VIDHI JUDICIAL ACADEMY

By- V. Verma

INTRODUCTION
▪ The essential object of criminal law is to protect society against criminals and law-breakers.
▪ For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to
make the actual offenders suffer the prescribed punishments for their crimes.
▪ Therefore, criminal law, in its wider sense, consists of both the substantive criminal law and the procedural (or
adjective) criminal law.
▪ Substantive criminal law defines offences and prescribes punishments for the same, while the procedural
criminal law is to administer the substantive law.
▪ The Indian Penal Code, 1860, together with the other penal laws like the Prevention of Food Adulteration Act,
Protection of Civil Rights Act, Dowry Prohibition Act, etc., constitute our substantive criminal law.
▪ Obviously, this substantive criminal law by its very nature, cannot be self-operative. A person committing an
offence is not automatically stigmatized and punished; nor would the offender be, generally speaking, interested
in confessing his guilt and receiving the sentence.
▪ It is for this reason that the procedural criminal law has been designed to look after the process of the
administration and enforcement of the substantive criminal law.
▪ In the absence of procedural law, the substantive criminal law would be almost worthless.
▪ Our law of criminal procedure is mainly contained in the Code of Criminal Procedure, 1973 which has come into
force from April 1, 1974.

▪ BASIC CONSIDERATIONS IN THE FORMULATION OF THE CODE OF 1973.—

While formulating the Code of Criminal Procedure, 1973, the following considerations were kept in view:
1. An accused person should get a fair trial in accordance with the accepted principles of natural justice;
2. Every effort should be made to avoid delay in investigation and trial which is harmful not only to the
individuals involved but also to society; and
3. The procedure should, to the utmost extent possible, ensure fair deal to the poorer sections of the
community.

TERRITORIAL EXTENT.
1. Short title, extent and commencement
1. This Act may be called the Code of Criminal Procedure, 1973.
2. It extends to the whole of India (except the State of Jammu and Kashmir) (now this portion has been
deleted by J&K reorganization Act 2019)
▪ Provided that the provisions of this Code,
▪ other than those relating to Chapters VIII, X and XI thereof, shall not apply-

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a. to the State of Nagaland,

b. to the tribal areas,

▪ But the concerned State Government may,

▪ by notification apply such provisions or any of them to the whole or part of the State of Nagaland or
such tribal areas, as the case may be, with such supplemental, incidental or consequential
modifications, as may be specified in the notification.
Explanation.-
▪ In this section, "tribal areas" means
▪ the territories which immediately before the 21st day of January, 1972, were included in the tribal
areas of Assam,
▪ as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those
within the local limits of the municipality of Shillong.

▪ Considering the social conditions prevailing in the State of Nagaland and the tribal areas mentioned above, it
has not been considered desirable, at least for the time being, to extend to these areas the sophisticated
provisions of the Criminal Procedure Code.
▪ These territories are having their own simple rules for the administration of criminal justice.
▪ According to the Supreme Court, since the Code is not in force in these areas, the procedure to be followed is
according to the spirit of the Code and not strictly according to the terms of its provisions.
▪ The Supreme Court has reiterated that the inapplicability of the provisions of the Cr.P.C. in the above areas is of
little consequence because in the context of Nagaland it has been held that even though the provisions of Cr.P.C.
are not applicable in certain districts of the State of Nagaland, it only means that the rules of the Cr.P.C. would
not apply but the authorities would be governed by the substance of these rules. [Mowu v. Supdt., Special Jail,
1972 SCC (Cri) 184, 189]
▪ It has also to satisfy the standard of fairness as is implicit in Article 21 of the Constitution. [Zarzoliana v. Govt. of
Mizoram, 1981 Cri LJ 1736, 1740 (Gau).]

▪ In the case of the State of Jammu and Kashmir, Parliament's power to legislate was limited because of the special
status given to that State by Article 370 of the Constitution.
▪ At present, as Parliament had no power to legislate for that State in respect of Criminal Procedure, the territorial
jurisdiction of the Code had not been extended to that part of India.
▪ But after, the J&K reorganization Act 2019, Cr,P.C. has been made applicable to Jammu and Kashmir as well.
Sec. 1(3) --- It shall come into force on the 1st day of April, 1974.

2. DEFINITIONS.

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▪ In this Code, unless the context otherwise requires, -

(a)
• Bailable offence" means an offence
• which is shown as bailable in the First Schedule, or
• which is made bailable by any other law for the time being in force:
• and "non-bailable offence" means any other offence.
Thus, a bailable offence is that—
1. which is mentioned in the First Schedule of the Criminal Procedure Code; or
2. which is made bailable by any other law for the time being in force.

▪ Bailable offences are less serious than non-bailable offences.

▪ In bailable offence bail is granted as a matter of course by the police officer or by the court.
▪ Non-bailable offence does not mean that bail can in no case be granted. It only means that bail can be
granted on the discretion of the court.
(b)
▪ "Charge" includes any head of charge when the charge contains more heads than one.
▪ A charge is the precise formulation of the specific accusation made against a person who is entitled to
know its nature at the earliest stage.
▪ It consists of a notification to the accused of the offence which he is alleged to have committed, and
which he is required to plead.
▪ The charge must state the offence with which the accused is charged.
▪ It is formulated generally after the inquiry into the case is over.
▪ It must be specific and precise.
▪ In a summary trial or summons case trial framing of formal charges is not necessary;
▪ but in warrant cases formal framing of the charges is necessary.
(c)
▪ "Cognizable offence" means an offence for which,
▪ and "cognizable case" means a case in which,
• a police officer may, in accordance with the First Schedule or under and other law
for the time being in force, arrest without warrant.
▪ In order to be a cognizable case, it would be enough if one or more of the offences are cognizable offences.

▪ There can be no case under the Code which is partly non-cognizable. (Vadlamudi Kutumba Rao, (1961) 2 Cr.
L.J. 605)
(d)
▪ "Complaint" means any allegation
▪ made orally or in writing to a Magistrate,

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▪ 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.
▪ A report made by a police officer in a case,
▪ which discloses, after investigation, the commission of a non-cognizable offence
• shall be deemed a complaint and
▪ the police officer by whom such report is made
• shall be deemed to be the complainant;
▪ A complaint in a criminal case is what a plaint is in a civil case.
▪ Requisites of a complaint:
▪ The following are the requisites of a complaint :—
1. It is an allegation which may be made orally or in writing. It may not set out the facts on which the accused is
to be charged. It must contain a statement of facts which are relied on as constituting the offence.
2. The allegation must be that some person known or unknown has committed an offence. It is not necessary
that a particular offence alleged to have been committed must be stated. It may not mention the particular
section of the statute under which the offence has been committed. But mentioning of a wrong section does
not vitiate the character of the complaint.
3. Complaint must be made to a Magistrate. A 'police officer' is not a magistrate and as such a petition or
information sent to a police officer is not a complaint.
4. It must be made with a view that the Magistrate should take action under the Code. A mere statement to a
Magistrate by way of information without any intention of asking him to take action is not a complaint.
5. It is not necessary that complaint should be made by the aggrieved person. It may be made by any person
aware of the offence. It is not necessary that the person making a complaint must have personal
knowledge of the facts constituting the offence.
▪ The word complaint has a very/wide meaning. No particular form is prescribed in which a complaint is to be
made.
▪ A complaint is constituted of the allegations of fact relating to the commission of an offence. Allegations which
do not amount to an offence would not be a complaint.
▪ An omission to mention the offence made out by the facts, or the mentioning of a wrong section of the Indian
Penal Code does neither vitiate the complaint nor affect the jurisdiction of the court to try a person
complained against for the offences which can be made out on the basis of the allegation in the complaint.
▪ A complaint may be sent by post or by a telegram.
(e) "High Court" means, -

i. In relation to any State, the High Court for that State;

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ii. In relation to a Union territory to which the jurisdiction of the High Court for a
State has been extended by law, that High Court;
iii. In relation to any other Union territory, the highest court of criminal appeal for
that territory other than the Supreme Court of India;
(f) "India" means the territories to which this Code extends;
(g)
▪ "Inquiry" means
▪ every inquiry, other than a trial,
▪ conducted under this Code by a Magistrate or court;
▪ Inquiry differs from trial. Trial is not defined in the Code.
▪ Trial was defined in the Code of 1872 but it has not been defined in the subsequent Codes of 1882, 1898 and
1973.
▪ Trial is a
▪ proceeding which involves examination and determination of a cause by a judicial tribunal
which has jurisdiction over it.
▪ It is a judicial proceeding which ends in conviction or acquittal of the accused.
▪ It was held in Alim and others 1982 Cr. L.J. 1264 (All)
▪ that all those proceedings before a Magistrate
▪ prior to the framing of a charge
▪ which do not result in conviction can be termed as inquiry.
▪ The proceedings under Section 209 of the Code are covered by the term inquiry.
▪ Swaroop Singh, 1976 Cr. LJ. 1655 (Raj).
▪ An inquiry preparatory to commitment of a case to the sessions under Section 209 is also
inquiry under this sub-section.
(h) "Investigation"
▪ includes all the proceedings under this Code
▪ for the collection of evidence
• conducted by a police officer or
• by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
▪ It has been held that the arrest and detention of a person for the purpose of investigation of a crime forms an
integral part of the process of investigation.
▪ Similarly examining witnesses and arranging raids for the purpose of dealing with a complaint by an Inspector
of Anti-Corruption Department also constitutes part of investigation.
▪ So also searches made for collection of evidence, and medical examination of the arrested person also forms
part of investigation.
▪ It was held in Manubhai Ratilal Patel Tr Ushaben v. State of Gujarat, (2013) 1 Cri.LJ. 160 (S.C.) that

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investigation is in exclusive domain of police. The Magistrate has no control on it.

▪
There are three stages in a criminal case:
1. Investigation
2. inquiry and
3. trial.
(i) "Judicial proceeding"
• includes any proceeding
▪ in the course of which
▪ evidence is or may be legally taken on oath;
Judicial proceeding includes
▪ the whole proceeding
▪ from the filing of the complaint until the decision of the Court.

▪ Under Section 202 of the Code an inquiry or investigation may be ordered, and such inquiry or
investigation is a part of judicial proceeding.
▪ The term "judicial proceeding" includes 'inquiry' and 'trial' but not 'investigation'. It also includes
▪ an inquiry before the issue of an order under Section 144,
▪ and a preliminary inquiry under Section 340 (old Section 476).
(j) "Local jurisdiction", in relation to a court or Magistrate, means
• the local area within which the Court or Magistrate may exercise all or any of its or his powers under this
Code
▪ and such local area may comprise
• the whole of the state, or
• any part of the State, as the State Government may, by notification, specify ;
▪ Section 2(j) has been amended to empower the State Government to define the local jurisdiction, as
extending to the whole of the State or any part thereof, in relation to the Special Judicial Magistrate, where
necessary.
(k) "Metropolitan area" means
• the area declared, or deemed to be declared,
under section 8, to be a metropolitan area;
(l) "Non-cognizable offence" means an offence for which, and
"non-cognizable case" means a case in which,
▪ a police officer has no authority to arrest without warrant;
▪ If the power of arrest without a warrant is limited to any particular class of police-officers that does not
prevent the offence being regarded as a cognizable offence.
▪ For example, in case of an offence under the Gambling Act only Deputy Superintendent of Police is

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given power to arrest. The offence is nevertheless cognizable.

▪ However, the power of arrest given to any police officer must not be conditional. It should be unqualified
power.
▪ If the power is conditional the offence would not be a cognizable one.
▪ For example, under the Opium Act a police officer may arrest without warrant if the accused does
not furnish the security required by the relevant section.
▪ The offence is, therefore, not a cognizable one.
(m) "Notification" means a notification published in the Official Gazette;
(n)
▪ "Offence" means any act 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 (1 of
1871);
Offence.—
▪ The term "offence" is more elaborately defined in Section 40 of the Indian Penal Code.
▪ A Special definition of "offence" is given in Section 39 of the Code.
▪ Sec. 39 Cr.P.C.---- “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.”
(o)
▪ "Officer in charge of a police station" includes,
▪ when the officer in charge of the police station is absent from the station-house or unable from
illness or other cause to perform his duties,
▪ the police officer present at the station-house who is next in rank to such officer
▪ and is above the rank of constable or,
▪ when, the State Government so directs, any other police officer so present;
(p) "Place" includes a house, building, tent, vehicle and vessel;
(q)
▪ "Pleader", when used with reference to any proceeding in any court, means
▪ a person authorized by or under any law for the time being in force,
▪ to practice in such court,
▪ and includes any other appointed
▪ with the permission of the court to act in such proceeding.

(r) "Police report" means a report forwarded by a police officer to a magistrate under sub-section (2) of section 173;
▪ A police report as defined in Section 2(r) is confined to a report by a police officer
▪ forwarded after completion of investigation and not earlier.
(s)
• "Police station" means

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▪ any post or place declared generally or specially by the state government, to be a police station,
▪ and includes any local area specified by the state government in this behalf;

• Where the boundary between two police station areas is declared or specified by the Government as
the midstream of a river, and that river changes its course, such change will automatically determine,
increase or decrease in the territorial jurisdiction under the police stations.
(t) "Prescribed" means prescribed by rules made under this code;
(u)
▪ "Public prosecutor" means
▪ any person appointed under section 24,
▪ and includes any person acting under the directions of a public prosecutor;
▪ A Public Prosecutor is an executive officer but in a sense he is an officer of the Court also. He is bound to
assist the Court with his fairly considered view and the Court is entitled to have the benefit of the fair
exercise of his function.
▪ It was held in T.A. Rajendra v. P.V. Ayyappan,1 1986 Cr. L.J. 1287 (Ker). that an Advocate General who is asked
by the Governor of a State to represent in a Sessions Court will not be Public Prosecutor unless he is
appointed as such Public Prosecutor under Section 24 of the Code.
(v) "Sub-division" means a sub-division of a district;

(w) "Summons - case" means relating to an offence, and not being a warrant-case;
(wa)
▪ “Victim” means a person
▪ who has suffered any loss or injury
▪ caused by reason of the act or omission for which the accused person has been charged
▪ and the expression “victim” includes his or her guardian or legal heir.”
Above definition was added by by 2009 Amendment.
(x) "Warrant-case" means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years;
▪ Under the old Code warrant-cases covered offences punishable with imprisonment for a term exceeding one
year; in the new Code it applies to offences punishable with imprisonment for a term exceeding two years.
▪ Thus a case assumes the character of a 'summons-case' or a 'warrant-case' according to the nature and
measure of punishment which the law attaches to the offence. However, the division is only for the purpose
of a procedure for trial.
(y)
▪ Words and expression used herein

1 1986 Cr. L.J. 1287 (Ker).

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▪ and not defined but defined in the Indian penal code (45 of 1860)
▪ have the meanings respectively assigned to them in that code.

S.3 CONSTRUCTION OF REFERENCES.—

1. In this Code—
a. any reference, without any qualifying words, to a Magistrate shall be construed, unless the context
otherwise requires,—
i. in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;
ii. in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
b. any reference to a Magistrate of the second class shall, in relation to an area outside a metropolitan
area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a
metropolitan area, as a reference to a Metropolitan Magistrate;
c. any reference to a Magistrate of the first class shall,—
i. in relation to a metropolitan area, be construed as a reference to a Metropolitan Magistrate
exercising jurisdiction in that area,
ii. in relation to any other area, be construed as a reference to a Judicial Magistrate of the first class
exercising jurisdiction in that area;
d. any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a
reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area.
2. In this Code, unless the context otherwise requires,
▪ any reference to the Court of a Judicial Magistrate shall,
▪ in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan
Magistrate for that area.
3. Unless the context otherwise requires, any reference in any enactment passed before the commencement of this
Code,—
a. to a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first
class;
b. to a Magistrate of the second class or of the third class, shall be construed as a reference to a Judicial
Magistrate of the second class;

c. to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively,

to a Metropolitan Magistrate or the Chief Metropolitan Magistrate;
d. to any area which is included in a metropolitan area, as a reference to such metropolitan area, and any
reference to a Magistrate of the first class or of the second class in relation to such area, shall be
construed as a reference to the Metropolitan Magistrate exercising jurisdiction in such area.

4. Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters—

a. which involve the appreciation or sifting of b. which are administrative or executive in

evidence or the formulation of any decision nature,

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which exposes any person to any punishment
or penalty or detention in custody pending
investigation, inquiry or trial or would have
the effect of sending him for trial before any
Court, they shall,
such as, the granting of a licence, the
suspension or cancellation of a licence,
sanctioning a prosecution or withdrawing
from a prosecution,

subject to the provisions of this Code, be they shall, subject as aforesaid, be

exercisable by a Judicial Magistrate; or exercisable by an Executive Magistrate.

SCOPE OF THE APPLICABILITY OF THE CRIMINAL PROCEDURE CODE —

▪ Generally speaking, the Code of Criminal Procedure ▪ However, the rule is not unduly rigid.
is applicable in respect of the investigation, inquiry or ▪ If the exigencies of the subject-matter or of the local
trial of every offence under the substantive criminal conditions require a special procedure to be allowed
law i.e. in respect of certain offences,
▪ whether such offence is punishable under ▪ the Code makes room for such special law
the Indian Penal Code or under any special and procedure and gives it precedence over
or local law. the normal procedure provided by the Code
of Criminal Procedure, 1973.
▪ In this regard Sections 4 and 5 provides as follows:
4. TRIAL OF OFFENCES UNDER THE INDIAN PENAL CODE AND OTHER LAWS.—
2. All offences under any other law shall be
1. All offences under the Indian Penal Code (45 of
investigated, inquired into, tried, and otherwise
1860)
dealt with
▪ shall be investigated, inquired into, tried, and
▪ according to the same provisions,
otherwise dealt with
▪ but subject to any enactment for the
▪ according to the provisions hereinafter
time being in force regulating the
contained.
manner or place of investigating,
inquiring into, trying or otherwise dealing
with such offences.

5. SAVING.—
▪ Nothing contained in this Code shall,
▪ in the absence of a specific provision to the contrary,
▪ affect any special or local law for the time being in force, or
▪ any special jurisdiction or power conferred, or
▪ any special form of procedure prescribed, by any other law for the time being in force.

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▪ When disciplinary proceedings were taken against a Government servant in respect of an offence, it was
attempted to apply the provisions of the Criminal Procedure Code to such Departmental Inquiry.
▪ It was however held that the words "otherwise dealt with" in Section 4 refer to
▪ dealings with the offences under the Code
▪ which are apart from investigation, inquiry or trial of the offence,
▪ and not to such disciplinary proceedings. [R.P. Kapur v. Pratap Singh Kairon, 1964 (1) Cri LJ
224 (SC)
▪ (The decision was under S. 5 of the old Code which corresponds to S. 4 of the Code of
1973).]

▪ The Code of Criminal Procedure does not apply to contempt of court proceedings as contempt of court is
not an offence within Section 4(2). [State v. Padma Kant Malviya, AIR 1953 All 523 (FB).]

▪ The jurisdiction given to ordinary criminal courts under Section 4(1) would be excluded
▪ only when a special Act applies
▪ and the jurisdiction of the regular courts to try particular cases under the Indian Penal Code is
specifically excluded under that Act
▪ by vesting such jurisdiction exclusively in the Special Tribunals established under the Act.
[Bhim Sen v. State of U.P., AIR 1955 SC 435.]

▪ When no special or different procedure is provided by the Special Act, the procedure provided by the Code is
to be followed.
▪ For example:
▪ For investigating or inquiring into an offence under the Bombay Prevention of Gambling Act, 1887 a
special procedure has been provided by the Act.
▪ In case of such offence, Section 4(2) is applicable and the special procedure prescribed by the Act
would prevail over the normal procedure provided by the Code.

▪ The Juvenile Justice (Care and Protection of Children) Act, 2000 prescribes special procedure while dealing
with offences committed by delinquent children. Such special procedure, according to Section 5, would
prevail over the procedure prescribed by the Code of Criminal Procedure.

▪ The Supreme Court has ruled that Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985,
dealing with grant of bail, being a special enactment, general provision of Section 439 of the Code has to be
read subject to Section 37 in view of Section 4 of the Code.
▪ [Narotic Control Bureau v. Kishan Lai, (1991) 1 SCC 705:]

Code how far exhaustive.—

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▪ The Code has obviously tried to make itself exhaustive and complete in every respect; and it has generally
succeeded in this attempt.
▪ However, if the court finds that the Code has not made specific provision to meet the exigencies of any situation,
the court has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may
require.
▪ It has however been declared by the Supreme Court that the subordinate courts do not have any inherent power.
[ A.S. Gaurava v. S. N. Thakur, 1986 SCC (Cri) 249: (1986) 2 SCC 709.]

▪ The High Court has inherent powers and that has been given partial statutory recognition by enacting Section
482 which says:
o Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court
▪ to make such orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any court or otherwise to secure the ends of justice.

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