

any other person, who has the knowledge of the commission of an
offence or a person who has hearsay knowledge of the commission of
an offence.

Police authorities by themselves may register a suo-moto FIR after

proceeding to the scene of occurrence on receipt of information about
the commission of cognizable offence. Police can register the FIR

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even after the arrest of an accused or after preparing the spot
Panchnama of the scene of occurrence of an offence.

Right of the citizen in the capacity as complainant-

As enshrined in Article 21 of the Constitution of India, the life and

personal liberty of a person shall not be deprived except according
to the procedures established by law. Every Indian Citizen is
bestowed with personal and fundamental rights safeguarding him
against harm, injury or violation as against his personal and legal
rights. On violation or infringement of these rights, an aggrieved
person is entitled to lodge a complaint to the police. Our legal
system provides that on lodging of such a complaint, it shall be
the duty of every officer-in-charge of the Police Station to receive
such complaint and take appropriate action. Refusal to register a
case amounts to infringement of the fundamental rights guaranteed
and dereliction of duty on the part of the concerned Police
Officer. Such aggrieved person has the right to claim damages from
the errant Police Officer.

* If any information disclosing a cognizable offence is laid before

officer-in charge of the police station satisfying the requirements of
section 154 (1) of CR.P.C., the said police office has no other option
except to enter the substance thereof in the prescribed form, that is

to say, to register a case on the basis of such information. Further

under the newly introduced sub-section (4) of section 155, when a
case relates to two offences to which at least one is cognizable, the
case shall be deemed to be a cognizable case notwithstanding that
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the other offences are Non-cognizable and, therefore, under such
circumstances the Police officer can investigate such offences with
the same powers as he has while investigating a cognizable offence-

Lalita Kumari vs Govt. of UP and Ors. (MANU/SC/1166/2013)

Right of an accused after registration of FIR-

Once the criminal law is set in motion and liberty of an individual is

at stake, he should have the information to enable him to take
necessary steps to protect his liberty which is the fundamental right
guaranteed under Article 21 of the Constitution of India.

In landmark judgment of Youth Bar Association Of India Vs Union

Of India And Others, AIR (2016) SC 4136, the Hon’ble Apex Court
has issued following guidelines on First Information Report :-

1) An accused is entitled to get a copy of the FIR

at an early stage than as prescribed under
section 207 of the Cr. P. C. 1973

2) The copies of the FIR, unless the offence is

sensitive in nature like sexual offences, offences
under POCSO Act 2012 and such other offences
should be uploaded on the police website.

3) The decision not to upload the copy of the FIR

on the website shall not be taken by an officer
below the rank of Deputy Superintendent of
Police or any person holding equivalent post.

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4) The direction for uploading of FIR on the
website of all the states shall be given effect
from 15th November, 2016.

5) If some state police forces are not complying

with these directions, then the same will
amount to contempt of the court.

No second FIR for the same offence-

There can be no second FIR and no fresh investigation on receipt of

every subsequent information in respect of the same cognizable
offence or same occurrence giving rise to one or more cognizable
offences. All subsequent information will be covered by Section 162
of CR. P.C. Even if, after conclusion of the investigation pursuant to
the filing of the FIR and submission of report under Section 173 (2)
of CR. P. C., officer-in-charge of the Police Station comes across any
further information pertaining to the same incident, he can make
further investigation, normally with the leave of the court and
forward the further evidence, if any collected with further report
under section 173 (8) OF The CR. P. C.
Amrutbhai Shambhubhai Patel vs Sumanbhai Kantibhai Patel
and Ors, (2017) AIR (SC) 774.

The registration of the information as the second FIR in regard to the

same incident and making a fresh investigation in not permissible
under the provisions of CR. P. C. It amounts to double jeopardy.
T. T. Antony vs State of Kerala, (2001) 6 SCC 181.

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An FIR is not substantive evidence. It is only information about the
commission of cognizable offence. (Sohan Lal@Sohan Singh Vs
State Of Punjab , AIR (2003) SC 4466.

2. ANTICIPATORY BAIL APPLICATION

(ABA)

Anticipatory Bail allows a person to seek bail in anticipation of

an arrest on accusation of non-bailable offence committed by
him.

The provision of Anticipatory Bail is new creation under The Code of

Criminal Procedure, 1973 as contained in Section 438. Though the
term “Anticipatory Bail” is not used under the provisions of Section
438 of CR. P. C., but it provides that a person apprehending arrest
may apply to the High Court or The Court of Sessions for appropriate
directions.

Grant of Anticipatory Bail– two basic principles-

Broadly stated, two basic principles which must be kept in view

while considering the question of grant of Anticipatory Bail are (i)
that there should be no likelihood of the accused absconding and (ii)
that there should be no likelihood of the accused misusing his liberty.

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The scope and ambit of Section 438 of CR. P. C. is discussed at length

by the Apex Court in the landmark Judgment of Gurbaksh Singh
SibbiaVs The State Of Punjab, (1980)SCC (Cri) 465.

1) Section 438(1) is to be interpreted in light

of Article 21 of the Constitution of India.
2) Filing of FIR is not a condition precedent to
exercise of power under section 438.
3) Order under section 438 would not affect the
right of police to conduct investigation.
4) Conditions mentioned in section 437 cannot be
read into section 438.
5) Although the power to release on anticipatory
bail can be described as of an "extraordinary"
character this would "not justify the conclusion
that the power must be exercised in exceptional
cases only." Powers are discretionary to be
exercised in light of the circumstances of each
case.
6) Initial order can be passed without notice to the
Public Prosecutor. Thereafter, notice must be
issued forthwith and question ought to be re-
examined after hearing. Such ad-interim order
must conform to requirements of the section
and suitable conditions should be imposed on
the applicant.

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7) The Law Commission in July 2002 has severely
criticized the police of our country for the
arbitrary use of power of arrest which, the
Commission said, is the result of the vast
discretionary powers conferred upon them by
this Code. The Commission expressed concern
that there is no internal mechanism within the
police department to prevent misuse of law in
this manner and the stark reality that
complaint lodged in this regard does not bring
any result. The Commission intends to suggest
amendments in the Criminal Procedure
Code and has invited suggestions from various
quarters. Reference is made in this Article to the
41st Report of the Law Commission wherein the
Commission saw `no justification' to require a
person to submit to custody, remain in prison
for some days and then apply for bail even when
there are reasonable grounds for holding that
the person accused of an offence is not likely to
abscond or otherwise misuse his liberty.
Discretionary power to order anticipatory bail
is required to be exercised keeping in mind
these sentiments and spirit of the judgments of
this court in Joginder Kumar v. State of U.P.
and Others (1994) 4 SCC 260.
8) No inflexible guidelines or straitjacket formula
can be provided for grant or refusal of
anticipatory Bail.

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Section 41 (A) of The Cr. P.C. –

Section 41 (A) is incorporated in CR.P.C. to avoid unnecessary

arrest or threat of arrest of an accused. Section 41 (A) of CR. P. C.
as inserted by The Code of Criminal Procedure (Amendment Act),
2008 (Act 5 of 2009), which is relevant in the context reads as
follows-

41(A)-Notice of appearance before police officer-

(1) The police officer shall, in all cases where the arrest of a person
is not required under the provisions of sub-section (1) of Section 41,
issue a notice directing the person against whom a reasonable
complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place as may be
specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty
of that person to comply with the terms of the notice.

(3) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the offence referred to
in the notice unless, for reasons to be recorded, the police officer is
of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms
of the notice or is unwilling to identify himself, the police officer
may, subject to such orders as may have been passed by a

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competent Court in this behalf, arrest him for the offence
mentioned in the notice.”

Aforesaid provision makes it clear that in all cases where the arrest
of a person is not required under Section 41(1), CR.P.C, the police
officer is required to issue notice directing the accused to appear
before him at a specified place and time. It is obligatory for such an
accused to appear before the police officer and it further mandates
that if such an accused complies with the terms of notice he shall not
be arrested, unless for reasons to be recorded, the police office is of
the opinion that the arrest is necessary. At this stage also, the
condition precedent for arrest as envisaged under Section
41 CR.P.C.has to be complied and shall be subject to the same
scrutiny by the Magistrate as aforesaid.
(The above principle of law has been discussed at length by the Apex
Court in Arnesh Kumar Vs State Of Bihar And Others
(MANU/SC/0559/2014)

Application for Anticipatory Bail before the filing of

Charge-Sheet-

In the case of Gurbaksh Singh SibbiaVs The State Of Punjab (AIR

1980 SC 1632), a constitutional bench of the Supreme Court of India
has held that the filing of FIRST INFORMATION REPORT is not a
condition precedent to exercise the power to grant ANTICIPATORY
BAIL under section 438 of CR. P. C.

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Similarly, in the case of Rajasekhara Reddy Vs The State Of Andhra
Pradesh, (1999) CRLJ 1933 at page 1935, it has been held that filing
of FIR and registration of crime by the Police is not a condition
precedent to exercise the powers under section 438 of CR. P. C.
Jurisdiction of the court can be invoked by any person even in the
absence of registration of crime and there is no requirement of
furnishing of a Crime number as such. Moreover, there is no
requirement that a copy of FIR should be made available for the
purpose of considering the application under Section 438 of CR. P. C.

Anticipatory Bail Protection till the End of Trial subject to new

law as laid down in Sushila Agarwal vs State (NCT of Delhi) and
Others, (2020) SCC Online SC 98-

It is held by the Apex Court that the protection granted to a person

under section 438 of CR. P. C. shall not invariably be limited to a
fixed period; it should be in favour of accused without any
restrictions on time. If there are specific facts and features in regard
to any offence, it is open for the court to impose any appropriate
condition (including fixed nature of relief).

The life or duration of an Anticipatory Bail order does not end

normally at the time and stage when the accused is summoned by
the Court or when charges are framed, but can continue till the end
of the trial. Again, if there are any special or peculiar features
necessitating the Court to limit the tenure of Anticipatory Bail, it is
open for it to do so.

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Powers of The High Court and The Court Of Sessions–
Section 438 of CR. P. C. gives concurrent powers of granting
Anticipatory Bail to the High Court and the Court of Sessions.

3. ARREST
Sections 41 To 60 (A) of The Code Of Criminal Procedure, 1973 of
India deal with the powers of Police to effect arrest, their duties
while affecting the arrest and the rights of the arrestees.

Police are also authorized to arrest person when they are issued with
warrants by the Courts in summons cases if necessary, in case of
breach of condition for appearance in courts and when there is
cancellation of remission and issuance of warrant for retaking them
in prison.

Meaning of Arrest- Arrest means the deprivation of liberty of a

person by the legal authority or at least by apparent Legal authority.

In a democratic society like ours, law is expressly conscious of the

underlying importance of Personal Liberty of each and every
individual and does not tolerate the detention of any person without
a legal sanction. Indian Constitution recognizes the right to personal
liberty as a fundamental right under Article 21 of The Constitution
of India which provides that, “No person shall be deprived of his life
or personal liberty except according to the procedure established by
Law”. Thus the personal liberty being a corner stone of our social

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structure, the legal provisions related to Arrest have special
significance and importance.

Procedure for Arrest under Cr. P. C.-

Section 41 of Cr.P.C.-When Police Officer may arrest without

warrant-

(1) Any police officer may without an order from a Magistrate and
without warrant, arrest any person- (a) who commits, in the
presence of police officer, a cognizable offence, (b) against whom a
reasonable complaint has been made or credible information has
been received or reasonable suspicion exists that he has committed
a cognizable offence punishable with imprisonment for a term which
may be less than seven years or which may extend to seven years
whether with or without fine, (c) who has been proclaimed offender

either under this code or by order of the State Government or, (d) in
whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be
suspected of having committed an offence with reference to such
thing, or (e) who obstruct the Police office while executing his duty,
or who has escaped, or attempts to escape, from lawful custody or,
(f) who is reasonable suspected of being a deserter from any of the
armed forced of the Union or, (g) who has been concerned in, or
against whom a reasonable complaint has been made, or credible
information has been received or a reasonable suspicion exist, of
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,

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or otherwise, liable to be apprehended or detained in custody in India
or, (h) who, being a released convict, commits a breach of any rule
made under sub-section (5) of section 356 0r, (i) for whose arrest
any requisition, whether written or oral, has been received from
another police officer, provided that the requisition specifies the
person to be arrested and the offence or other cause for which the
arrest is to be made and it appears therefrom that the person might
lawfully be arrested without a warrant by the officer who issued the
requisition.

(2) No person concerned in a Non-Cognizable offence or against

whom a complaint has been made or credible information has been
received, shall be arrested except under a warrant or order of a
Magistrate.

The Code of Criminal Procedure Amendment Act in 2008 (5 Of

2009) made a stringent provision under Section 46-

(1) In making an arrest, the Police officer or any other person or

any other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be
a submission to the custody by word or action- Provided that
where a women is to be arrested, unless the circumstances
indicate to the contrary, her submission to the custody on
oral intimation of arrest shall be presumed and , unless the
circumstances otherwise require or unless the police officer
is a female, the Police Office shall not touch the person of a
woman for making her arrest.

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(2) If such person forcibly resist the endeavor to arrest him, or
attempts to evade the arrest, such police officer or the person
may use all means necessary to effect the arrest.
(3) Nothing in this section gives rise to cause the death of a
person who is not accused of an offence Punishable with
death or imprisonment for life.
(4) Save in exceptional circumstances, no woman shall be
arrested after Sun-set and before Sun-rise, and where such
exceptional circumstance 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
jurisdiction the offence is committed or the arrest is to be
made.

The consequences of not complying with the provisions of Section 46

sub-section 4 of CR.P.C. can be disastrous for the prosecution as the
mandatory benefit of such an arrest shall be accrued in favour of an
accused. (Kavita Manikikar Vs Central Bureau of Investigation,
Writ Petition No. 1142 of 2018, BHC)

Constitutional safeguard against arbitrary arrest and

detention-

1. Article 21 of the Constitution of India enshrines that

“No person shall be deprived of life and personal
liberty except according to the procedure established
by Law”

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2. Article 22 clauses (1) and (2)of the Constitution of
India guarantee four rights to a person, who is
arrested for any offence under ordinary law-
a. The right to be informed, as soon as may be, the
ground of arrest.
b. The right to consult and be represented by a lawyer
of his or her own choice.
c. The right to be produced before a magistrate within
24 hours.
d. The freedom from detention beyond the said period
except by the order of the Magistrate.

*The Hon’ble Apex Court has laid down the Guidelines governing
arrest of a person in Jogindar Kumar Vs The State Of Up, AIR
(1994) SC 467.

Guidelines for Prosecution of Doctors (surgeons and

physicians) for alleged rashness and negligence under Section 304
(A) of The Indian Penal Code:-In order to protect Doctors/Medical
Practitioners the Supreme Court laid down certain guidelines to
govern in future, Criminal Prosecution of Doctors. Entertainment
of private complaints against doctor is made conditional. It is
further provided that arrest should not be made in routine manner.
(Jacob Mathew Vs The State Of Punjab – (2005) CRLJ 3710.

4. BAIL, REMAND AND CUSTODY

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Provisions regarding releasing of an accused on Bail are dealt
with Under Sections 50 (2), 436 to 439 and 441 (A) of The Criminal
Procedure Code and First Schedule of CR. P. C. and Article 22 of the
Constitution of India.

Remand of an accused beyond the period of 24 hours of his

detention by Police is dealt with under Sections 57, 167, 209 and
309 of The CR. P. C.

Custody of an arrested person, which may be either Police Custody

or Judicial Custody, is dealt with under sections 167 and 309 of The
CR. P. C.

Meaning of Bail, Remand and Custody-

In common parlance, Bail means the temporary release of an accused

person awaiting Trial, sometimes on condition that a sum of Money
or Bond is furnished to guarantee their appearance in Court.

Wharton’s Law Lexicon 1976, Reprint edition, explains “Bail” as “to

set at liberty” a person arrested or imprisoned, on security being
taken for his appearance on a day and at a place certain, which
security is called bail because the party arrested or imprisoned is
delivered in to the hands of those who bind themselves or become
bail for his due appearance when required in order that he may be
safely protected from prison, to which they have, if they fear his
escape, etc., the legal power to deliver him.

The principal use of Bail in modern legal system is to secure the

freedom, pending trial, of one arrested and charged with a criminal

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offence. The purpose of bail pending trial in criminal cases is to avoid
inflicting punishment upon an innocent person (who may not be
found guilty at trial) and to encourage the unhampered preparation
of his defense.

Bail in Cognizable and Bailable Offence

SECTION 436 OF CR. P.C.

1. When any person accused of bailable and cognizable offence is

arrested by Police without warrant and if he is prepared to give
sureties, at any time he is in the custody of a Police Officer,such
person shall be released on bail (Section 436 (1) of CR. P. C.).
2. When any person accused of a bailable and cognizable offence
appears or is brought before a Court and if he is prepared to
give sureties, at any stage of the proceedings before such Court,
such person shall be released on bail (Section 436 (1) of CR P.
C.).
3. When any person has failed to comply with the conditions of
bail-bond as regards the time and place of his appearance, the
Court may refuse to release him on bail, when the accused so
released on bail earlier, appears in the court or brought to the
custody in the same case. (Section 436 (2) of CR. P. C.).

Bail in Cognizable and Non-Bailable Offence

Section 437 of CR. P. C. -

1.When any person accused of a Non-bailable and cognizable offence

is arrested by the police officer without a warrant or such person

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appears or brought before the Court (other than Sessions or High
Court) may be released on bail, provided

(i)There is reasonable ground to believe that he is not guilty of an

offence punishable with death or imprisonment for life,

(ii)He had not been convicted previously for an offence punishable

with death, imprisonment for life or imprisonment for 7 years or
more, or he had not been previously convicted for two or more
occasions of a cognizable offence punishable with imprisonment
for 3 years or more but not less than 7 years.

(iii)In the above-mentioned two situations, the accused may be

released on bail by the Court, provided (a) such person is under
the age of 16 years, or is a woman, or is sick or infirm, (b) it is just
and proper for any other special reasons to release the accused
mentioned in clause (ii), (c) the mere fact that the accused may be
required for identification by the witnesses shall not be a sufficient
ground to refuse bail, when he is otherwise eligible to be released
on bail. (d) a person concerned in an offence, which is punishable
with death, imprisonment for life or imprisonment for 7 years or
more shall not be released on bail without giving an opportunity
to the Public Prosecutor.

Special Powers of High Court or Court Of Sessions

SECTION 439 OF CR. P.C. -

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Any person who is concerned in an offence punishable with
imprisonment which may extend to 7 years or more or of offence
Under Chapter VI, XVI or XVII of the Indian penal Code or abetment
of or conspiracy or attempt to commit, any such offence may be
released on bail by The High Court or The Court of Sessions and it
may impose any condition which it considers necessary.

Any condition imposed by a magistrate when releasing any person

on bail may be set aside or modified by the High Court of Court of
Sessions.

In all cases, which are exclusively triable by Court of Sessions, or

any offence punishable with imprisonment for life, the High Court
may release the accused on bail with prior notice to the Public
Prosecutor. If it is not practically possible to give prior notice to the
Public Prosecutor, the High Court shall record the reason for doing
so in writing.

Well-acclaimed Jurists and pioneer of judicial activism Late Shri.

Justice V. R. Krishna Iyer in The State Of
RajashthanVsBalchand@Baliay (1977) AIR 2477, held that, “The
basic rule may perhaps be Bail not jail”. While pronouncing this
Landmark verdict, Justice Krisna Iyer relied upon many rights
guaranteed to the accused by the Supreme law of the Land, The
Constitution of India, and the most prominent among them being the
Fundamental Right to Liberty guaranteed under Article 21 of The
Constitution of India and held that ‘..Courts, while interpreting
the provisions of the criminal Procedure Code pertaining to
arrest, ordinarily hold that unless indispensable, the detention
of an individual must be avoided’.

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Sub-section (2) of Section 167 of the Cr.P.C. reads as
under-

(2) The Magistrate to whom an accused person, if forwarded under

this section may, whether he has or has no jurisdiction to try the
case, from time to time, authorize the detention of the accused in
such custody as such Magistrate thinks fit, for a term exceeding
fifteen days 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 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 authorize 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 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.

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In Nijamuddin Mohammad Bashir Khan Vs The State Of
Maharashtra, 2006 CRLJ 4266, it has been held that in case
of failure to file charge-sheet within period of 60 days, accused is
entitle to bail. Provisions of Section 167 (2) (a) (i) of CR. P. C.
prescribing 90 days period to file charge-sheet apply to cases where
minimum period of imprisonment is 10 years, meaning thereby
imprisonment could be for period of 10 years or more. Offence under
section 366 of The IPC is not covered by the said provision.

5. INVESTIGATION AND
FILING OF CHARGE-SHEET

THE STAGES OF INVESTIGATION

BY POLICE MAY INCLUDE -

1.Registration of FIR (Section 154 of CR. P. C.)

2.Ensuring medical treatment to the injured

3. Proceeding to the spot

4. Ascertaining to the facts and circumstances of the case.

5. Observation of Scene of occurrence and collection of material

objects.

6. Examination of witnesses and recording their statements (Section

161 of CR. P. C.).

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7. Recording of dying declaration if necessary (Section 32 of The
Indian Evidence Act).

8. Conducting inquest if it is warranted and sending the body for

autopsy.

9. Arrest of the accused and recording his confessional statement

10. Seizure of material objects in consequence of the confession

(Section 27 of The Indian Evidence Act)

11. Conducting of the Test-identification-Parade, if it warrants

(Section 9 of The Indian evidence Act)

12. Formation of an opinion as to whether by the evidence collected,

there is a case to proceed against the accused before a Court of Law
or not.

13. Laying Charge-sheet (Final report) against the accused in a

competent court of law under appropriate Sections of Law. (Section
173 of CR. P. C.)

SECTION 2 (h) OF The Criminal Procedure Code, 1973 defines

“Investigation”. It includes all the proceedings under CR. P. C. for
the collection of evidence conducted by a Police Officer or by any
other person (other than a Magistrate) who is authorized by a
Magistrate in this behalf.

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“Investigation” is an official examination of facts about a situation,
an event, crime etc, to find out the truth about it or how it happened.

Investigation may be done by-

a. A Police Officer
b. Any person authorized by a Magistrate
c. It shall not be done by a Magistrate

Statutory Powers of Police to conduct investigation-

The Officer-In-Charge of a police station is vested with the power to

conduct investigation as per Sections 156 and 157 of The CR. P. C.
and these powers may be summed up as follows-

1. An officer-in-charge of the police station may conduct

investigation under Section 156 (1) CR. P. C.

2. An officer in charge of a police Station shall not include a Police

Constable.

3. As per Section 156 (1) of CR. P. C., the Officer-in-charge of the

Police Station is authorized with the power of investigation only in
respect of cognizable offences.

4. Prior permission by a magistrate is not necessary to a police

Officer for conducting investigation in cognizable case.

5. Vesting of power to register a cognizable offence is one thing

but vesting of power to take up investigation is something else.
An officer-in-charge of a Police Station is bound to register an FIR if

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it discloses the commission of a cognizable offence, irrespective of
the fact that whether such cognizable offence is committed within
his local jurisdiction or not.

6. No option or discretionary power is given to him to either

register or refuse to register a cognizable offence. But, such an
Officer-in-charge of a Police Station is authorized to take up the
investigation only when such offence is committed within his local
jurisdiction as mandated in Sections 177 to 189 of CR. P. C. If the
offence for which the officer-in-charge of the Police station has
registered a case under section 154 of CR. P. C. does not fall within
the local jurisdiction of that Police Station, the Police Officer shall
forward such case to a jurisdictional Police Station after conducting
preliminary enquiry for the purpose of ascertaining the jurisdiction.

6. FINAL REPORT/CHARGE SHEET

After completion of investigation as stipulated in Chapter XII of CR.

P. C., the investigating Police Officer shall release the accused,
when evidence is insufficient as per Section 169 CR. P. C., which
runs as follows:

“If, upon an investigation under Chapter XII of CR.P.C., 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 his executing a bond, with or without

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sureties, as such Officer may direct, to appear, if and when so
required, before a Magistrate empowered to take cognizance of the
offence on a Police report and to try the accused or commit him for
trial,”

After completion of investigation, if it appears to the investigation

Officer that there are sufficient materials to proceed against the
accused, against whom a criminal case was registered and
investigated, he shall submit a Police Report in Form No. 89
(which is popularly known as Police Report/Final Report/Charge
Sheet)in the Court of jurisdictional Magistrate, who is having
jurisdiction to take cognizance and try the case as per the mandate
under Section 173 (2) CR.P.C.

*It is a well settled principle of law that when a final report is filed
by the investigating officer in exercise of his power under section 173
of CR. P. C., the complainant has the following rights-

a. The right to be given notice on filing of Police report

b. The right to file protest petition, which may be
treated as a complaint by magistrate
c. The right to question the fairness of the investigation
and demand further investigation.
Abhinandan Zha and Ors. Vs Dinesh Mishra
(1968) AIR 117.

Once the Charge-sheet is filed under section 173 (2) CR.P.C., the
Magistrate may, on the basis of protest petition, take cognizance of
offence complained of or on application made by investigating
authorities permit further investigation under Section 173 (8) of

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CR.P.C. But, the Magistrate cannot suo-moto direct further
investigation or reinvestigation on account of bar under 167 (2) of
CR.P.C. Not only was Magistrate wrong in directing reinvestigation
on application made by de facto complainant, but he also exceeded
his Jurisdiction in entertaining said application filed by de facto
complainant. Since no application is made by the investigating
authorities for conducting further investigation under section 173
(8) of CR.P.C, the other course of action open to the magistrate was
to take recourse of provisions of section 319 of CR.P.C. at the stage
of trial if any material is disclosed during the examination of
witnesses during the trial. Reeta Nag Vs The State Of West Bengal
(2009) 9 SCC 129

Further investigation under Section 173 (8) of Cr.P.C.-

Section 173 (8) of CR.P.C. authorizes further investigation in the

following manner-

1. Nothing in section 173 of CR.P.C. shall be deemed to preclude

further investigation in respect of an offence after a Final Report
under sub-section (2) of Section 173 of CR.P.C. has been
forwarded to the Magistrate.
2. Where upon such further investigation, the officer-in-charge of
the Police Station obtains further evidence, oral or documentary,
he shall forward to the magistrate, Further Report regarding,
such evidence in the form prescribed.
3. The provisions of sub-sections 2 to 6 of Section 173 of CR.P.C.
shall, as far as may be, apply in relation to such further

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investigation report as they apply in relation to final report
forwarded under sub-section 2 of section 173 of CR.P.C.

7. TRIAL

STAGES OF SESSIONS TRIAL-

1.Framing of charge.

2. Compliance of Documents related to the offence under

section 294 of CR. P. C.

3. Issuance of witness summons.

4. Examination of witnesses.

5. Examination of accused under section 313 of CR.P.C.

6. Examination of Defense witnesses.

7. Arguments of prosecution as well as Defense council

on the Point of Law.

8. Judgment of Acquittal or Conviction.

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9. Hearing of accused on the point of conviction if the
judgment of conviction is pronounced by the Judge.

1o.Sentence.

Discharge and Framing of Charge in Sessions Trial-

Section 227: Discharge

If upon consideration of the record 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 that
there is no sufficient ground for proceeding against the accused, he
shall discharge the accused and record his reason for doing so.

In P. Vijayan Vs State of Kerala (2010) 2 SCC 398, The Hon’ble

Apex Court has observed that, “If two views are possible and one
of them gives rise to suspicion only, as distinguished from grave
suspicion as to the guilt of the accused, the trial Judge will be
empowered to discharge the accused and at this stage the trail
Judge is not to see whether the trial will end in conviction or
acquittal. Further, the words, ‘not sufficient ground for
proceeding against the accused’ in Section 227 of CR.P.C’.clearly
show that the Judge is not amere post office to frame charge at
the behest of the prosecution, but has to exercise his judicial
mind to the facts of the case in order to determine whether a case

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for trial has been made out by the prosecution. In assessing this
fact, it is not necessary for the court to enter into the pros and
cons of the matter or enter into a weighing and balancing of
evidence and probabilities which is really a function of the court,
after the trial starts.”

Framing of Charge-

SECTION 228 OF CR.P.C-

If after the consideration of facts and hearing on the point of charge,

if the Judge is of an opinion that there is ground for presuming that
the accused has committed an offence which-

a. If not exclusively triable by the Court of Sessions, he may, frame

a charge against the accused and by order, transfer the case for
trial to the Chief Judicial magistrate, and thereupon the Chief
Judicial magistrate shall try the offence in accordance with the
procedure for the trial of warrant cases instituted on Police
report.

b. If exclusively triable by the Court of Sessions, he shall frame in

writing, a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-
section (1), the charge shall be read and explained to the accused and
the accused shall be asked whether he pleads guilty of the offence
charged or claimed to be tried.

Conviciton on Plea of Guilty-

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A “Plea of Guilty” in an admission of all facts on which the charge
is framed as well as the admission of the guilt in respect of the
charge.

Section 229 of the CR.P.C.envisages provision of conviction on plea

of guilty. If the accused pleads guilty, the Judge shall record the plea
and may in his discretion, convict him thereon.

If the statement of the accused reads as a whole does not make out
an offence, the mere words, “I have committed an offence” will not
empower the court to convict him. Sudhir Chand Vs The State
(1971) CRLJ 86 and The State of Mp Vs Batra Kunjona (1960)
CRLJ 965.

Acquittal in case of No Evidence

Section 232 of the CR.P.C.lays down provisions of acquittal in case

of ‘No Evidence’ even before accused is called upon to enter on his
defense and adduce any evidence he may have insupport thereof.

The object of Section 232 of the Code of Criminal Procedure is to

expedite the conclusion of Sessions Trialand at the same time to
avoid unnecessary harassment to the accusedby calling upon him to
adduce the evidence or to avoid a public time, when there is no
evidence at all against the accused.

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Section 235 provides for provisions of Acquittal or
Conviction after hearing arguments and points of law.
If the accused is convicted, the Jude shall, unless he proceeds in
accordance with the provisions of Section 360, hear the accused on
the question of sentence, and then pass sentence on him according to
Law.

8. APPEAL AGAINST ACQUITTAL-

Section 378 of the Code of Criminal Procedure provides a right of

appeal against acquittal. The State is responsible for filing the
appeal because it plays the role of the prosecution in the criminal
trial. After amendment in section 372 of the code of criminal
procedure, a victim also has the right to file such an appeal. Prior to
the Amendment Act of 2009, the victim had no right to appeal
against acquittal. Now victim can file such appeal only when the
State does not prefer an appeal against the order of acquittal.

Prior to the said amendment of 2009, the victim had the right to file
a revision from the order of acquittal. The revisional court could not
amend that order except to remand the case for re-trial. Thus the
victim had little scope against the acquittalof the accused. Thevictim
can exercise the right of appeal in theses three situations:-

1. Against acquittal of the accused.

2. When the accused has beenconvicted for a lesser offence.

3.When the Victim is awarded inadequate compensation.

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The victim has to follow the procedure laid down in section 378 of
CR.P.C. for filing appeal provided under Section 372. According to
sub-section 3 of section 378 of CR.P.C, permission of the High
Court is mandatory for appeal against acquittal. This section says
that, “No appeal shall be entertained without leave of the High
Court”. Satya Pal Singh Vs The State Of Mp - Criminal Appeal No.
1315 Of 2015.

In Mallikarjun Kodagali Vs The State of Karnataka, (2019) 2 SCC

752, The Supreme Law of the Land held that, both the victim and the
state/ prosecution can file appeals independently without being
dependent on the exercise of the right by the other.

Limitation Period for Appeal against Acquittal-

As per Subsection 5 of Section 378, a private complainant can move

an application for granting special leave to appeal within sixty days
from the date of order of acquittal. Satya Pal Singh Vs The State Of
Mp - Criminal Appeal No. 1315 Of 2015.

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