DR.

ABSARUL HASAN KIDWAI

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE - 1
B.A.LL.B. (HONS) VIIIth SEMESTER

UNIT-I:

FORMATION AND JURISDICTION OF CRIMINAL COURT

A. Criminal Procedure Code & Fair Trial – Rational:

Introduction
The Fair Trial is one of the corner stones of a just society. Without fair trials, innocent
people are convicted and the rule of law and public faith in the justice system collapses.
It is a key role of any Government to maintain Law and Order on behalf of the whole
society. In a Democratic society, even the rights of the accused are sacrosanct. The
rational of ‘fair trial’ means that people can be sure that process will be fair and certain,
it prevents Government from abusing their powers. In Zahira Habibullah Sheikh and
Ors. Vs. State of Gujarat and Ors, reported in (2006) 3 SCC 374 at 395. The Supreme
Court of India observed “each one has an inbuilt right to be dealt with fairly in a
criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the
victim and to society. Fair trial means a trial in which bias or prejudice for or against
the accused, the witness or the cause which is being tried, is eliminated.”

Principles of Fair Trial

 The system adopted by the Criminal Procedure Code, 1973 is the adversary
system based on the accusatorial method. In adversarial system responsibility
for the production of evidence is placed on the prosecution with the judge acting
as a neutral referee.
 If the fair trial envisaged under the Code is not imparted to the parties and court
has reasons to believe that prosecuting agency or prosecutor is not acting in the
requisite manner the court exercise its power under Section 311 of the Criminal
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Procedure Code or under Section 165 of the Indian Evidence Act, 1872 to call
in for the material witness and procure the relevant documents so sub serve the
cause of justice. [Himanshu Singh Sabharwal Vs. State of M.P. Ors, reported
in MANU/SC/1193/2008]
 The basic principle of the right to a fair trial is that proceedings in any criminal
case are to be conducted by a competent, independent and impartial court. In a
criminal trial, as the state is the prosecuting party and the police is also an
agency of the state, it is important that the judiciary is unchained of all suspicion
of executive influence and control, direct or indirect.
 The primary principle is that no man shall be judge in his own cause. Section
479 of the Criminal Procedure Code, prohibits trial of a case by a judge or
magistrate in which he is a party or otherwise personally interested.
 For ensuring fair trial, it has to be checked whether there exists a circumstance
according to which a litigant could reasonably apprehend that a bias attributable
to a judicial officer must have operated against him in the final decision of the
case and not that if a bias could have affected the judgement. [Shyam Singh Vs.
State of Rajasthan reported in 1973 Crl. LJ 441, 443 (Raj)]

Presumption of Innocence

Every criminal trial begins with the presumption of innocence in favour of the
accused. The burden of proving the guilt of the accused is upon the prosecution and
unless it relieves itself of that burden, the courts cannot record a finding of the guilt
of the accused. This presumption is seen to flow from the Latin legal principle ei
incumbit probatio qui dicit, non qui negat, that is, the burden of proof rests on who
asserts, not on who denies.

State of U.P. Vs. Naresh and Ors reported in (2001) 4 SCC 324, the Supreme Court
observed “every accused is assumed to be innocent unless his guilt is proved. The
presumption of innocence is a human right subject to the statutory exceptions.
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Prohibition on Double Jeopardy

The concept of double jeopardy is based on the doctrine of 'autrefois acquit' and
'autrefois convict' which mean that if a person is tried and acquitted or convicted of
an offence he cannot be tried again for the same offence or on the same facts for
any other offence. This clause embodies the common law rule of nemo debet vis
vexari which means that no man should be put twice in peril for the same offence.
Section 300 of the Code of Criminal Procedure provides that persons once
convicted or acquitted not to be tried for the same offence or on the same facts for
any other offence.

Knowledge of the Accusation

Fair Trial requires that the accused person is given adequate opportunity to defend
himself. But, this opportunity will have no meaning if the accused person is not
informed of the accusation against him. The Criminal Procedure Code therefore
provides in Section 228, 240, 246, 251 in plain words that when an accused person
is brought before the Court for trial, the particulars of the offence of which he is
accused shall be stated to him.

In the determination of any criminal charge against him/her everyone shall be

entitled, in full equality “to be informed promptly and in detail in a language which
he understands of the nature and cause of the charge against him.

The information must also be provided to the accused in a language which s/he
understands, meaning that translation is mandated and that its form, oral or written,
will depend on the manner in which the “charge” is initially conveyed.
In case of serious offences, the court is required to frame in writing a formal charge
and then read and explain the charge to the accused person. A charge is not an
accusation in abstract, but a concrete accusation of an offence alleged to have been
committed by a person. The right to have precise and specific accusation is
contained in section 211 Cr.P.C.
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In the determination of any criminal charge against him or her everyone is entitled
“To have adequate time and facilities for the preparation of his defense and to
communicate with counsel of his own choosing”.

Right to Open Trial

Fair Trial also requires public hearing in an open court. The right to a public hearing
means that the hearing should as a rule is conducted orally and publicly, without a
specific request by the parties to that effect.

Section 327 of the Criminal Procedure Code makes provision for open courts for
public hearing but it also gives discretion to the Presiding judge or magistrate that
if he thinks fit, he can deny the access of the public generally or any particular
person to the court during disclosure of indecent matter or when there is likelihood
of a disturbance or for any other reasonable cause.

In the case of Naresh Sridhar Mirajkar Vs. State of Maharashtra reported in AIR
1967 SC 1, the apex court observed that the right to open trial must not be denied
except in exceptional circumstances.

Right to Free Legal Aid

The requirement of fair trial involves two things: a) an opportunity to the accused
to secure a counsel of his own choice, and b) the duty of the state to provide a
counsel to the accused in certain cases. The Law Commission of India in its 14th
Report has mentioned that free legal aid to persons of limited means is a service
which a Welfare State owes to it citizens.

The right to be defended by a legal practitioner, flowing from Article 22(1) of the
Constitution has further been fortified by the introduction of the Directive
Principles of State Policy embodied in Article 39 A of the Constitution by the 42nd
Amendment Act of 1976 and enactment of sub-section 1 of Section 304 of the Code
of Criminal Procedure. Legal assistance to a poor person facing trial whose life and
DR. ABSARUL HASAN KIDWAI

personal liberty is in jeopardy is mandated not only by the Constitution and the
Code of Criminal Procedure but also by International Covenants and Human Rights
Declarations.

In Khatri Vs. State of Bihar reported in (1981) 2 SCC 493, the court held that the
accused is entitled to free legal services not only at the stage of trial but also when
first produced before the Magistrate and also when remanded.

Speedy Trial

Speedy trial is necessary to gain the confidence of the public in judiciary. Delayed
justice leads to unnecessary harassment. Sec.309(1) provides “in every inquiry or
trial, the proceedings shall be held as expeditiously as possible, and in particular,
when the examination of witnesses has once begun, the same shall be continued
from day to day until all the witnesses in attendance have been examined, unless
the Court finds the adjournment of the same beyond the following day to be
necessary for reasons to be recorded.”

Protection against Illegal Arrest

Section 50 provides that any person arrested without warrant shall immediately be
informed of the grounds of his arrest. The duty of the police when they arrest
without warrant is to be quick to see the possibility of crime, but they ought to be
anxious to avoid mistaking the innocent for the guilty.

In Pranab Chatterjee Vs. State of Bihar reported in (1970) 3 SCC 926, the court
held that Section 50 is mandatory. If particulars of offence are not communicated
to an arrested person, his arrest and detention are illegal.

Proceedings in the Presence of the Accused

For the conduct of a fair trial, it is necessary that all proceedings related to the case
should take place in the presence of the accused or his counsel. The underlying
DR. ABSARUL HASAN KIDWAI

principle behind this is that in a criminal trial the court should not proceed ex parte
against the accused person.

The Courts should insist upon the appearance of the accused only when it is in his
interest to appear or when the court feels that his presence is necessary for effective
disposal of the case. Court should see that undue harassment is not caused to the
accused appearing before them. Section 273 of the Criminal Procedure Code
provides that all evidence taken in the course of the trial shall be taken in the
presence of the accused or if the personal attendance of the accused is dispensed
with then the evidence shall be taken in the presence of his pleader.

Right to Bail

By virtue of Section 436 the accused can claim bail as a matter of right in cases
which have been shown as bailable offences in the First schedule to the Code. Bail
is basically release from restraint, more particularly, release from custody of the
Police. An order of bail gives back to the accused freedom of his movement on
condition that he will appear to take his trial.

But bail under Section 389(1) after conviction is not a matter of right whether the
offence is bailable or non-bailable reported in Shambhu Vs. State, AIR 1956 AII
633.

Right to File Appeal

“Everyone convicted of a crime shall have the right to his conviction and sentence
being reviewed by a higher tribunal according to law”.

Section 389(1) of Cr.P.C empowers the appellate court to suspend execution of

sentence, or when the convicted person in confinement, to grant bail pending any
appeal to it. Court need not give notice to the public prosecutor before suspending
sentence or releasing on bail. Existence of an appeal is a condition precedent for
granting bail. Bail to a convicted person is not a matter of right irrespective of
DR. ABSARUL HASAN KIDWAI

whether the offence is bailable or nonbailable and should be allowed only when
after reading the judgment and hearing the accused it is considered justified.

Conclusion
The judge is not to draw any inferences against the accused from the fact that he
has been charged with a crime. He must decide the case solely on the evidence
presented during the trial. It is well settled that while dealing with a judgment of
acquittal, an appellate court must consider the entire evidence on record so as to
arrive at a finding as to whether the views of the trial court were perverse or
otherwise unsustainable.

“Equality, Justice and Liberty” is the trinity of fair trial recognized in the
administration of justice of India where the affluent and the “lowly and lost” have
the equality of access to justice in the administration of justice in general and the
criminal justice system in particular. This fundamental principle of fair trial is the
backdrop of the International Covenants, and enjoined in the Constitution of India
as well as the criminal laws devising the criminal justice system of India.
DR. ABSARUL HASAN KIDWAI

B. Constitution of Criminal Court – Power & Functions (Sec. 6 to 29)

Classes of Courts
Apart from the Supreme Court and High Courts, the following criminal courts have
been described under section 6 of Criminal Procedure Code, 1973:
1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area Metropolitan
Magistrates
3. Judicial Magistrate of second class; and
4. Executive Magistrates

Section 7(1) of Criminal Procedure Code 1973 states that “The State Government shall
establish a Court of Session for every session’s division. In the hierarchy Sessions court
is followed by Judicial Magistrate Class I and then judicial magistrate of Class II. In
metropolitan areas, it is followed by Chief Metropolitan Magistrate and metropolitan
magistrate. An Executive Magistrate is one of the classes of courts only while
performing judicial functions.

The Sessions Judge

Section 9 of the CrPC talks about the establishment of the Sessions Court. The State
Government establishes the Sessions Court which has to be presided by a Judge
appointed by the High Court. The High Court appoints Additional as well as Assistant
Sessions Judges. The Court of Sessions ordinarily sits at such place or places as
ordered by the High Court.
But in any particular case, if the Court of Session is of the opinion that it will have to
cater to the convenience of the parties and witnesses, it shall preside its sittings at any
other place, after the consent of the prosecution and the accused.
According to section 10 of the CrPC, the assistant sessions judges are answerable to
the sessions judge.
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Courts of Judicial Magistrate

According to section 11 of the CrPC, in every district, which is not a metropolitan area,
there shall be as many as Judicial Magistrates of first class and of second class. The
presiding officers shall be appointed by the High Courts. Every Judicial
Magistrate shall be subordinate to the Sessions Judge.
Chief Judicial Magistrate
Section 12 of the CrPC except for the Metropolitan area, the Judicial Magistrate of
the first class shall be appointed as the Chief Judicial Magistrate. Only the Judicial
Magistrate of First Class may be designated as Additional Chief Judicial Magistrate.
Metropolitan Magistrate
According to section 16 of CrPC, they are established in Metropolitan areas. The
High Courts have the power to appoint the presiding officers. The Metropolitan
Magistrate shall be appointed as the Chief Metropolitan Magistrate. The Metropolitan
Magistrate shall work under the instructions of the Sessions Judge.
Executive Magistrate
According to section 20 in every district and in every metropolitan area, an Executive
Magistrate shall be appointed by the State Government and one of them becomes
District Magistrate.

Power of Courts to Try Offences

Chapter III of CrPC deals with power of Courts. One of such power is to try offences.
Offences are divided into two categories:
1. those under the Indian Penal Code; and
2. those under any other law.
According to Section 26, any offence under the Indian Penal Code, 1860 may be tried
by the High Court or the Court of Session or any other Court by which such offence is
shown in the First Schedule to be triable, whereas any offence under any other law shall
be tried by the Court mentioned in that law and if not mentioned, it may be tried by the
High Court or any other Court by which such offence is shown in the First Schedule to
be triable. This Section is a general Section and is subject to the other provisions of the
Code.
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Power of the Court to pass sentences

Sentences which may be passed by the criminal have been mentioned under section 28
& 29 of the criminal procedure code.
1. Sentences which High Courts and Sessions Judges may pass
According to Section 28, a High Court may pass any sentence authorised by law. A
Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law,
but any sentence of death passed by any such judge shall be subject to confirmation by
the High Court.
An Assistant Sessions Judge may pass any sentence authorised by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding
ten years. Thus, Section 26 of the Code enumerates the types of Courts in which
different offences can be tried and then under Section 28, it spells out the limits of
sentences which such Courts are authorised to pass.

2. Sentences which Magistrates may pass

Section 29 lays down the quantum of sentence which different categories of
Magistrates are empowered to impose. The powers of individual categories of
Magistrates to pass the sentence are as under:
 The Court of a Chief Judicial Magistrate may pass any sentence authorised by law
except a sentence of death or of imprisonment for life or of imprisonment for a term
exceeding seven years.
 A Magistrate of the first class may pass a sentence of imprisonment for a term not
exceeding three years or of a fine not exceeding five thousand rupees, or of both.
 A Magistrate of the second class may pass a sentence of imprisonment for a term
not exceeding one year, or of fine not exceeding one thousand rupees, or of both.
A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a
Magistrate of the First class.
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C. Jurisdiction of Criminal Courts – (Sec. 177 to 189)

Original Place of Inquiry and Trial

Section 177 This provision of the Code provides that the Court under whose
jurisdiction, i.e. within whose territorial limits the offence has been submitted just has
the power to ask into and attempt such case.
Section 178 arrangements with the circumstances where the offence has been
submitted in more than one spot. It provides that at the point when the spot of
commission of the offence is questionable in light of the fact that it has been submitted
in a few spots or where an offence is somewhat dedicated in one neighbourhood the
rest in another region or at the point when the offence includes a few demonstrations,
submitted in various neighbourhoods;
On the off chance that any of the above conditions are satisfied, at that point, such
offence might be asked into or attempted by a Court having jurisdiction over any of
such neighbourhood.
Section 179 underlines that reality that when a demonstration is an offence in view of
anything which has been done and as a result which has followed, the said offence
might be asked into or attempted by a court of competent jurisdiction.
Section 180 arrangements with the spot of trial when the demonstration submitted is
an offence since it is identified with some other offence. As indicated by it the offence
which has been submitted first must be asked into or attempted, when two acts are done
regarding one another and both are offences, by the court under whose jurisdiction both
of the demonstrations have been submitted. In every single such arrangement, the
accentuation is consistently on where the offence has been submitted, to determine the
jurisdiction.

The Jurisdiction in Specific Offences

In any case, section 181 indicates conditions in the event of specific offences. As
indicated by section 181(1), the trial can likewise be started where the charged is found,
other than where the offence was submitted. Section 181(1) discusses the offences,
when not submitted in a solitary spot. It manages the accompanying cases:
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 Thug or murder submitted while playing out the demonstration of hooligan,

dacoity, or dacoity with murder and so forth where the offence is submitted or
where the denounced is found.
 Kidnapping or abduction of an individual the spot from where the individual was
grabbed/kidnapped or where the individual was hidden or passed on or kept.
 Robbery, extortion or theft – the Court where the offence has been submitted or
where the taken property is controlled, gotten or conveyed, has the jurisdiction to
attempt such a case.
 Criminal misappropriation or criminal breach of trust – where the offence has been
carried out or where any piece of the property which is the topic of the offence has
been gotten or held, required to be returned or represented, by the blamed.

Jurisdiction when Offense Committed by Letters/Post

Section 182 arrangements with offences submitted by letters and so on. Under this
section, if any offence incorporates tricking, if the injured individual has been
hoodwinked by methods for letters or media transmission messages, it will be
investigated by the Court under whose nearby jurisdiction such letters or messages have
been sent or got; and under the neighbourhood jurisdiction of the Court in which the
property has been conveyed by the individual misled or has been gotten by the charged
individual.

Jurisdiction when Offense Committed during a Voyage

Section 183 arrangements with offences which have been submitted during adventure
or journey. At the point when an individual submits an offence, during venture or
against an individual who is voyaging, or the thing in regard of which, the offence has
been submitted is at the appropriate time of its adventure or journey, the offence must
be asked into or tired by a Court through or into whose neighbourhood jurisdiction that
individual or thing has gone, during the adventure.

Jurisdiction for Offenses Jointly Triable

The spot of trial for offences which are triable together comprises of two conditions.
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 At the point when an individual submits offences, to such an extent that he might
be accused of, attempted at one trial for, each such offence as per the arrangements
of section 219, section 220 or section 221.
 At the point when the offences or offences have been submitted by a few people,
in a way that the Court may charge and attempt them together, as per the
arrangements of section 223.

The jurisdiction in Other Cases

Section 185 arrangements with the intensity of the State Government, as indicated by
which the legislature can coordinate that any cases or class of cases which have been
submitted for trial in any region, might be attempted in a sessions court.

It needs to guarantee that such heading isn’t conflicting with any of the bearings which
have been as of now given by some other Superior Court, according to the Constitution,
or as referenced under the Code of Criminal Procedure or under some other law for the
present in power.

Section 186 tends to the circumstance wherein the awareness of a specific offence has
been taken by at least two courts and perplexity emerges concerning which of the
Courts will ask into or attempt that offence, in such a case, just the High Courts have
the position to determine the disarray. The criteria for settling such issues are as per the
following:

 In the event that a similar High Court administers the courts in question, at that
point by that High Court.

 In the event that a similar High Court doesn’t oversee the courts in question, at that
point, by the High Court which initially initiated the procedures as a re-appraising
criminal court. From that point, the various procedures in regard to that offence will
be stopped.

Section 187 states the intensity of a Magistrate to give summons or warrant for offences
which have been submitted past his neighbourhood jurisdiction. In such a circumstance
DR. ABSARUL HASAN KIDWAI

the Magistrate has the power to request such an individual to be created before him and
afterwards send him to the Magistrate of able jurisdiction.

Jurisdiction when Offense Committed Outside India

The conditions identified with the offences when submitted outside the domain of India
have been managed under section 188. As per this section, when an offence is
submitted outside India-

 by a resident of India, regardless of whether on the high oceans or somewhere else

 by an individual, not being such resident, on any ship or airship enrolled in India.

Such an individual might be treated in regard of such offence as though it had been
submitted at wherever inside India and at such a spot, where he might be found. The
stipulation to this section determines that no such offence will be asked into or
attempted in India without the past approval from the Central Government.

The most significant factor in the previously mentioned arrangement is where the
offence has been submitted. Section 188 explicitly manages the situation when the
offence is submitted outside India. These offences must be esteemed to have been
submitted in India, whenever submitted by an Indian resident, in high oceans or in some
other spot.

At the point when the arrangements of Section 188 are relevant, at that point the Central
Government may, in the event that it regards fit, direct that the duplicates of affidavits
or displays given to a legal official or before a strategic or consular delegate of India in
or for that domain will be gotten as proof by the Court holding such request or trial
regardless in which such Court may give a commission for accepting proof with regards
to the issues to which such statements or shows related.

Section 188 and Section 189 ought to be perused together. They continue on the
premise that a criminal is in India and can be found anyplace in India. The Court needs
to discover the blamed and the seeing for the denounced has as done where the charged
shows up.
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It is obvious from the above section that the denounced can’t be found by a minor
protest or by the Police. Further, it is by outlandish for the casualty of an offence
submitted outside India, to visit India and attempt to determine the area of the
denounced and afterwards approach the court. The parity of comfort is higher on such
an injured individual. Hence, all such focuses have been considered while drafting
Section 188 and Section 189 of the Code of Criminal Procedure.
The said unfortunate casualty has been vested with the privilege to move toward any
Court in India as indicated by his comfort and document a case in regard to the offence
submitted upon him by an Indian abroad.

On account of Reg v. Benito Lopez[1858 Cr LC 431], the issue identified with the
jurisdiction of English Courts for the offences submitted on the high oceans by
outsiders who are going in England borne ships was addressed. It was held that the
nation which attempted the blamed turned out poorly its jurisdiction. The choice
featured the significant rule of International Law that an individual is at risk to be
rebuffed of every single such offence, which he has submitted independent of where it
is submitted.