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 Toc

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 CONTENTS

Chapter 1

Introduction

Q Whether Code is exhaustive or not? 2

Q What do you understand by the expression "Procedure established 2

by law" as mentioned in Article 21 of the Constitution of India?

Q What measures are provided by the Code to secure greater benefit 3

to the accused?

Q Whether the Code is an adjective or a procedural law? 3

¨ Definitions 4

(A) Complaint 4

Q What is 'complaint'? 4

• Essentials of Complaint 4

(B) Offence

Q Define the word 'offence' as given under the Code? 4

(C) Cognizable and Non-cognizable offences 5

Q What are cognizable and non-cognizable offences? 5

(D) Inquiry 5

Q Define the word 'inquiry' as provided under the Code? 5

(E) Investigation 6

(F) Charge 6

Q What is charge? 6

(G) Judicial proceeding 6

Q What do you understand by the term 'Judicial Proceeding'? 6

(H) Officer-in-charge of a police station 6

(I) Trial 6

(J) Remand - Police and Judicial 7

Q What does 'Remand' mean? 7

Chapter 2

RIGHTS OF AN ARRESTED PERSON

Q What are the rights of an arrested person under Cr PC, 1973? 8

¨ Arrest of persons 8

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 ¨ Arrest without warrant 9

• When police may arrest without warrant 9

• Arrest on refusal to give name and residence 9

Q Can a person who refuses to give his name and details of residence 9
be arrested?

• Arrest without a warrant by a police officer in a non-cognizable 10

case

Q When a person may be arrested without warrant? 10

• Arrest by private person 10

Q When private individual(s) may arrest a person? 10

• Arrest by Magistrate 11

¨ Warrant of Arrest 11

• Form of warrant of arrest 11

Q What are the requirements of form of warrant of arrest? 11

• Essential requisites of a warrant 12

Q What are the essential requisites of a warrant? 12

• How long does warrant remain in force? 12

• Period of detention 12

Q Ca n a person in a police station be detained for more than 24 12

hours?

¨ Rights of an arrested person 12

• Guidelines for arrest and detention 18

Q Discuss the charter of rights of an arrested person to safeguard the 18

interest of the arrestee laid down in D.K. Basu case by the Supreme
Court.

• Joginder Kumar Case 19

Chapter 3

INFORMATION TO POLICE AND THEIR POWERS TO INVESTIGATE

¨ First Information Report (FIR) 21

Q Explain the expression "First Information Report" 22

• Information in cognizable offence 22

• Object of FIR 23

• Evidentiary value of FIR 23

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 Q What is the evidentiary value of FIR? 23
• Delay in lodging FIR 23

Q Whether delay in lodging FIR affects the case? 23

• Signature of the informant on FIR 24

• Whether statement to police is protected 25

¨ Information as to non-cognizable cases 25

• Difference between sections 154 and 155 of Cr PC 25

Q In what way section 154 Cr PC is different from section 155 Cr PC? 25

• Statements made to the police under sections 154 and 155 Cr PC 26

cannot be used as evidence

¨ Case Law 26

• T.T. Antony Case 26

• Observation and decision of the Supreme Court 26

¨ Investigation 28

Q P, an officer in charge of a police station receives a telephone call 28

that a prostitute has bought a minor girl for purpose of prostitution
in a red light area within the limits of his police station. The
information relates to the commission of a cognizable offence.
Describe briefly the provisions of the Cr PC, 1973 relating to
investigation by police in this case. When does 'Investigation'
begin? Discuss the procedure for investigating a cognizable offence.

• Investigation of non-cognizable offence 29

• Accused has no right to participate 29

• Irregularity in the order granting permission to investigate, curable 29

• Irregularity in investigation, curable 29

• Investigation of cognizable offence 29

• Irregularities in investigation: effect of 30

• Magistrate may direct investigation 30

Q Can a Magistrate direct investigation? 30

• Alternatives Magistrate can choose to take cognizance 31

• Procedure of investigation 31

Q Discuss the Procedure of investigation under the code. 32

• Object of investigation 33

• Difference between section 154 and section 157 Cr PC 33

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 • Delegation and withdrawal of power of investigation 34

• Power to hold investigation or preliminary inquiry 34

• Word 'direct': meaning of 34

• Preliminary inquiry: meaning of 34

• Examination of witnesses by the police 35

Q Whether an investigating officer can examine a witness of a case? 35

• Expression 'any person': meaning of 35

• Statement recorded under this section is not substantive evidence 35

• Privileges of persons examined by the police 36

Q What are the privileges of persons examined by the police? 36

• Mode of recording answer 36

• Use of statements in evidence 36

• Word 'statement': meaning of 37

• Medical tests 37

• Evidentiary value of statement 37

Q What is the evidentiary value of the statement made by any person 37

to an investigating officer?

• Recording of confessions and statements 38

Q What is the procedure of recording of confession? 38

• Distinc tion between recording of statements of accused and of 39

witnesses

• Search by police officer 39

• Conditions imposed under this section 40

• Whether search ultra vires the Constitution? 41

¨ Case laws 41

• Shyam Lal Case 41

• Observations of the Supreme Court 42

• Decision 42

• Nazir Ahmed Case 43

• Decision by the Privy Council 43

• Tehsildar Singh Case 44

• Contentions of the parties 44

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 • Decision 45
• Abhinandan Jha Case 45

• Issue 46

• Decision by the Supreme Court 46

• Madhu Bala Case 46

• Decision of the Supreme Court 47

Chapter 4

COMPLAINTS TO MAGISTRATES

• 'Complaint': Meaning of 48

• Essential ingredients of complaints 48

¨ Examination of complaint 49

• Purpose of examination 49

• "Magistrate taking cognizance": Meaning of 49

Q W h a t is the meaning of the expression "Magistrate taking 49

cognizance"?

• Meaning of word 'may' in the expression 'may take cognizance' 50

• Complainant: meaning of 50

• Period of limitation in filing a complaint 50

¨ Competency of Magistrate 50

• What should a Magistrate do when he is not competent? 51

¨ Postponement of issue of process 51

Q When can a Magistrate postpone the issue of process against the 51

accused?

• What Magistrate cannot do under this section 52

• Distinction between 'investigation' under sections 156(3) and 202 52

• Issue of process: Scope 52

• Who may make an 'investigation'? 53

• Term "sufficient grounds": meaning of 53

¨ Dismissal of Complaint 53

• Section 203: Scope of 53

Q Discuss the scope of section 203 of Cr PC? 53

• Magistrate must comply with sections 200 and 202 54

• No application of section 203 after issuance of process 54

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 • Grounds of dismissal 54

Q Name the factors which a Magistrate shall take into consideration 55

while discussing the complaint.

• Can fresh complaint can be entertained after dismissal? 55

Chapter 5

CHARGE

Q What is the importance of 'charge' in a criminal trial? 56

¨ Trial for more than one offence 60

Q Ho w the court has to proceed for the trial for more than one 60
offence?

• Applicability of section 220 60

• When nature of offence is doubtful 60

• What persons may be charged jointly 61

Q Discuss the set of persons who may be charged jointly? 61

• Withdrawal of certain charges 62

Chapter 6

TRIAL

Q What do you mean by word 'trial' within the meaning of the Code? 63

¨ Kinds of trial 64

Q Discuss the various kinds of trial? 64

• Summary trials 64

• Regular trial 64

• Trial in-Camera 64

¨ Conduct of trial 65

Q How a criminal trial has to be conducted? 65

• Opportunity to defend 65

¨ Separation of Executive and Judiciary 65

¨ Provision for legal Aid (Sections 303 and 304 Cr PC Articles 21 and 66
39A of the Constitution)

Q Do you think that legal aid to the needy person is an important tool 66
to achieve the goal of fair trial? Critically examine

• Role of judges 66

• Place of trial 67

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 • Supply of all relevant documents to the accused 67

• Joinder of charges 67

• Proceedings in the presence of accused 67

• Right to Cross-examine the witnesses 68

• Benefit of doubt 68

• Speedy trial 68

• Rule against 'Double jeopardy' 68

¨ Trial of Summons and Warrant Cases 68

• A. the cases instituted on a police report 69

Q Discuss briefly the trial of summons and warrant cases? Also discuss 70
the differences between the two?

• B. Cases instituted otherwise than on Police Report 70

¨ Trial of Summons cases by magistrate 72

Chapter 7

BAIL

Q Discuss the concept of 'Bail'? 75

• Bail and personal liberty 75

Q Examine the idea of 'bail' in the light of Article 21 of the Constitution 76

of India

• Bailable and non-bailable offences 77

• Distinction between the two 77

Q De f in e 'bailable' and 'non-bailable' offences? What are the 77

differences between the two?

• Provisions for Bail under the Code 77

• Provision of bail under section 436 of the Code 78

Q F's Mother-in-law, a patient of asthma and aged 57 years, father- 78

in-law aged 60 years and brother-in-law, an outstanding player of
his school cricket team and aged 15 years are arrested for
assaulting in an attempt to wrongfully confine her (a bailable
offence) and murder F (a non-bailable offence). All the accused
apply for bail. They belong to a highly connected family of business
magnates. Can the accused be released on bail? What guidelines
should be kept in view while considering the bail applications? Under
circumstances can be bail be cancelled?

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 • Conditions to be satisfied under section 436 79
¨ Bail in Non-bailable cases 79

Q Discuss the provisions of bail in non-bailable cases? 80

• Bail in non-bailable cases: factors to be considered 81

Q What factors are to be considered by a court of law while granting 81

bail in non-bailable cases?

• Cancellation of Bail 83

Q Can a bail once granted be cancelled? 83

• Distinction between rejection and cancellation of bail 84

• Principle of res-judicata vis-a-vis successive bail applications 85

¨ Anticipatory Bail 85

Q What considerations or conditions are weighed by the courts while 85

granting or refusing bail in an anticipatory bail case?

Q "Anticipatory bail, being an extraordinary remedy, must be allowed 85

only in extraordinary situations". Comment.

Q P, a former minister alleges that he has been falsely implicated in a 86

case of receiving kickbacks from a foreign country. P, apprehending
his arrest moves an application for 'anticipatory bail'. What factors
should be kept in mind while considering P's application?

Q ( i) A, a top government functionary, accused of murder whose 88

underlings (subordinate officials) are the witnesses in the case, is
granted bail by the Session Court on the ground that he is holding a
responsible position and is unlikely to jump the bail

(ii) B, in apprehension of being falsely arrested in connection with a 88

non- bailable offence, applies for an anticipatory bail and the
Session Judge, in his indulgence (generosity) orders that the
applicant shall be released on bail "whenever arrested, for
whichever offence, whatsoever''

(iii) A, a notorious anti-social and smuggler, on the basis of a 88

newspaper report that the government was seriously contemplating
a crack-down on smugglers apprehended his arrest and made an
application for grant of anticipatory bail before the High Court.
Decide

• Whet her Court can pass an interim order during pendency of 89

application under section 438 Cr PC?

• Section 438 vis-a-vis section 439 of Cr PC 89

• When the Apex Court should interfere with orders granting bail? 90

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 • Discretion in granting anticipatory bail-guidelines 91
Q Discuss the guidelines drawn by the Supreme Court for the courts 91
of law in order to exercise their discretion to grant anticipatory bail?

¨ Case Laws 92

• Rao Harnarain Singh Case 92

• Issue before the Supreme Court 93

• Contentions 93

• Observations 93

• George Williams case 94

• Observations and decision of the High Court 94

• Gurcharan Singh Case 95

• Balachand Case 96

• Decision by the Supreme Court 97

• Prahlad Singh Case 97

• Sanjay Gandhi Case 98

• Observation of the Supreme Court 99

• Moti Ram case 99

• Observations 100

¨ Parole 100

Q Discuss briefly the concept of 'Parole' with the help of case law? 100

¨ Furlough 102

Q Explain the term 'furlough'. 103

Chapter 8

COMPOUNDING OF OFFENCES

Q What do you mean by expression 'compounding of offences'? 104

Chapter 9

QUASHING OF FIR AND PROCEEDINGS

Q "Inherent jurisdiction of the High Court under section 482 Cr PC has 111
to be exercised sparingly, carefully and with caution". Comment.

• When inherent power can be exercised? 112

Q When inherent power can be exercised by the High Court under 112
section 482 Cr PC?

• Legal position of the High Court under section 482 Cr PC 114

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 Q When powers under section 482 Cr PC can be invoked? 114

¨ Case Law 115

• M. Devendrappa Case 115

Q Discuss the scope of inherent jurisdiction of the Court. 116

Chapter 10

PROBLEMS AND SOLUTIONS ON CRIMINAL PROCEDURE CODE 117

• Table of Cases 123

• Section Index 129

© Universal law Publishing Co.

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 CHAPTER 1

INTRODUCTION

Whether Code is exhaustive or not?

What do you understand by the expression "Procedure established by law" as

mentioned in Article 21 of the Constitution of India?

What measures are provided by the Code to secure greater benefit to the
accused?

Whether the Code is an adjective law or a procedural law?

The criminal justice system in our country has been inherited from the colonial era
and even though 63 years have been passed since we gained Independence, we
are still following the pre-established trends. The colonial rulers enacted; Indian
Penal Code, (45 of 1860), Indian Evidence Act, (1 of 1872) and the Code of Criminal
Procedure, 1898 which was later modified by Code of Criminal Procedure, 1973 (2
of 1974) of the Indian Parliament in order to simplify the procedure to an extent
possible and to introduce a uniform system in the country in relation to judicial and
executive functions of the Magistrates and to make the separation of judiciary more
effective. The Code of Criminal Procedure, 1973 (2 of 1974) was enacted to remove
anomalies and ambiguities brought to light by conflicting decisions of various High
Courts or otherwise to consider local variations with a view to secure and maintain
uniformity throughout the country, to consolidate laws wherever possible in order
to improve the criminal justice system of our country.

The object of the Criminal Procedure Code is to provide a machinery for the
punishment of offenders for their crimes; Ganesh (in re:), ILR 13 Bom 590 (FB);
Ramaswami (in re:), MANU/TN/0075/1922 : AIR 1922 Mad 443. It prescribes the
procedure for the trial of offences which the Indian Penal Code defines; Surendra
Nath Banerjee v. Chief Justice and Judges of the High Court of Fort, William in
Bengal, (1882-83) 10 Ind App 171: ILR 10 Cal 109 (PC). Section 4 of this Code
provides that all offences under the Code shall be investigated, enquired into, tried
and otherwise dealt with according to the provisions of this Code. It also provides
that offences under a law other than the Indian Penal Code will also be tried
according to the provisions of the Criminal Procedure Code, but subject to any other
provision in the law with regard to investigation, inquiry or trial.1 The Indian Penal
Code is thus the substantive law, of which the Criminal Procedure Code is otherwise
an adjective law to put in force its provisions. This Code is a procedure and, like all
procedural laws, is designed to further the ends of justice and not to frustrate them
by the introduction of endless technicalities. The prime object of the Code is to
 ensure that an accused person gets a full and fair trial in order to ensure the basic
notions of natural justice in our country.

___________________

1. See section 4(2), Cr PC, 1973.

The Code does not merely consolidate previous enactments but is the "law" on the
subject. Further, it does not merely consolidate pre-existing law but also "amends"
it, which taken with consolidation of it, implies both addition to and derogation from
the pre-existing law. It follows that it is a complete Code in itself as regard to the
subject it deals with; Shanthanand v. Basudevanand, MANU/UP/0001/1930 : AIR
1930 All 225 (247) (FB). The very object of consolidation is to collect the statutory
law bearing upon a particular subject, and to bring it down to date, in order that it
may form a useful Code applicable to the circumstances existing at the time when
the consolidating Act is passed; Administrator-General v. Prem Lal, 22 IA 107.

So far as it deals with any point specifically, the Code must be deemed to be
exhaustive and the law must be ascertained by reference to its provisions. But the
Code is exhaustive only with regard to matters specifically dealt with by it. Where
a case arises which obviously demands interference and it is not within those for
which the Code specifically provides, the court has power to make such order as
the ends of justice require; Rahim Sheikh v. R., MANU/WB/0501/1923 : AIR 1923
Cal 724.

Inherent power is conferred under the code only on the High Court and subordinate
Criminal Courts have no inherent powers; Bindeshwari Prasad Singh v. Kali
Singh, MANU/SC/0100/1976 : AIR 1977 SC 2432. But this inherent power is not
capriciously or arbitrarily exercised; it is exercised ex debito justitiae to do that real
and substantial justice for the administration of which alone courts exist; but the
court in the exercise of such inherent power must be careful to see that its decision
is based on sound general principles and is not in conflict with them or with the
intentions of the Legislature as indicated in statutory provision; Bandhu Lal v.
Chattu Gope, AIR 1918 Cal 850. Inherent power cannot be exercised in matters for
which the statute has made express provisions, and in a manner calculated to defeat
the statutory provisions; Khushi Ram v. Hashim, AIR 1959 SC 542.

Article 21 of the Constitution of India guarantees that "no person shall be deprived
of his life or personal liberty except according to procedure established by law".
"Procedure established by law" mentioned herein means the manner and form of
enforcing the law which is prescribed by the Legislature. This Article, therefore,
simply means that you cannot deprive a man of his personal liberty unless you
follow and act according to the law which provides for the deprivation of such
liberty; Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 SC 27. It is
open to the Parliament to change the procedure by enacting a law and that
procedure becomes the procedure established by law within the meaning of that
expression in Article 21; Krishnan v. State of Madras, MANU/SC/0008/1951 : AIR
1951 SC 301. What is prohibited under Article 20 of the Constitution of India is only
conviction or sentence under an ex post facto law and not the trial thereof. Such
trial under a procedure different from that obtained at the time of the commission
of the offence or by a court different from the one that had competence at the time
cannot ipso facto be held unconstitutional. A person accused of the commission of
an offence has no fundamental right to trial by a particular court or by a particular
procedure, except in so far as any constitutional objection by way of discrimination
or the violation of any other fundamental right is involved; Shiv Bahadur Singh v.
State of Vindhyachal Pradesh, MANU/SC/0081/1953 : AIR 1953 SC 394 (398).

The Code of Criminal Procedure, 1973 provides, inter alia, some of the measures to
secure greater benefit to the accused. These are: firstly, every person arrested with
or without warrant should be informed of the ground(s) of arrest and, in bailable
cases, of his right to be released on bail. Secondly, no accused person can be kept
under detention by the police for more than 24 hours without being produced before
a magistrate, whether the arrest is for preventive purposes under section 151 or in
pursuance of a warrant of any court or otherwise. Thirdly, any accused person
cannot be kept in police custody during investigation for more than 15 days even
by an order of the Court. Fourthly, bail provisions have been liberalized. When any
accused person is arrested outside the jurisdiction of the court concerned, he can
be released on bail by the nearest Magistrate instead of being taken into custody to
the court having jurisdiction. Even anticipatory bail can be granted in certain cases
by the competent courts of law.

Lastly, as I have mentioned earlier, the Code of Criminal Procedure, 1973 not only
provides a machinery for the punishment of offence committed, but also aims at
preventing crimes. It also formulates the duties of the police in investigating an
offence and prescribes the mode in which arrests are to be made. Besides, it
empowers a Magistrate or police officer to take assistance of general public in
preventing the escape of an offender in the prevention or suppression of a breach
of peace. This Code, is mainly, an adjective law or procedural law, inasmuch as it
contains in a large measure, the body of rules whereby the machinery of the court
is set in motion for the punishment of offenders. However, certain provisions in the
Code provided in Chapters VIII to XI, which deal with prevention of offences and
create a statutory right for the maintenance of wives, children and parents are
mainly the nature of substantive law.

After the brief introduction of the Code of Criminal Procedure, 1973 and before we
start the main Chapters of this book, it is pertinent to define certain
terms/words/expressions in order to understand the different nuances of the Code
more clearly. Therefore, let us start with the definitions of few important
terms/words/expressions which you will find time and again while reading this book.
DEFINITIONS

(A) Complaint

Generally speaking, the meaning of the word 'complaint' in common parlance is 'a
grievance'. According to section 2(d) of the Code, complaint means any allegation
made orally or in writing to a Magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown, has committed an offence,
but does not include a police report.

What is `complaint'?

Essentials of Complaint

For a document to come within the ambit of 'Complaint', the following essential
conditions have to be satisfied:

(i) It must be made to a Magistrate and not to a Judge or any police officer;

(ii) It must be made with a view to the Magistrate's taking action under the
Code;

(iii) It must contain an allegation that some person, whether known or

unknown, has committed an offence meaning thereby the complaint need
not specify any offender or even the section of the law; and

(iv) It must not be the report of a police officer. 1

(v) Where the order of the Munsif was communicated to the District
Magistrate with a view to action being taken under the Code, and had set
out the facts constituting an offence, it amounts to a complaint;
Chamukuttan Nair v. State of Kerala, (1965) 1 Cr LJ 387 (2).

(B) Offence

Define the word `offence' as given under the Code?

The word "offence" has been defined under section 2(n) of the Cr PC as: It 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.

The definition of "offence" in the Code is meant for the Code itself, and is controlled
by the restrictive words of section, namely, "unless a different intention appears
from the subject or context", no act or omission even though made punishable by
any law for the time being in force will amount to an offence for the purpose of the
Code if a different intention appears either from the subject or context.
 An offence is constituted as soon as it is found that the acts which constitute that
offence have been committed by the person accused of the offence. It remains an
offence whether it is triable by a court or not. If a law prescribes punishment for
that offence, the fact that the trial of that offence can only be taken up by courts
after certain specified conditions are fulfilled, does not make that offence less than
any kind of offence; M.L. Sethi v. R. P. Kapur, MANU/SC/0098/1966 : AIR 1967 SC
528 (536, 537).

______________________

1. Vide Explanation to Clause (d) of section 2 and Chittaranjan Das v. State of West
Bengal, MANU/WB/0039/1963 : AIR 1963 Cal 191.

One important point should be noticed that, the definition provided herein is wider
than the definition of 'offence' contained under section 40 of I.P.C., wherein the
word "offence" denotes a thing made punishable by the Indian Penal Code. The
definition provided in the Code, however, is the same as provided in section 3(37)
of the General Clauses Act, 1897.

(c) Cognizable and Non-cognizable offences

What are cognizable and non-cognizable offences?

According to section 2(c) of Cr PC, 1973, a 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 of the Code or under any law for the time being
in force, arrest without warrant. To bring an offence within the definition of
"cognizable offence" under section 2(c) of the Code, the offence by itself should be
such for which the offender can be arrested without a warrant of arrest; State of
West Bengal v. Joginder Mallick, 1970 Cr LJ 539.

The words "a police officer" used in the definition do not mean "any and every police
officer". The power of arrest may be limited to only particular class of public officers;
State of Gujarat v. Lal Singh, MANU/SC/0233/1980 : AIR 1981 SC 368 (371).
Before the decision of the Supreme Court in the case there was a divergence of
judicial opinions with regard to the connotation of the words "a police officer" used
in section 2(c) of the Code. In this case, it was viewed by the apex Court that the
words "a police officer" do not necessarily mean any and every police officer, and
that it is sufficient to bring an offence within the definition of a "cognizable" offence,
if the power to arrest without a warrant was vested under the law in a police officer
of a particular class only.

A "non-cognizable offence" has been defined under section 2(l) of the Code in the
following manner:
 Under this section, non-cognizable offences are those for which a police
officer has no authority to arrest without warrant. Section 2(l) [Schedule I]
specifies which offences are cognizable and which are non-cognizable, uses
the word 'non-cognizable' for offences for which "a police officer shall not
arrest without warrant". Non-cognizable offences are minor offences where
the injury done to the society is comparatively small and as such the
aggrieved party is expected to lodge a complaint before criminal proceedings
are initiated.

(D) Inquiry

Define the word `inquiry' as provided under the Code?

'Inquiry' means every inquiry, other than a trial, conducted under this code by a
Magistrate or Court.1 It relates to proceedings of Magistrate prior to trial. The
purpose of inquiry is to ascertain truth of the facts alleged.

The term 'inquiry' has a very wide connotation under the code and includes every
inquiry other than a trial. A trial within the meaning of the Code is a judicial
proceeding which ends in either conviction or acquittal; T.P. Singh v. State of Bihar,
1978 Cr LJ 1080 (Pat). Section 159 of the Code empowers a Magistrate on receipt
of a police report under section 157 Cr PC, to hold a preliminary inquiry in order to
ascertain whether an offence has been committed and, if so, whether any person(s)
should be put upon trial.

(E) Investigation

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 authorised by a Magistrate in this behalf.2

Note: The topic 'investigation' has been dealt with in great detail in a separate
Chapter in this book.

(F) Charge

What is charge?

The word 'charge' has not been defined under the Code but section 2(b) Cr PC,
mentions that "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; Reily v. R.,
ILR 28 Cal 434 (437). This topic also constitutes a separate Chapter in this book.

(G) Judicial proceeding

What do you understand by the term 'Judicial Proceeding'?

 The term 'Judicial proceeding', according to definition provided in the Code includes
any proceeding in the course of which evidence is or may be legally taken on
oath.3 To constitute a 'judicial proceeding', therefore, evidence need not have
necessarily been taken. It is sufficient if evidence is contemplated to be taken on
oath; E. Pedda Subba Reddy v. State, MANU/AP/0079/1969 : AIR 1969 AP 281.
'Judicial proceeding shall include the acts of the court which are passed judicially,
i.e., after hearing the parties, and which affect the rights of parties; Subramaniam
v. Commissioner of Police, MANU/TN/0202/1963 : AIR 1964 Mad 185.

__________________________

1. Vide section 2(g) of the Cr PC, 1973.

2. Vide section 2(h) of the Cr PC, 1973.

3. Vide section 2(i) of the Cr PC, 1973.

(H) Officer-in-charge of a police station

It 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 a constable or, when the State Government so directs, any other police
officer so present.1

A clerk attached to a police station and a charge of it, when the sub-inspector and
other senior officers are away on other duty, is an 'officer in charge of the police
station.'2

(I) Trial

This constitutes an important part in the criminal justice system and the same has
been dealt with in the separate Chapter in this book.

___________________

1. Vide section 2(o) of the Cr PC, 1973.

2. Pyli Yacoob v. State, AIR 1953 TC 466.

(J) Remand - Police and Judicial

What does 'Remand' mean?

"Remand" means to 'to send back'; in the context of the Cr PC, remand is always
meant to be the custody of the accused after he has been produced before the
Magistrate. Police remand is often sought on the ground that further investigation
is required and that the accused is likely to disclose more facts or he might be
instrumental in enabling the police to get the roots of a particular case. If the
Magistrate is satisfied, he allows the request of the police; in case the argument of
the accused regarding persisting torture etc., by the police is accepted, but the
presence of the accused is required by the police, the medial course is to remand
the accused to judicial custody. In such a case, the police officials can continue their
investigation but under the overall supervision of the judicial machine so that the
legal rights of the accused are not smothered.

Remand is, however, always before bailing out an accused where the offence is
bailable. The idea behind 'remand' is that the investigating officers must be given
sufficient time to complete the investigation and prepare the case for prosecution.

© Universal law Publishing Co.

 Chapter 2

RIGHTS OF AN ARRESTED PERSON

What are the rights of an arrested person under Cr PC, 1973?

This Chapter deals with 'Arrest of persons' and "their rights". Generally speaking,
'arrest' means "deprivation of personal liberty of an individual". The aim of criminal
law is to protect the right of individual and the State against the intentional invasion
by others, to protect the weak against the strong; the law abiding against lawless,
the weaker against the predator, the peaceful against the violent. During the British
rule, arrests and detentions were a common feature and many freedom fighters
were often arrested and detained for long durations without any trial. People were
arrested and detained on mere suspicion and kept under lock-up. The British did
not follow any law or rule in the real sense of the word; indeed there was no "rule
of law".

This scenario has changed. In a modern welfare State, this protection is sought to
be achieved and ensured by punishing the accused after the accusation against him
has been investigated into and proved beyond doubt in a legal proceeding in
accordance with the provisions of law. To ensure free and fair trial, so that an
innocent person may not be victimized, an accused person; See State of Uttar
Pradesh v. Deoman, MANU/SC/0060/1960 : AIR 1960 SC 1125, is entitled to
contain basic rights and privileges to defend himself and prove his innocence before
he is condemned and punished.

After Independence, the attention of the makers of our Constitution was first drawn
to this pernicious element in our legal and police system. While framing the Chapter
on fundamental rights, they included the inviolable right to freedom and personal
liberty which could not be taken away except according to the procedure established
by law. Article 21 of the Constitution provides:-"No person shall be deprived of life
or personal liberty except according to the procedure established by law".

ARREST OF PERSONS

Broadly speaking, 'arrests' may be classified into two categories, viz.,

(i) arrests under warrants issued by a Court; and

(ii) arrests otherwise than such warrants.

Several sections under Chapter V of the Code, deal with arrests otherwise than
under warrants issued by a Court under the Code, while sections 70 to 81 under
Chapter VIB of the Code deal with arrests in execution of warrants issued by a Court
under the Code.
ARREST WITHOUT WARRANT

When police may arrest without warrant

Write the provisions for the persons who may be arrested without warrant

Section 41(1) of the Cr PC, 1973 provides the norms for the persons who may be
arrested without warrant as under:

(a) who commits, in the presence of a police officer, a cognizable offence;

(b) 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 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, if the following conditions are satisfied,
namely:-

(i) the police officer has reason to believe on the basis of such
complaint, information, or suspicion that such person has committed
the said offence;

(ii) the police officer is satisfied that such arrest is necessary-

(a) to prevent such person from committing any further

offence; or

(b) for proper investigation of the offence; or

(c) to prevent such person from causing the evidence of the

offence to disappear or tampering with such evidence in any
manner; or

(d) to prevent such person from making any inducement,

threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to
the Court or to the police officer; or

(e) as unless such person is arrested, his presence in the

Court whenever required cannot be ensured,

and the police officer shall record while making such arrest,
his reasons in writing.

(ba) against whom credible information has been received

that he has committed a cognizable offence punishable with
imprisonment for a term which may extend to more than
 seven years whether with or without fine or with death
sentence and the police officer has reason to believe on the
basis of that information that such person has committed the
said offence.

(2) Subject to the provisions of section 42, no person concerned in a non-cognizable

offence or against whom a complaint has been made or credible information has
been received or reasonable suspicion exists of his having so concerned, shall be
arrested except under a warrant or order of a Magistrate.

Notice to accused: According to section 41A of the Code

Notice to accused for appearance before police officer.

The police officer may, 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, it shall be lawful for the police officer to arrest him for the offence
mentioned in the notice, subject to such orders as may have been passed in
this behalf by a competent Court.

Procedure for arrest of accused

Procedure of arrest and duties of officer making arrest.

Section 41B of the Code provides that every police officer while making an arrest
shall-

(a) bear an accurate, visible and clear identification of his name which will
facilitate easy identification;

(b) prepare a memorandum of arrest which shall be-

 (i) attested by at least one witness, who is a member of the family
of the person arrested or a respectable member of the locality where
the arrest is made;

(ii) countersigned by the person arrested; and

(c) inform the person arrested, unless the memorandum is attested by a

member of his family, that he has a right to have a relative or a friend named
by him to be informed of his arrest.

Police Control Room at State and District Level

Control room at districts and State level.

Section 41C of the Code makes the provision that the State Government shall
establish a police control room-

(a) in every district; and

(b) at State level.

(2) The State Government shall cause to be displayed on the notice board kept
outside the control rooms at every district, the names and addresses of the persons
arrested and the name and designation of the police officers who made the arrests.

(3) The control room at the Police Headquarters at the State level shall collect from
time to time, details about the persons arrested, nature of the offence with which
they are charged, and maintain a database for the information of the general public.

Right of Arrested person to meet Advocate during interrogation

Right of arrested person to meet an advocate of his choice during interrogation.

Section 41D of the Code states that when any person is arrested and interrogated
by the police, he shall be entitled to meet an advocate of his choice during
interrogation, though not throughout interrogation.

Arrest on refusal to give name and residence

Can a person who refuses to give his name and details of residence be arrested?

Section 42 provides for arrest of a person if he refuses to disclose his identity if he

is suspected to be one of the offenders. This section reads:

A police officer may arrest without a warrant any person who, in the
presence of such an officer, has committed or has been accused of
committing a non-cognizable offence and refuses to give his name and
 residence or gives a name and residence which such officer has reason to
believe to be false [sub-section (1)].

In such a case the arrest is to be made for the purpose of ascertaining the
name or residence and other such ascertainment, the arrestee shall be
released on his executing a bond (with or without sureties) before a
Magistrate if so required. If such a person is not resident in India, the bond
shall be secured by a surety or sureties resident in India. If such
ascertainment or execution of bond could not be had within 24 hours from
the time of arrest, the arrested person shall be forwarded to the nearest
Magistrate having jurisdiction [sub-sections (2)-(3)].

Arrest without a warrant by a police officer in a non-cognizable case

When a person may be arrested without warrant?

A non-cognizable offence is an offence where a police officer may not arrest without
a warrant, but the following are cases where in a non-cognizable case, a police
officer may arrest without a warrant, viz.,

(i) where a person appears to have committed a non-cognizable offence in

the presence of a police officer and refuses to give his name and residence
or gives a false name and residence.1

(ii) where a proclaimed offender is involved in a non-cognizable case.

(iii) where a person obstructs a police officer on duty and commits a non-
cognizable offence under section 186 IPC.

(iv) where a previously convicted offender fails to notify his residence or

charge of or absence from residence as provided in section 356 Cr PC and
thus commits a cognizable offence under section 176 IPC.

___________________

1. Vide section 42 of Cr PC, 1973

Arrest by private person

When private individual(s) may arrest a person?

Arrest of an offender is not the sole duty of the police, it can be made by private
individuals also. When a man is found committing a non-bailable and cognizable
offence and then he tries to escape, the whole is to be treated as single transaction
and any person who either sees him committing the offence is entitled to arrest him
under section 43 Cr PC. Section 43 reads as under:
 A private person may arrest any person, who in his presence, committed a
non-bailable and cognizable offence, or any person who is a proclaimed
offender. He must, without unnecessary delay, make over such person to a
police officer or in the absence of a police officer, take such person or cause
him to be taken in custody to the nearest police station [sub-section (1)]. If
there is reason to believe that such person comes under the provisions of
section 41, the police officer shall re-arrest him. [Section 41 sub-section
(2)].

If, however, there is reason to believe that he has committed a non-

cognizable offence, and he refuses to give his name and address to the police
officer on his demand (or if he gives a name and address which appears to
be false), such a person is to be dealt with under section 42. But if there is
no sufficient reason to believe that he has committed any offence, he shall
be at once released [sub-section (3)].

The provision of this section is extraordinary in the sense that it enables a private
person to arrest a person in certain circumstances, and, therefore, the section must
be construed in a manner so as not to enlarge the power of private individual to
arrest a person; Amrendra Nath v. State of Bihar, MANU/BH/0017/1955 : AIR 1955
Pat 106 (107). The section is purely an enabling act and not in any sense obligatory.

Arrest by Magistrate

Section 44 consists of two clauses (1) and (2). In sub-clause (1), the Magistrate
has been given power to arrest the person himself or may order any person to
arrest the offender, if a person commits a crime in his presence.

Under sub-clause (2), the offence has not been committed in his presence and he
is not sure whether the person brought before him under arrest has really
committed the offence or not. It is obvious because of this reason that he has not
been given the power to commit the offender to custody. He can just arrest him or
get him arrested and possibly can even search his person to find out whether he is
possessed of any incriminating article or not. Beyond this, he is not permitted to do
anything else; Ram Chandra v. State of Uttar Pradesh, 1977 Cri LJ 1783.

Restriction on Arrest of Women

Proviso to section 46(1) provides that where a woman is to be arrested, unless the
circumstances indicate to the contrary, her submission to custody on an oral
intimation of arrest shall be presumed and, unless the circumstances otherwise
require or unless the police officer is a female, the police officer shall not touch the
person of the woman for making her arrest.

Medical Examination of Arrested Person

Examination of arrested person by medical officer.

Section 54 makes the procedure for examination of arrested person by medical

officer in the way that:

(1) When any person is arrested, he shall be examined by a medical officer

in the service of Central or State Governments and in case the medical officer
is not available by a registered medical practitioner soon after the arrest is
made:

Provided that where the arrested person is a female, the examination

of the body shall be made only by or under the supervision of a
female medical officer, and in case the female medical officer is not
available, by a female registered medical practitioner.

(2) The medical officer or a registered medical practitioner so examining the

arrested person shall prepare the record of such examination, mentioning
therein any injuries or marks of violence upon the person arrested, and the
approximate time when such injuries or marks may have been inflicted.

(3) Where an examination is made under sub-section (1), a copy of the

report of such examination shall be furnished by the medical officer or
registered medical practitioner, as the case may be, to the arrested person
or the person nominated by such arrested person.

Health and Safety of Arrested Person

According to section 55A of the Code, it shall be the duty of the person having the
custody of an accused to take reasonable care of the health and safety of the
accused.

Arrest to be made according to the Code or any other law providing for arrest

Section 60A strictly provides that no arrest shall be made except in accordance with
the provisions of this Code or any other law for the time being in force providing for
arrest.

Warrant of Arrest

Form of warrant of arrest

What are the requirements of form of warrant of arrest?

Sections 70 to 81 collected under sub-heading "Warrant of Arrest" in Chapter VI

deal with execution of warrant of arrest under section 70 issued by a court. In
Schedule II, Form No. 2, Form of a warrant has been given. This Form clearly shows
that a warrant is an order or written authority given by a competent magistrate to
 arrest a person and to produce him before the court. If the crime is not committed
in his presence, but if he is competent to issue the warrant, he may arrest the
person before him.

Section 70 of the Code provides for the 'form of warrant of arrest and duration' in
the following manner:

(i) The warrant must be in writing.

(ii) It must be signed by the presiding officer of the court issuing the warrant.

(iii) It must bear the court's seal.

(iv) It must give full name and description of the person to be arrested.

(v) It must clearly specify the offence for which person is charged.

(vi) It must bear the name and designation of the person to whom authority
to execute such warrant is given.

Every warrant should state, as shortly as possible, the special matter on which it
proceeds. A warrant should be issued strictly in accordance with law; J.K. More v.
Chief Presidency Magistrate, 71 Cal WN 508. A strict adherence to the form of
warrants of arrest prescribed by the Code will tend to prevent their being granted
irregularly and without inquiry as to whether the circumstances justify their issue.

Essential requisites of a warrant

What are the essential requisites of a warrant?

Where a person is arrested pursuant to or under cover of a warrant, the warrant

must comply strictly with the terms of this section. Following are the essential
requisites of a warrant:-

(i) Must be in writing;

(ii) Must be signed by the Presiding Officer of Court or Magistrate;

(iii) Must be sealed by Magistrate or Court

(iv) Must clearly identify the person to be arrested;

(v) Must specify the offence charged;

(vi) Warrant must clearly show the authority of person who is to execute the
warrant;

(vii) Must include direction and if the person arrested under the warrant
executes a bond and offers a security for his attendance in Court;
 (viii) Age of the person to be detained must be mentioned in the warrant;
Sanjay Suri v. Delhi Administration, MANU/SC/0137/1987 : AIR 1988 SC
414.

How long does warrant remains in force?

Can a person in a police station be detained for more than 24 hours?

The Code itself does not provide for any time-limit for its validity. Therefore, when
the Legislature has not prescribed any time period for which a warrant is to be in
force, the presumption is that it retains its validity until it is executed or it is
cancelled by the court; Emperor v. Alloomiya Hussain, ILR 288 (291). The force of
a warrant of arrest continues until it is cancelled, in which case it is at an end and
cannot be re-issued; Guru Charna (in re:), 1 CWN 650.

Period of detention

Every police official who arrests and detains any person for an offence can not
detaine such a person in the police station for more than 24 hours, after which he
must produce the said person before the Magistrate who is having jurisdiction over
the area in which the offence is alleged to have been committed.

During this period of 24 hours, the police may make enquiries and investigation,
ask questions and ascertain more facts about the case; the police officials make the
case ready for prosecution before the Magistrate on the basis of their investigation.
The accused or the detained persons may make some confessional statements
before the police officials but such statements have not to be signed by the maker;
such statements can be revoked by the persons making such statements when they
are produced before the Magistrate.

Rights of an arrested person

In Criminal law, the rights of an arrested person are basically part of human rights. If these
rights are not recognized by the law or if recognized, they are not respected and observed,
no person would be protected against authoritarian rule of the State; and the right to
freedom and personal liberty guaranteed under the Constitution would remain merely pious
declaration.1 From the core of our criminal jurisprudence, it is important to note that with
the enforcement of the Constitution of India, 'Right to life and Personal liberty' were
adjudged to be the most precious possession of a man and declared as basic human rights
under Article 21 of the Constitution; A.D.M., Jabalpur v. Shivakant
Shukla, MANU/SC/0029/1975 : AIR 1976 SC 1027 (As per H.R. Khanna, J.). Law makers
have provided and devised a number of safeguards under Articles 14, 19, 20, 22 and 39A
of the Constitution, etc. to ensure that no one is victimized by the hands of the State
functionaries. Now, let us discuss the constitutional & statutory rights and safeguards
devised for the arrested persons:
___________________

1. P.N. Bhagwati J., Foreward to A.N. Chaturvedi's book on `Right of the accused'.

(i) Right to know the grounds of arrest.-According to section 50(1) of the Cr PC,
1973:

Every police officer or other person arresting any person without warrant
shall forthwith communicate to him full particulars of the offence for which
he is arrested or other grounds for such arrest.

Secondly, when a subordinate officer is deputed by a senior police officer to

arrest a person under section 55, such subordinate officer shall, before
making the arrest, notify to the person to be arrested the substance of the
written order given by the senior police officer specifying the offence or other
cause for which the arrest is to be made. Non-compliance with this provision
will render the arrest illegal.

Thirdly, in case of arrest to be made under a warrant, section 75 of the Cr

PC provides that "the police officer or other person executing a warrant of
arrest shall notify the substance thereof to the person to be arrested, and if
so required, shall show him the warrant." If the substance of the warrant is
not notified, the arrest would be unlawful.

(ii) Right against Ex-post Facto operation of Law.-

Clause (1) to Article 201 of the Constitution prohibits the State to give
retrospective operation of criminal law. In other words, a person cannot be
punished for a crime more than what was prescribed at the time of the
commission of the offence. An ex-post facto law is a law which imposes
penalties retrospectively i.e., on acts already done and enhances the penalty
for such acts. The operation of law will be applicable prospectively only i.e.
from the date the law was enacted.

(iii) Protection against double-jeopardy.-

Clause (2) to Article 202 embodies the common law rule of 'nemo debet bis
vexari pro una et eadem causa' i.e. no man should be put twice in peril for
the same offence. If a man is prosecuted again for the same offence for
which he has already been prosecuted, he can take complete defence of his
former conviction. The object of this provision is to avoid the harassment to
a person by successive criminal proceedings when only one crime has been
committed; Union Carbide Corporation v. Union of
India, MANU/SC/0058/1992 : AIR 1992 SC 248; K.D. Gaur, Criminal Law
Cases and Materials (3rd Edn., 1999) pp. 17 to 21.
_______________________

1. Article 20 Clause (1) runs as under:

"No person shall be convicted of any offence except for violation of a law in force at the time of the
commission of the act charged as an offence, not subjected to a penalty greater than which might
have ben inflicted under the law in force at the time of the commission of the offence."

2. Article 20 Clause (2): "No person shall be prosecuted and punished for the same offence more than once".

However, if the act is both a crime and a tort, for instance as in case of
defamation, an action may lie both in tort as well as in crime because
proceedings in two cases are different. In the case of crime, the accused is
punished, while in tort, the wrong doer is asked to pay damages to the
injured. In other words, in crime, the nature of proceeding is criminal, while
in tort, it is civil and hence it will not attract Clause (2) to Article 20 of the
Constitution which puts ban on prosecution twice for the same offence.

(iv) Protection against self-incrimination and torture.-

The detainee is not bound to answer all questions put to him in the course
of investigation if he thinks that such answers are likely to be self-
incriminatory. Clause (3) to Article 20 of the Constitution provides that "No
person who is accused of any offence shall be compelled to be a witness
against himself".

Analogous provision has also been made in Cr PC, section 161(2) of the Code
requires a person including an accused person to answer truly all questions
put to him by investigating police officer and accused person may remain
silent or may refuse to answer when confronted with self incriminating
questions

In Nandini Satpathy v. P.L. Dani, MANU/SC/0139/1978 : AIR 1978 SC 1025; where

a list of questions was provided to the appellant/petitioner and she refused to
answer those questions, their Lordships of the Supreme Court observed that the
accused cannot be forced to answer questions on the ground that the answers are
not likely to implicate him/her because the case in investigation was an isolated
one. The accused has the right to keep silent if the answers sought are likely to
expose him/her to guilt in some other case, actual or imminent, although the
investigation may have nothing to do with such other cases. Thus, when the accused
are confronted with their statement before the police in the Court, they are entitled
to deny the facts or the truth was given under threat, duress or inducement.

In M.P. Sharma v. Satish Chandra, MANU/SC/0018/1954 : AIR 1954 SC 300; the

Supreme Court said that this right embodies the following essentials:
 (a) It is a right pertaining to a person who is "accused of an offence",

(b) It is a protection against "compulsion to be witness",

(c) It is a protection against such compulsion relating to his giving evidence

"against himself".

(v) Information regarding the right to be released on bail.-

Section 50(2) of the Code provides that the person arrested without any
warrant should forthwith be intimated, where the offence is a bailable one,
of his right to be released on bail.

This sub-section has been provided in the code to help those persons who
might not be aware of their right to be released on bail in case of bailable
offences.

(vi) Right to be taken before a Magistrate without delay.-

Whether the arrest is made without warrant by a police officer, or whether

the arrest is made under the warrant by any person, the person making the
arrest must bring the arrested person before a judicial officer without
unnecessary delay. It is also provided that the arrested person should not
be confined in any place other than a police station before he is taken to the
Magistrate.1

_________________

1. Vide sections 56 & 76 of the Code.

(vii) Right to consult a legal practitioner.-

The right to defence is one of the basic rights of an arrested person; See
N.H. Hoskot v. State of Maharashtra, MANU/SC/0119/1978 : AIR 1978 SC
1548; as envisaged in Clause (1) to Article 22 of the Constitution. It affirms
that an arrested person cannot be denied the right to consult and be
defended by a legal practitioner of his choice. Section 303 of Cr PC, 1973
also provides for representation by a pleader of one's choice to an accused
charged of an offence. And the Court is under an obligation to provide an
amicus curie to defend an accused who is unable to engage a lawyer to
defend him at the State expenses. The legal aid and assistance to the
indigent and prisoners is a radical humanist concomitant of the rule of prison
law. Article 39A of the Constitution is an interpretative tool for Article 21.
Partial statutory implementation of the mandate is found in section 304(1)
of the Cr PC, 1973 which provides for legal aid to the accused at the State
expense in certain cases. Courts cannot be inert in the face of Articles 21
 and 39A of the Constitution. If a prisoner sentenced to imprisonment is
virtually unable to exercise his constitutional and statutory right of appeal,
inclusive of special leave to appeal, for want of legal assistance, there is
implicit in the Court under Article 142 read with Articles 21 and 39A of the
Constitution, power to assign counsel for such imprisoned individual for
doing complete justice. It is important to note here that, keeping in view the
constitutional obligation, the Parliament in 1987 enacted the Legal Services
Authorities Act, 1987 to provide free and competent legal services to the
weaker sections of the society. The Act inter alia envisages to ensure that
opportunities for securing justice are not denied to any citizen for reason of
economic or other disabilities.

(viii) Right to be examined by a medical practitioner.-

This right has been envisaged in sections 53 and 54 of the Cr PC, 1973.
While section 53 empowers a police officer to get an arrested person
medically examined, section 54 of the Code provides that when any person
is arrested, he shall be examined by a medical officer in the service of Central
or State Governments and in case the medical officer is not available by a
registered medical practitioner soon after the arrest is made. Provided that
where the arrested person is a female, the examination of the body shall be
made only by or under the supervision of a female medical officer, and in
case the female medical officer is not available, by a female registered
medical practitioner. The medical officer or a registered medical practitioner
so examining the arrested person shall prepare the records of such
examination, mentioning therein any injuries or marks of violence upon the
person arrested, and the approximate time when such injuries or marks may
have been inflicted. Copy of such report shall be furnished by the medical
officer or registered medical practitioner, as the case may be, to the arrested
person on the person nominated by such arrested person.

(ix) Right against illegal detention.-

Right against illegal detention was not recognized prior to the Supreme Court
decision in Hussainara Khattoon v. State of Bihar, AIR 1980 SC 1819;
wherein, the plight of under-trial prisoners was considered for the first time.
In this case, the Supreme Court granted a charter of freedoms for under-
trials who had spent virtually their whole life awaiting trial, i.e., for the much
longer period than the maximum term they could have served in jail had
they been found guilty of charge.

It is a well known legal dictum that until a person is found guilty by a court
of law he or she is presumed to be innocent. Unfortunately, in our jails there
are more innocent captives than adjudged criminals. To make things worse,
 prison conditions are abominable (disgusting) and persons detained in
prisons as undertrials are often subjected to various forms of torture,
ranging from handcuffing to maiming and blinding as had happened in
Bhagalpur. There is little justice within the four walls of prison.

In case of under trial prisoners, the period of detention should be included

in the sentence meted out to them. But if they are to be acquitted, how can
they be compensated for the agony which they have already undergone for
no fault of theirs. This state of affairs is a sad commentary on our legal
system and judicial process.

(x) Right of just and fair treatment.-

A pre-trial detainee, like any other prisoner is entitled to just and fair
treatment by way of comfort, medical facilities etc. The practice of keeping
undertrials with prisoners has been vehemently criticised and such a practice
is held to be in violation of Articles 19 and 21 of the Constitution.

In Prem Shankar v. Delhi Administration, MANU/SC/0084/1980 : AIR 1980 SC

1535; also see Sunil Gupta v. State of Madhya Pradesh, MANU/SC/0661/1990 :
(1990) 3 SCC 119, the court deplored the practice of handcuffing of the prisoner
prima facie as "inhuman, arbitrary and unreasonable, and repugnant to Article 21".
Similarly, in Kishore Singh v. State of Rajasthan, MANU/SC/0072/1980 : AIR 1981
SC 625; the Supreme Court held that the use of 'third degree' method by police is
violative of Article 21 and directed the Government to take necessary steps to
educate the police so as to inculcate a respect for the human person. Similarly,
torture and ill treatment of men and women in police lockup have been held to be
violative of Article 21.

(xi) Right of Public Trial vis-a-vis Speedy Justice.-

Speedy trial is the essence of criminal justice system and there can be no
doubt that delay in trial by itself constitutes denial of justice. Section 327 of
the Cr PC, 1973 provides for an open court proceedings, to which the public
generally may have access. This is based on the principle of openness of
judicial proceedings so as to check against capricious exercise of judicial
power or vagaries and to ensure confidence of public in judicial
administration. The right to have public trial is also implicit in Articles 14,
19(1)(a) and 21 of the Constitution. Of course, inquiry into and trial of crime
against women, such as rape or an offence under sections 376, 376A, 376B,
376C and 376D, I.P.C. dowry death (section 304B), abetment to suicide of
a married woman (section 306), cruelty by husband or relatives etc. (section
498A I.P.C.) shall be conducted in camera if the presiding judge feels so in
view of the sensitive nature of the proceedings.1
______________________

1. See Clause (2) to section 327 of Cr PC; also State of Punjab v. Gurmit Singh, AIR 1988 SC 3164.

Though speedy trial is not specifically enumerated as a fundamental right in the

Constitution, it is implicit in the broad sweep and content of Article 21 as interpreted
by the Supreme Court in Maneka Gandhi v. Union of India, MANU/SC/0133/1978 :
AIR 1978 SC 597; in which the court held that Article 21 confers a fundamental
right on every person not to be deprived of his life or liberty except in accordance
with the procedure prescribed by law. And it is not enough to constitute compliance
with the requirement of that Article that some semblance of a procedure should be
prescribed by law, but that the procedure should be reasonable, fair and just. If a
person is deprived of his liberty under a procedure which is not reasonable, fair or
just, such deprivation would be violative of his fundamental right under Article 21
and he would be entitled to enforce such fundamental right and secure his release.
Procedure, which does not ensure a reasonably, quick and speedy trial, cannot be
regarded as reasonable, fair or just and it would fall foul of Article 21.

In Abdul Rahman Antulay v. R.S. Nayak, MANU/SC/0326/1992 : AIR 1992 SC 1701;

Supreme Court laid down detailed guidelines for speedy trial of an accused in a
criminal case but it declined to fix any time limit for trial of offences. In a recent
case, P. Ramachandra Rao, (2002) 4 SCC 507; the Supreme Court while approving
Antulay, held that speedy trial in criminal cases is one of the basic requirements.
However, no limitation could be fixed to terminate the proceedings in a criminal
case. Every case is to be judged on the facts and circumstances of its own and the
court will decide accordingly.

Guidelines for arrest and detention

Discuss the charter of rights of an arrested person to safeguard the interest of

the arrestee laid down in D.K. Basu case by the Supreme Court.

In D.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : AIR 1997 SC 610

(623);1 the Supreme Court has outlined a charter of rights of the arrested person
to safeguard the interest of the arrestee and these are as follows:

1. The police personnel carrying out the arrest and handling the interrogation
of the arrestee should bear accurate, visible and clear identification and
name tags with their designations. The particulars of all such police
personnel who handle interrogation of the arrestee must be recorded in a
register. That the police officer carrying out the arrest shall prepare a memo
of arrest at the time of arrest and such memo shall be attested by at least
one witness, who may be either a member of family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also
 be countersigned by the arrestee and shall contain the time and date of
arrest.

2. A person who has been arrested or detained and is being held in custody
in a police station or interrogation centre or other lock up shall be entitled
to have one friend or relative or other person known to him or having interest
in his welfare being informed, as soon as practicable, that he has been
arrested and is being detained at the particular place.

3. The time, place of arrest and venue of custody of an arrestee must be

notified by the police where the next friend or relative of the arrestee lives
outside the district or town through the legal aid organisation in the district
and the police station of the area concerned telegraphically within a period
of 8 to 12 hours after the arrest.

4. The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.

_________________

1. The Executive Chairman, Legal Aid Services, West Bengal, on 26th August, 1986 addressed a letter to the
Chief Justice of India drawing his attention to certain news items published in the Telegraph newspaper dated
20th, 21st and 22nd July, 1986 and in The Statesman and Indian Express dated 17th August, 1986 regarding
deaths in police lock-ups and police custody or prison. The letter was treated as a writ petition under "public
interest litigation". While the writ petition was under consideration a letter addressed by Shri Ashok Kumar
Johri on 29th July, 1987 to the Hon'ble Chief Justice of India drawing the attention of the court to death of one
Mahesh Bihari of Pilkha, Aligarh district of U.P. in police custody was received. The letter was also treated as a
writ petition and was directed to be listed along with the writ petition of D.K. Basu.

5. An entry must be made in the diary at the place of detention regarding

arrest of the person who has been informed of the arrest and the names and
particulars of the police officials in whose custody the arrestee is.

6. The arrestee should, where he so requests, be also examined at the time

of his arrest and major and minor injuries, if any, present on his/her body,
must be recorded at that time. The "inspection memo" must be signed both
by the arrestee and the police officer effecting the arrest and its copy
provided to the arrestee.

7. The arrestee should be subjected to medical examination by a trained

doctor every 48 hours during his detention in custody by a doctor on the
panel of approved doctors appointed by Director, Health Services of the
concerned State or Union Territory, Director, Health Service should prepare
such a panel for all Tehsils and Districts as well.
 8. Copies of all the documents including the memo of arrest, referred to
above, should be sent to the Illaqa (area) Magistrate for his record.

9. The arrestee may be permitted to meet his lawyer during interrogation,

though not throughout the interrogation.

10. A police control room should be provided at all district and state
headquarters, where information regarding the arrest, and the place of
custody of the arrestee shall be communicated by the officer causing the
arrest within 2 hours of effecting the arrest and at the police control room it
should be displayed on a conspicuous place.

The Supreme Court has held that-

(i) "The above requirements, flow from Articles 21 and 22(1) of the
Constitution. It must be strictly followed; and

(ii) These requirements are in addition to the constitutional and statutory

safeguards and do not detract from various other directions given by this
court time to time in connection with the safeguarding of the rights and
dignity of the arrestee.

Joginder Kumar Case

In Joginder Kumar v. State of Uttar Pradesh, MANU/SC/0311/1994 : (1994) 4 SCC

260; a writ petition was made before the Supreme Court under Article 32 of the
Constitution by the petitioner against his illegal detention.

The Supreme Court observed and held as under:

"The horizon of human right is increasing. At the same time, the crime rate
is also increasing. Of late, this court has been receiving complaints about
violation of human rights because of indiscriminate arrests. How are we to
strike a balance between the two? A realistic approach should be made in
this direction. The law of arrest is one of balancing individual's rights,
liberties, and privileges, on the one hand, and individual duties, obligation
and responsibilities on the other [As observed in People v. Defore, 242 NY
13 (24)].

The court observed and held: "The existence of the power to arrest is one
thing. The justification for the exercise of it is quite another. The police
officer must be able to justify the arrest apart from his power to do so. Arrest
and detention in police lock-up of a person can cause incalculable harm to
the reputation and self-esteem of a person. No arrest can be made in a
routine manner on a mere allegation of commission of an offence made
against a person. A person is not liable to be arrested merely on the
 suspicion of complicity effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a police
officer issues notice to person to attend the station house and not to leave
the station without permission to do so". These rights are inherent in Articles
21 and 22(1) of the Constitution and requires to be recognized and
scrupulously protected. It shall be the duty of the Magistrate, before whom
arrested person is produced, to satisfy himself that the requirements of
Articles 21 and 22(1) of the Constitution are complied with."

For the effective enforcement of these fundamental rights, the Supreme Court
issued the following requirements:

1. An arrested person being held in custody is entitled, if he so requests to

have friend relative or other person who is known to him or likely to take an
interest in his welfare (to be) told as far as it is practicable that he has been
arrested and where he is being detained.

2. The police officer shall inform the arrested person when he is brought to
the police station of his right.

3. An entry shall be required to be made in the Diary as to who was informed

of his arrest.

© Universal law Publishing Co.

 CHAPTER 3

INFORMATION TO POLICE AND THEIR POWERS TO INVESTIGATE

Chapters XI and XII of the Cr PC, 1973 cannot be said to be mutually exclusive.
Chapter XII deals with "information to the police and their powers to investigate".
It prescribes the procedure for investigation. But this investigation is not confined
to cognizable offences only. It may be restored to in non-cognizable offences under
section 155 or in case of no crime at all, e.g., unnatural death as under section 174.
'Investigation' usually starts on information relating to the commission of an offence
given to an officer-in-charge of a police station and recorded under section 154 of
the Cr PC. If, from the information so received or otherwise, the officer-in-charge
of the police station has reason to suspect the commission of an offence, he, or
some other subordinate officer deputed by him, has to proceed to the spot to
investigate the facts and circumstances of the case and if necessary, to take
measures for the discovery and arrest of the offender.

According to the scheme of the Code, investigation is a normal preliminary to an

accused being put up for trial for a cognizable offence (except when the Magistrate
takes cognizance otherwise than on a police report in which he has the power under
section 202 to order investigation if he thinks fit). Therefore, it is clear that when
the legislature made the offences in an act cognizable, prior investigation by the
appropriate police officer was contemplated as the normal preliminary to the trial
in respect of such offences under the Code.

Thus, investigation primarily consists in the ascertainment of the facts and

circumstances of the case. According to section 2(h) of the Cr PC, 1973,
'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 authorised by a Magistrate in this behalf.

FIRST INFORMATION REPORT (FIR)

Explain the expression "First Information Report".

The report first recorded by the police relating to the commission of a cognizable
case is the first information report (FIR) giving first information of the cognizable
crime. This is usually made by the complainant or by someone on his behalf. The
FIR is made to the police with the object of putting the police in motion in order to
investigate a crime.

The term FIR has not been defined in the Code of Criminal Procedure. However, it
is nothing but the statement of the maker of the report at a police station before a
police officer recorded in the manner provided by the provisions of the Code; State
v. Shiv Singh, MANU/RH/0002/1962 : AIR 1962 Raj 3. Whether or not a particular
 statement would constitute the first information is a question of fact and would
depend upon the circumstances of the case. It is not every piece of information,
however vague and indefinite or unauthenticated which will form the FIR, merely
because it was the first to reach the police station. The special significance of the
FIR lies in the fact that it is a record of the earliest information about an alleged
offence, a statement given before the circumstances of the crime can be forgotten
or embellished; State of Kerala v. Samuel, AIR 1962 Ker 99. The information must
not be vague, but definite enough to enable the police to start investigation; State
of Assam v. Upendra Nath Rajkhosla, 1975 Cr LJ 354 (Gau).

First Information Report (FIR) at the initial stage must disclose some cognizable
offence so that the police may proceed with the investigation of the case, as it is
prerogative of the police to investigate the same; Subhas Aggarwal v. State of
Bihar, 1989 Cr LJ 1752.

Information in cognizable offence

Section 154 of the Cr PC, 1973 provides for the information in cognizable offence.

The section provides that if the information is given orally, it shall be reduced to
writing by the officer-in-charge of the police station or under his direction and be
read over to the informant and shall be signed by the person giving it. The
substance of information shall also be entered in a book kept by such officer in the
form prescribed therefor; Hasan Adbulla v. State, MANU/GJ/0059/1962 : AIR 1962
Guj 218.

Any person aware of the commission of any cognizable offence may give information
to the police and may, thereby set the criminal law in motion. Such information is
to be given to the officer-in-charge of the police station having jurisdiction to
investigate the offence. The information so received shall be recorded in such a
form and manner as is provided in section 154. That section is intended to ensure
the making of an accurate record of the information given to the police. According
to this section:-

(1) If the information is given orally to the office-in-charge of the police

station, it shall be reduced to writing by the officer himself or under his
direction.

(2) If the information is given in writing, or if reduced to writing as aforesaid,

the writing shall be signed by the informant.

(3) The information as taken down in writing shall be read over to the
informant.
 (4) The substance of the information shall then be entered, by the police
officer, in a book to be kept by such an officer in the form prescribed by the
State Government. This book is called the Station Diary or General Diary.

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

(6) If the office-in-charge of the police station refuses to record the

information any person aggrieved by such refusal may send, in writing and
by post, the substance of such information to the Superintendent of Police
concerned. If the Superintendent is satisfied that such information discloses
the commission of a cognizable offence, he shall either investigate the case
himself or direct an investigation to be made by any police officer
subordinate to him. Such an officer shall have all the powers of an officer-
in-charge of the police station in relation to that offence.

Object of FIR

The legal position as to the object, value and use of the FIR is well-settled. The
principal object of the FIR from the point of view of the investigation authorities is
to obtain information about the alleged criminal activity so as to be able to take
suitable steps for tracing and bringing to book the guilty party; Hasib v. State of
Bihar, MANU/SC/0180/1971 : AIR 1972 SC 283.

Evidentiary value of FIR

What is the evidentiary value of FIR?

Although FIR recorded by the police is of considerable value at the trial showing as
it does on what materials the investigation commenced, it is not a piece of
substantive evidence, but may only be considered for the purpose of corroboration
under section 157 of the Indian Evidence Act, if all the provisions thereof are
complied with. It is admissible in evidence against the maker or informant. It can
be used only as a previous statement admissible to corroborate or contradict a
statement made by the informant subsequently in court. It can, therefore, be used
only for the purpose of corroborating or contradicting the maker thereof. The FIR is
never treated as a substantive piece of evidence. It can only be used for
corroborating or contradicting its maker when he appears in court as a witness. Its
value must depend upon the facts and circumstances of a given case; Dharma Ram
Bhagare v. State of Maharashtra, 1974 (II) SCJ 349.

Delay in lodging FIR

Whether delay in lodging FIR affects the case?

"When there is criticism on the ground that FIR in a case was delayed, the Court
has to look at the reason why there was such a delay. There can be a variety of
genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of
the need for informing the police of a crime without any lapse of time. This kind of
unconversantness is not too uncommon among urban people also. They might not
immediately think of going to the police station. Another possibility is due to lack to
adequate transport facilities for the informers to reach the police station. The third,
which is quite common bearing, is that the kith and kin of the deceased might take
some appreciable time to regain a certain level of tranquility of mind or sedativeness
of temper for moving to the police station for the purpose of furnishing the requisite
information. Yet another cause is, the persons who are supposed to give such
information themselves could be so physically impaired that the police had to reach
them on getting some nebulous information about the incident.

We are not providing an exhausting catalogue of instances which could cause delay
in lodging the FIR. Our effort is to try to point out that the state demand made in
the criminal courts to treat the FIR vitiated merely on the ground of delay in its
lodgment cannot be approved as a legal corollary. In any case, where there is delay
in making the FIR, the Court has to look at the cause of it and if such causes are
not attributable to any effort to concoct a version no consequence shall be attached
to the mere delay in lodging the FIR; Ravinder Kumar v. State of
Punjab, MANU/SC/0536/2001 : (2001) 7 SCC 690.

There is no hard and fast rule that any delay in lodging the FIR would automatically
render the prosecution case doubtful. It necessarily depends upon facts and
circumstances of each case whether there has been any such delay in lodging the
FIR which may cast doubt about the veracity of the prosecution case and for this a
host of circumstances like the condition of the first informant, the nature of injuries
sustained, the number of victims, the efforts made to provide medical aid to them,
the distance of the hospital and the police station, etc. have to be taken into
consideration. There is no mathematical formula by which an inference may be
drawn either way merely on account of delay in lodging of the FIR; Amar Singh v.
Balwinder Singh, MANU/SC/0065/2003 : (2003) 2 SCC 518: 1 (2003) SLT 733.

Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the
prosecution case and discarding the same solely on the ground of delay in lodging
the first information report. Delay has the effect of putting the Court on its guard
to search if any plausible explanation has been offered for the delay, and if offered,
whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the
delay and there is a possibility of embellishment in the prosecution version on
account of such delay, the delay would be fatal to the prosecution. However, if the
delay is explained to the satisfaction of the Court, the delay cannot be itself be a
ground for disbelieving and discarding the entire prosecution case; State of
 Himachal Pradesh v. Gian Chand, MANU/SC/0312/2001 : (2001) 6 SCC 71: III
(2001) SLT 740.

The settled principle of law of this Court is that delay in filing FIR by itself cannot
be a ground to doubt the prosecution case and discard it. The delay in lodging the
FIR would put the Court on its guard to search if any plausible explanation has been
offered and if offered whether it is satisfactory; Sahebrao v. State of Maharashtra,
II (2006) CCR 158 (SC).

Signature of the informant on FIR

The FIR is required to be signed by the informant, unless the report is signed by
him, it cannot be treated as FIR in the case; Anu Meah v. Tripura Administration,
AIR 1961 Tri 4. A telephonic information cannot be treated as a FIR; Jai Singh v.
State, AIR 1967 Del 14. Likewise, a telegram is also not a FIR; Kachi Hazam v.
Seraj Khan, MANU/WB/0278/1934 : AIR 1935 Cal 403, unless, the original of the
telegram is signed or thumb marked by him, it may be treated as FIR; Chinan Singh
v. E., ILR 15 Lah 814.

Whether statement to police is protected

Complaints or statements made to police officers do not form part of judicial

proceedings and, therefore, no privilege is attached to them. If the matter
ultimately goes before the Court, these may be subject to absolute privilege. If the
matter does not go to the court at all, then the maximum benefit that may be
available is qualified privilege; Govind S. Walanalkar v. Pandarinath, (1985) 87 Bom
LR 1.

INFORMATION AS TO NON-COGNIZABLE CASES

While information in cognizable cases having been dealt with in the section 154 Cr
PC, section 155 Cr PC, deals with information in non-cognizable cases. Section 155
Cr PC reads:

This section comprises of four sub-sections. Sub-section (1) simply empowers the
officer-in-charge of a police station to record the information and refer the informant
to the Magistrate. Sub-section (2) expressly prohibits the police officer from
investigating a non-cognizable case without the order of a Magistrate. Sub-section
(3) then lays down how the police officer should proceed in the case once he gets
the order of the Magistrate. Sub-section (4) expressly provides that if one of the
offences reported is cognizable and the report relates to two or more offences, then
the case must be treated as a cognizable case. That is to say, the powers and duties
under section 154 will be attracted under section 155 as well.

Where information is given to the police of a cognizable offence and the case is
registered regarding that offence, the investigating officer, while investigating the
 cognizable offence cannot possibly be debarred from investigating any subsidiary
and non-cognizable offence which may arise out of the facts, and can also include
these latter cases in his main report under section 173; Ram Krishna Dalmia v.
State, 1958 Pun 172 (173).

Difference between sections 154 and 155 of Cr PC

In what way is section 154 Cr PC different from section 155 Cr PC?

Sections 154 and 155 of Code of Criminal Procedure deal with the information to
the police. However, there are following differences between these two sections:

(i) Under section 154 Cr PC which deals with cognizable offences, the officer-
in-charge of the police station is bound to record the entire information as
received by or as given to him while under section 155 Cr PC which deals
with non-cognizable offences, the police shall record the substance of officer
such report as is given by the informant and the same has to be referred to
the Area Magistrate.

(ii) Another difference between the two sections lies in the fact that whereas
the Police Officer in-charge of a Police Station can start the investigation into
the alleged cognizable offence on the basis of the first information received
and recorded by him, the same cannot be done in case of non-cognizable
offences. Under section 155, the information received by the Police Officer
has to be transmitted to the Magistrate, whose prior order and permission
must be obtained by the Police Officer to start the investigation into the
offence of a non-cognizable character.

Statements made to the police under sections 154 and 155 Cr PC cannot be used
as evidence

Statements made to the police as the result of action taken under section 154 or
section 155 are privileged statements, and, as such, cannot be used as evidence or
made the foundation of charge of defamation; Parwari v.
Emperor, MANU/UP/0327/1919 : AIR 1919 All 276.

CASE LAW

T.T. Antony Case

In T.T. Antony v. State of Kerala, (2001) SLT 211: III (2001) CCR 55 (SC): 2001
Cr LJ 3329; one of the important issues, inter alia, for determination was, whether
registration of a fresh case on the basis of the letter of the DGP which is in the
nature of the second FIR under section 154 of Cr PC for the same incident is valid
and can it form the basis of a fresh investigation?
Observation and decision of the Supreme Court

The Supreme Court observed and held that, sub-section (1) of section 154 of Cr PC
contain four mandates to an officer-in-charge of a police station. The first enjoins
that every information relating to commission of a cognizable offence if given orally
shall be reduced to writing and the second directs that it be read over to the
informant; the third requires that every such information whether given in writing
or reduced to writing shall be signed by the informant and the fourth is that the
substance of such information shall be entered in the station house diary. It will be
apt to note here a further directive contained in sub-section (1) of section 157 of
Cr PC which provides that immediately on receipt of the information, the officer-in-
charge of the police station shall send a report of every cognizable offence to a
Magistrate empowered to take cognizance of the offence and then proceed to
investigate or depute his subordinate officer to investigate the facts and
circumstances of the case. Sub-section (2) entitles the informant to receive a copy
of the information, as recorded under sub-section (1), free of cost. Sub-section (3)
says that in the event of an officer-in-charge of a police station refusing to record
the information as postulated under sub-section (1), a person aggrieved thereby
may send the substance of such information in writing and by post to the
Superintendent of Police concerned who is given an option either to investigate the
case himself or direct the investigation to be made by a police officer subordinate
to him, in the manner provided by Cr PC, if he is satisfied that the information
discloses the commission of a cognizable offence. The police officer to whom
investigation is entrusted by the Superintendent of Police has all the powers of an
officer-in-charge of the police station in relation to that offence.

An information given under sub-section (1) of section 154 of Cr PC is commonly

known as First Information Report (FIR) though the term is not used in the Code.
It is a very important document. And as its nickname suggests it is the earliest and
the first information of a cognizable offence recorded by an officer-in-charge of a
police station. It sets the criminal law into motion and marks the commencement
of the investigation which ends up with the formation of opinion under section 169
or 170 of Cr PC, as the case may be, and forwarding of a police report under section
173 of Cr PC. It is quite possible and it happens not infrequently that more
information than one are given to a police officer-in-charge of a police station in
respect of the same incident involving one or more than one cognizable offences.
In such a case, he need not enter every one of them in the station house diary and
this is implied in section 154 of Cr PC. Apart from a vague information by a phone
call or a cryptic telegram, the information first entered in the station house diary,
kept for this purpose, by a police officer-in-charge of a police station is the First
Information Report - FIR postulated by section 154 of Cr PC. All other information
made orally or in writing after the commencement of the investigation into the
cognizable offence disclosed from the facts mentioned in the First Information
Report are entered in the station house diary by the police officer or such other
cognizable offences as may come to his notice during the investigation, will be
statements falling under section 162 of Cr PC. No such information statement can
properly be treated as an FIR and entered in the station house diary again, as it
would in effect be a second FIR and the same can not be in conformity with the
scheme of the Cr PC. Take a case where an FIR mentions cognizable offence under
section 307 or 326, IPC and the investigating agency learns during the investigation
or receives a fresh information that the victim died, no fresh FIR under section 302,
IPC need be registered which will be irregular; in such a case, alteration of the
provision of law in the first FIR is the proper course to adopt. Let us consider a
different situation in which H having killed W, his wife, informs the police that she
is killed by an unknown person or knowing that W is killed by his mother or sister,
H owns up the responsibility and during investigation, the truth is detected; it does
not require filing of fresh FIR against H the real offender - who can be arraigned in
the report under section 173(2) or 173(8) of Cr PC, as the case may be. It is, of
course, permissible for the investigating officer to send up a report to the concerned
Magistrate even earlier than investigation is being directed against the person
suspected to be the accused.

The scheme of the Cr PC is that an officer-in-charge of a police station has to

commence investigation as provided in section 156 or 157 of Cr PC on the basis of
entry of the First Information Report, on coming to know of the commission of a
cognizable offence. On completion of investigation and on the basis of evidence
collected, he has to form opinion under section 169 or 170 of Cr PC, as the case
may be, and forward his report to the concerned Magistrate under section 173(2)
of Cr PC. However, even after filing such a report if he comes into possession of
further information or material, he need not register a fresh FIR, he is empowered
to make further investigation, normally with the leave of the Court, and where
during further investigation he collects further evidence, oral or documentary, he is
obliged to forward the same with one or more further reports; this is the import of
sub-section (8) of section 173 Cr PC.

From the above discussion it follows that under the scheme of the provisions of
sections 154, 155, 156, 157, 162, 169, 170 and 173 of Cr PC, only the earliest or
the first information in regard to the commission of a cognizable offence satisfies
the requirements of section 154, Cr PC. Thus, there can be no second FIR and
consequently there can be no fresh investigation receipt of every subsequent
information in respect of the same cognizable offence or the same occurrence or
incident-giving rise to one or more cognizable offences. On receipt of information
about a cognizable offence or an incident giving rise to a cognizable offence or
offences and on entering the FIR in the station house diary, the officer-in-charge of
a police station has to investigate not merely the cognizable offence reported in the
FIR but also other connected offences found to have been committed in the course
 of the same transaction or the same occurrence and filed one or more reports as
provided in section 173 of the Cr PC.

INVESTIGATION

P, an officer in charge of a police station receives a telephone call that a prostitute

has bought a minor girl for purpose of prostitution in a red light area within the
limits of his police station. The information relates to the commission of a
cognizable offence. Describe briefly the provisions of the Cr PC, 1973 relating to
investigation by police in this case. When does `Investigation' begin? Discuss the
procedure for investigating a cognizable offence.

According to the scheme of the Code, investigation is a normal preliminary to an

accused being put up for trial for a cognizable offence (except when the Magistrate
takes cognizance otherwise than on a police report in which case he has the power
under section 202 Cr PC to order investigation if he thinks fit). Under the Code,
investigation consists generally of the following steps:

(i) Proceeding to the spot;

(ii) Ascertainment of the facts and circumstances of the case;

(iii) Discovery and arrest of the suspected offender;

(iv) Collection of evidence relating to the commission of the offence which

may consist of:

(a) the examination of various persons (including the accused) and

the reduction of their statements into writing, if the officer thinks fit,

(b) the search of places or seizure of things considered necessary for

the investigation and to be produced at the trial; and

(v) Formation of opinion as to whether on the basis of the material collected,

there is a case fit to place the accused before a Magistrate for trial, and if so
taking the necessary steps for the same by the filing of the charge-sheet
under section 173; State of Uttar Pradesh v. Bhagwant
Kishore, MANU/SC/0066/1963 : AIR 1964 SC 221; K.M. Nanawati v. State
of Maharashtra, MANU/SC/0147/1961 : AIR 1962 SC 605 (625).

Investigation of non-cognizable offence

The powers and duties of a police officer to investigate a non-cognizable offence

has been provided under sub-section (2) of section 155 Cr PC. This sub-section
prohibits expressly the investigation by the police suo motu of non-cognizable
offences. The order of the Magistrate is a condition precedent for investigation of
such offences by a police officer; Lal Chand v. State, (1964) 2 Cr LJ 115. This
 prohibition is not absolute but is qualified by the phrase 'without the order of a
Magistrate'; Emperor v. Thakuri, MANU/OU/0080/1940 : AIR 1940 Oudh 413 (415).
Sub-section (2) of section 155 Cr PC prohibits a police officer from investigating
into a non-cognizable case without the order of a Magistrate having power to try
such case; Binay Das v. State of Orissa, (1987) 64 Cut LT 8. The permission of
Magistrate is sine qua non before commencing investigation; Ram Kumar v. State,
1976 CLR 67 (P&H).

Accused has no right to participate

When an application by the police is made to Magistrate seeking permission to

investigate a non-cognizable offence under section 155(2), the person against
whom the accusation is levelled has no right to intervene and participate in the
proceedings. Nor should the Magistrate grant permission to intervene. An accused
person does not figure at all in a judicial proceeding till process is issued; V.V.
Perumal v. State, 1982 Mad LJ (Cr) 598.

Irregularity in the order granting permission to investigate, curable

If the Magistrate had power to grant permission, the permission is not invalidated
by reason of reference to an erroneous provision of law. At the most, this would be
a mere irregularity not affecting jurisdiction and cannot vitiate the trial or
consequent conviction, if it is otherwise good; K.N.N. Ayyanger v. State, AIR 1954
MB 101 (106).

Irregularity in investigation curable

Irregularity at the stage of investigation or in the arrest of the accused cannot affect
the validity of the trial; Prabhu v. Emperor, MANU/PR/0035/1944 : AIR 1944 PC 73.
The provision of section 155(2) cannot be rendered nugatory by regarding a police
report in non-cognizable case, where there has been no previous order under
section 155(2), as a valid report under section 190(1)(b) Cr PC; Abdul Halim v.
State of West Bengal, MANU/WB/0058/1961 : AIR 1961 Cal 257.

Investigation of cognizable offence

Section 156 Cr PC provides for the police officer's power to investigate cognizable
case in the following words:

Vide section 156 of the Cr PC, any officer in-charge of a police station may,
without the order of a Magistrate, investigate any cognizable case which the
Court having jurisdiction over the local area within the limits of such police
station would have the power to inquire into or try under the provisions of
the Code. Thus, so far as cognizable offences are concerned the police officer
in-charge of a police station can conduct the investigation without waiting
for
 the orders of the Magistrate or the court. As soon as the first information
report (FIR) regarding a cognizable offence is received, the machinery for
investigation should come into motion at once. Investigation of the
cognizable offence does not require any prior permission of the Magistrate
or the Court. The only condition placed on the power of the police officer to
investigate is that the cognizable offence be such as, it has been committed
within the limits of the jurisdiction of the court which take cognizance of the
matter and try the case. Under this section, the proceeding of police officer
in any such case shall not at any stage be called in question on the ground
that the case was one which such officer was not empowered under this
section to investigate.

Irregularities in investigation: effect of

Irregularities in the conduct of investigation are not intended to vitiate the trial
before the Courts; State v. Dhanpat, 1966 RLW 122. The protection available to an
officer-in-charge of a police station under section 156(2) is also available to a
superior of that officer exercising his powers of investigation under section 36; Soni
N. Prabhudas v. State of Gujarat, 1983 Cr LJ 934. The objections viz.,

(i) that the Police Officer investigating the offence has no territorial
jurisdiction, and

(ii) that he is inferior in rank to the officer-in-charge of a police station fall

under section 156(2) and cannot be entertained; State of Punjab v. Piara
Singh, 1978 Cr LJ 178 (P&H).

Where investigation is going on, it cannot be interfered with; Suraj Bhan Sarad
Kumar v. Delhi Administration, 1981 Ch. Cr C 53. The provision in sub-section (2)
makes it abundantly plain that want of authority in the investigating officer
investigating a case under sub-section (1) will not vitiate the trial started on his
report or complaint; Public Prosecutor v. Hatam Bhai, AIR 169 AP 99.

Magistrate may direct investigation

Can a Magistrate direct investigation?

According to sub-section (3) of section 156, any Magistrate empowered to take

cognizance of an offence under section 190 may make order for investigation.
Where a Magistrate orders investigation by the police before taking cognizance
under section 156(3) of the Code and receives the final report from the police, he
has power to issue notice to the complaint, record his statement and the statements
of other witnesses and issue process under section 204 of the Code.

Before section 156(3) Cr PC is pressed into service by a Magistrate, he has to be

satisfied on the allegations made in the complaint that an offence has been
 committed and he may take cognizance of an offence on such complaint; Arun
Shourie v. State, 1989 Raj Ch Crl 25. Where the Magistrate has already taken
cognizance, investigation can be ordered only under section 202 Cr PC; State of
Assam v. Abdul Noor, MANU/SC/0192/1970 : AIR 1970 SC 1365.

The power under section 156(3) Cr PC can be exercised even after the submission
of a report under section 173, which would also mean that it is open to the
Magistrate not to accept the conclusion of the police officer and direct further
investigation; H.S. Bains v. State, MANU/SC/0126/1980 : AIR 1980 SC 1883.

Alternatively Magistrate can choose to take cognizance

Where a Magistrate chooses to take cognizance, he can adopt any of the following
alternations:

(a) He can pursue the complaint and if satisfied that there are sufficient
grounds for proceeding, he can straightaway issue process to the accused
but before he does so, he must comply with the requirements of section 200
Cr PC and record the evidence of the complainant or his witness;

(b) The Magistrate can postpone the issue of process and direct an inquiry
by himself; and

(c) The Magistrate can postpone the issue of process and direct an enquiry
by any other person or an investigation by the police; Tula Ram v. Kishore
Singh, MANU/SC/0163/1977 : AIR 1977 SC 2401.

Procedure of investigation

The procedure of investigation has been provided under section 157 Cr PC.

157. Procedure for investigation

(1) If, from information received or otherwise, an officer-in-charge of a

police station has reason to suspect the commission of an offence which he
is empowered under section 156 to investigate, he shall forthwith send a
report of the same to a Magistrate empowered to take cognizance of such
offence upon a police report and shall proceed in person, or shall depute one
of his subordinate officers not being below such rank as the State
Government may, by general or special order, prescribe in this behalf, to
proceed, to the spot, to investigate the facts and circumstances of the case,
and, if necessary, to take measures for the discovery and arrest of the
offender:

Provided that-
 (a) when information as to the commission of any such
offence is given against any person by name and the case is
not of a serious nature, the officer-in-charge of a police station
need not proceed in person or depute a subordinate officer to
make an investigation on the spot;

(b) if it appears to the officer-in-charge of a police station that

there is no sufficient ground for entering on an investigation,
he shall not investigate the case:

(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to
sub-section (1), the officer-in-charge of the police station shall state in his
report his reasons for not fully complying with the requirements to that sub-
section, and, in the case mentioned in clause (b) of the said proviso, the
officer shall also forthwith notify to the informant, if any, in such manner as
may be prescribed by the State Government, the fact that he will not
investigate the case or cause it to be investigated.

Discuss the Procedure of investigation under the code?

This section lays down the duties of the officer-in-charge of a police station. Section
157(1) of the Cr PC prescribes the procedure for the investigation of an offence.
Under this section if the police officer-in-charge of a police station has reason to
suspect the commission of an offence which he is empowered to investigate under
section 156, he shall forthwith send a report of the same to a Magistrate empowered
to take cognizance of such offence upon a police report. After doing so, such police
officer shall proceed in person, or shall depute one of his subordinate officers not
below the rank prescribed in this behalf, to proceed to the spot, to investigate the
facts and circumstances of the case and if necessary, to take measures for the
discovery and arrest of the offender.

There is some discretion allowed to a police officer acting under this section. Thus
if the first information report gives the name of the person against whom the report
is lodged and the offence is not of a serious nature, the police officer need not
proceed in person or depute a subordinate officer to make an on the spot
investigation. If the officer-in-charge of a police station is of the opinion, or if it so
appears to him, that there is no sufficient ground for an investigation, he shall not
investigate the case.1

Where the police officer does not proceed with the investigation of the case on
receipt of the first information report, he shall record reasons for not fully complying
with the requirements of this section, and shall also forthwith notify to the
informant, if any, in such manner as may be prescribed, the fact that he will not
investigate the case or cause it to be investigated.2
 The police officer acting under section 157(1) is required to send a report to the
Magistrate having jurisdiction over the matter, stating that a cognizable offence is
suspected to have been committed and that he has taken up the investigation
himself or has deputed one of his subordinates to investigate the case. The object
of the report is to enable the Magistrate to have an early information of any serious
case so that he can act himself if need be. The failure to send such a report is a
serious neglect of duty on the part of the police officer and is likely to result in
failure of justice. According to their Lordships of Patna High Court in Hafiz
Mohammad v. Emperor, MANU/BH/0132/1931 : AIR 1931 Pat 150; such failure on
the part of the police officer lays the police open to the suspicion of concocting false
evidence. However, in the absence of any prejudice to be accused, the omission to
send the report of the occurrence to the Magistrate does not vitiate the trial.

In Mahmood v. State of Uttar Pradesh, MANU/SC/8108/2007 : AIR 2008 SC 515,

the Supreme Court held that there is no universal rule which can be laid down as
to the time required by the station house officer for sending special report to the
magistrate after recording FIR. Each case turns on its own facts. However, in Aqeel
Ahmad v. State of Uttar Pradesh, MANU/SC/8435/2008 : AIR 2009 SC 1271, the
Supreme Court held that the report to be forwarded to the Magistrate with earliest
dispatch so as to avoid possibility of improvement in prosecution case and to enable
the Magistrate to have watch on progress of the investigation.

In Beli Ram v. State of Himachal Pradesh, 1980 Cr LJ 391; it was observed that,
section 157 of the Code requires of the police officer to immediately commence
investigation when he has reason to suspect the commission of cognizable offence
within the jurisdiction of his police station. It is of utmost important that the police
must be prompt in the investigation of cognizable offence as delay therein is likely
to cause serious prejudice either to the accused or to the prosecution. Such delay
would certainly not be conducive for either the prevention or the detention of the
crime which are avowed objects of the Police Act.

________________

1. Vide provisions (a) and (b).

2. Vide section 157(2).

Object of investigation

In Shukul v. Emperor, 34 Cr LJ 689; their Lordships of Allahabad High Court

observed the following objects of investigation with regard to administration of
justice:
 (i) the duty of the police in the investigation of any crime is to discover the
truth and not simply to obtain evidence for the purpose of securing a
conviction.

(ii) it is the duty of prosecution to bring out in evidence everything in favour

of an accused person and to lay before the court all the evidence even
though some of that may result in an acquittal.

(iii) it is the duty of the committing Magistrate and the trial judge to be
solicitous in the interest of the accused. This is especially so in riot cases
where the accused are generally humble and ignorant, unable to defend
themselves and often inadequately in the Courts.

Difference between section 154 and section 157, Cr PC

Following are the differences between sections 154 and 157 Cr PC:

* That whereas every information covered by the section 154 must be

reduced to writing as provided in that section, it is only the information which
raises a reasonable suspicion of the commission of a cognizable offence
within the jurisdiction of a police officer to whom it is given which compels
actions under the latter section, although, of course, a report would be sent
to the Magistrate; Punjab Circular, Chap XLV 171.

* Upon receiving the said information, the officer-in-charge of the police

station shall forthwith send a report of the suspected commission of an
offence to a Magistrate empowered to take cognizance of such offence upon
a police report.1

* It is only, thereafter, and not till then that the investigation into

the facts and circumstances of the case starts. Thus, under the

Code of Criminal Procedure, the stage of the first information (section 154)
and the stage at which the investigation commences (section 157) are
distinct stages; Ram Rijhumal v. State, MANU/MH/0036/1958 : AIR 1958
Bom 125 (132).

* Where the FIR does not name any person as accused and the investigation
proceeds against person not known, there is no necessity to send further
report under section 157 if the accused is discovered; Chandrashekhanan,
M.R. v. State of Karnataka, (1978) 2 Kar LJ 273.

__________________

1. Vide section 157.

Delegation and withdrawal of power of investigation

Under section 157 Cr PC, the officer-in-charge is empowered to delegate his own
power of investigation to one of his subordinate officers.

In P.L. Jalan v. Gour Mohan Chandra, 1969 Cr LJ 808 (810); their Lordships of
Calcutta High Court observed that, the officer-in-charge of the police station could
certainly withdraw the investigation from the subordinate officer to whom
investigation had been made over and transfer the investigation to some other
officer subordinate to him or to take up the investigation himself. The power of
investigation involves also a power of withdrawing the delegation.

Power to hold investigation or preliminary inquiry

Section 159 of the Code provides for the power of a Magistrate to hold investigation
or preliminary inquiry.

This section is primarily meant to give the Magistrate the power of directing an
investigation in case in which the police decide not to investigate the case under
the proviso to section 157(1) Cr PC. It is only in those cases that, if the Magistrate
thinks fit, he may himself make an investigation or direct a subordinate Magistrate
to hold a preliminary inquiry or otherwise to dispose of, the case in the manner
provided in this Code. This section is really intended to give a limited power to the
Magistrate to ensure that the police investigate all cognizable offences and do not
refuse to do so by abusing the right granted for certain limited cases of not
proceeding with the investigation of the offence; S.N. Sharma v. Bipen Kumar
Tiwari, MANU/SC/0182/1970 : AIR 1970 SC 786.

The section does not empower the Magistrate to interfere with the investigation of
an offence by the police and take over the investigation himself or entrust it to any
subordinate Magistrate; Lachmanan Chetti v. King-Emperor, (1904) 1 Cr LJ 539
(540).

Word 'direct': meaning of

The word 'direct' would connote that the police are not engaged in the investigation
and the Magistrate orders them to do so. The word 'direct', therefore, would be
meaningless in relation to an investigation by the police which is already in
progress. It would, therefore, cover only those cases in which the investigation is
not done by the police and the Court directs them to investigate; S.N. Sharma v.
Bipen Kumar Tiwari, MANU/SC/0182/1970 : AIR 1970 SC 786.

Preliminary inquiry: meaning of

'Investigation' is a word confined to proceedings of the police or person other than

Magistrate, and that 'inquiry' is the word appropriate to the proceedings of
 Magistrates prior to trial. The expression 'preliminary inquiry' in section 159 Cr PC
has been used in a different sense. It refers to inquiries under Chapter XVIII prior
to commitment to the sessions, which were held after the police investigation was
complete after a charge-sheet was drawn up and after the accused was forwarded
under custody under section 170 to the Magistrate empowered to take cognizance
of the case; Tangedupalle Pedda Obigadu v. Pullasi Pedda, AIR 1922 Mad 40.

Examination of witnesses by the police

Whether an investigating officer can examine a witness of a case?

Section 160 of the Code invests powers to the police officer to require attendance
of witnesses.

Under section 160 of Cr PC, any police officer making an investigation may by order
in writing require the attendance of any person being within the limits of his own or
any adjoining Station who appears to be acquainted with the facts and
circumstances of the case, provided however, no male person under the age of 15
years or women shall be required to attend at any place other than the place in
which such male person or woman resides.

Such persons whose attendance has been ordered by the police officer may be paid
by reasonable expenses in this behalf.

The section empowers the police officer to summon a witness only during an
investigation, i.e., an investigation in respect of a crime under this Chapter. But for
the provisions of this section, the police will have to go to the persons who are
acquainted with the facts of the case without sending for them; Manicka Reddy (in
re:), MANU/TN/0430/1967 : AIR 1968 Mad 225.

Under section 161 of Cr PC, any police officer making an investigation under the
provisions of the Code or any other police officer not below the rank prescribed by
the State Government may examine orally any person supposed to be acquainted
with the facts and circumstances of the case. Such person shall be bound to answer
truly all question relating to such case put to him by such officer. But the persons
giving any oral testimony may not answer any question which might have a
tendency to expose him to a criminal charge or to a penalty or forfeiture [section
160(2)]. The police officer may reduce the oral statement of any witness to writing
or may also be recorded by audio-video electronic means.

Expression 'any person': meaning of

An order can be made requiring the attendance of 'any person' (except women and
males under 15 years of age). The expression 'any person', in its ordinary meaning,
including any person, though he might thereafter, become an accused.
Investigation in crime often includes examination of a number of persons none of
 whom or all of whom might be suspected at the time. The words 'any person' will,
therefore, include any person who may be possibly not even suspected then but
subsequently be accused of the crime; Pakala Narayana Swami v.
Emperor, MANU/PR/0001/1939 : AIR 1939 PC 47.

Statement recorded under this section is not substantive evidence

A statement made to the police officer by any person examined in the course of
investigation recorded under section 161 of the Code is not and cannot be treated
as substantive evidence except when falling within the provisions of Clause (1) of
section 27 of the Indian Evidence Act. It may be used only for the purpose of
contradicting the evidence of the prosecution witnesses and not for the purpose of
corroborating their evidence nor for contradicting a person examined in the course
of investigation who later figures either as a court-witness or as a defence witness;
Shamim v. State of Bihar, 1986 Cr LJ 1383.

Privileges of persons examined by the police

What are the privileges of persons examined by the police?

Following are the privileges of persons examined by the police:

(i) A person examined under section 161 Cr PC by the police with respect to
an offence with which he may himself be charged and convicted is not bound
to speak the truth and in such a case, conviction for giving false evidence
would be illegal.

(ii) A statement made in answer to a question put by a police officer under

section 161 Cr PC in course of investigation made by him is privileged and
cannot be made the foundation of a charge of defamation; Hittu Bansi v.
Sheolal Dinaji, MANU/NA/0128/1947 : AIR 1948 Nag 243.

(iii) No suit for damages shall lie for words spoken by any person in answer
to the questions put by the investigating officer; Methu Ram Das v.
Jagannath Dass, ILR 28 Cal 794.

(iv) A statement made by a person in answer to questions put by the police

officer investigating the case cannot be made the basis of a charge under
section 182 IPC. To give 'information' in section 182, IPC means to volunteer
information; Emperor v. Nga Aung Po, 2 Cr LJ 474.

(v) A person answering questions put to him by the police cannot be

convicted of an offence under section 211 IPC; Chinna Ramana Gowd v.
Emperor, ILR 31 Mad 506.

Mode of recording answer

 Section 161(3) IPC gives discretion to a police officer to reduce into writing any
statement made to him during investigation. If he exercises his discretion in favour
of reducing the statement into writing, he is bound to make a separate and true
record of the statement of each person whose statement he records. The matter
does not rest with his direction here; Shive Sharnagat v. State, AIR 1953 Bhopal
21 (23). Failure to comply with the requirements of section 161(3) might effect the
weight to be attached to the evidence of the witness, it does not render it
inadmissible; Tilakeshwar v. State of Bihar, MANU/SC/0035/1955 : AIR 1956 SC
238 (240).

Use of statements in evidence

Value of the statements made before the police and its use as evidence have been
discussed in section 162 Cr PC.

This section deals with the use of statements made to a police officer under section
161 Cr PC. Under the Indian Evidence Act, 1872, former statements made by a
witness can be used to contradict him,1 to impeach his credit,2 to corroborate
him,3 or to refresh his memory.4 However, section 162 does not apply to extra-
judicial confession; State v. Ram Singh, 1973 Cr LJ 150 (HP).

Under section 162(1), the person making any statement in connection with the
investigation being conducted by a police shall not sign the statement if it is reduced
to writing, nor can this statement or any other record thereof can be used for any
purpose (except those mentioned) at any inquiry or trial in respect of any offence
under investigation at the time when such statements were made.

______________________

1. Vide section 145 of Evidence Act.

2. Vide section 155 of Evidence Act.

3. Vide section 157 of Evidence Act.

4. Vide section 159 of Evidence Act.

Word 'statement': meaning of

The word statement under section 161 of the Code, includes both oral and written
statement and it will also include signs and gestures; A.T. Baby Warghese v. State
of Kerala, 1981 Cr LJ 1165. Though word 'statement' has several meanings, but
section 161 of the Code shows out only statements. written or oral, express or
implied, made by a witness to the police during the course of investigation, and not
what the witness saw or did. Conduct must be distinguished from speech; Mor
Mohamud v. Emperor, AIR 1940 Sind 168.
Medical tests

The powers of the police to take statements of the accused or other detainees who
are alleged to have committed some offence are quite wide. Not only can the police
officials arrest and detain any person accused of an offence, they can interrogate
him, record his statement and the statements of various eyewitnesses, and also
under section 53 Cr PC seek medical examination of such persons. There was no
such provision in the earlier code, but in view of the medico-legal advances, this
had become imperative and the provision was included in the Cr PC. Medical
Examination of all sorts, blood-test, test of semen, sputum and urine etc., has
become a routine. The only proviso is that the medical test be conducted by a
registered medical practitioner at the request of a Police Officer not below the rank
of a Sub-Inspector and in case of females, such tests shall be carried out by the
woman registered medical practitioner.

Evidentiary value of statement

What is the evidentiary value of the statement made by any person to an

investigating officer?

Section 162(1) provides that no statement made by any person to a police officer
in the course of an investigation shall, if reduced to writing be signed by the person
making it, nor shall any such statement or any record thereof, whether in a police
diary or otherwise, or any part of such statement or record, be used for any
purpose...at any inquiry or trial in respect of any offence under investigation at the
time when such statement was made.

It is clear that the statements made to the police during the investigation of an
offence cannot be, by virtue of this section, used at any other inquiry or trial. This
ban relates not only to the trial or inquiry in respect of the offence in relation to
which the statements were made, it also prohibits the use of such statement at the
inquiry or trial in respect of any other offence which was under investigation by the
police officer at the time when such statements were made.

This ban is, however, lifted to some extent by the proviso to section 162(1) which
provides for a very limited use of such statements. It says when any witness whose
statement has been reduced into writing, is called for the prosecution in such inquiry
or trial, any part of his statement, if duly proved may be used by the accused and
with the permission of the court, by prosecution, to contradict such witness in the
manner provided by section 145 of the Indian Evidence Act, and when any part of
such statement is so used, any part thereof may also be used in the re-examination
of such witness, but for the purpose only of explaining any matter referred to in his
cross-examination.

Recording of confessions and statements

What is the procedure of recording of confession?

Provisions regarding recording of confessions and statements have been given in

section 164 Cr PC.

"164. Recording of confessions and statements.-(1) Any Metropolitan

Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in
the case, record any confession or statement made to him in the course of
an investigation under this Chapter or under any other law for the time being

in force, or at any time afterwards before the commencement of the inquiry or trial:

Provided that any confession or statement made under this sub-section may
also be recorded by audio-video electronic means in the presence of the
advocate of the person accused of an offence:

Provided further that no confession shall be recorded by a police officer on

whom any power of a Magistrate has been conferred under any law for the
time being in force.

(2) The Magistrate shall, before recording any such confession, explain to the
person making it that he is not bound to make a confession and that, if he does so,
it may be used as evidence against him; and the Magistrate shall not record any
such confession unless, upon questioning the person making it, he has reason to
believe that it is being made voluntarily.

(3) If at any time before the confession is recorded, the person appearing before
the Magistrate states that he is not willing to make the confession, the Magistrate
shall not authorise the detention of such person in police custody.

(4) Any such confession shall be recorded in the manner provided in section 281
for recording the examination of an accused person and shall be signed by the
person making the confession; and the Magistrate shall make a memorandum at
the foot of such record to the following effect:-

"I have explained to (name) that he is not bound to make a confession and
that, if he does so, any confession he may make may be used as evidence
against him and I believe that this confession was voluntarily made. It was
taken in my presence and hearing, and was read over to the person making
it and admitted by him to be correct, and it contains a full and true account
of the statement made by him.

(Signed) A.B.

Magistrate".
(5) Any statement (other than a confession) made under sub-section (1) shall be
recorded in such manner hereinafter provided for the recording of evidence as is,
in the opinion of the Magistrate, best fitted to the circumstances of the case; and
the Magistrate shall have power to administer oath to the person whose statement
is so recorded.

(6) The Magistrate recording a confession or statement under this section shall
forward it to the Magistrate by whom the case is to be inquired into or tried."

This section should be read together with sections 24, 25, 26, 27, 28, 29 and 30 of
the Evidence Act. If so read, we find that:

(i) a confession shall not be made to a police officer;

(ii) if a person in police custody desires to make a confession , he must do

so in the presence of a Magistrate;

(iii) the Magistrate shall not record it unless he is, upon enquiry from the
person making it, satisfied that it is voluntary;

(iv) when the Magistrate records it, he shall record it in the manner provided
for in section 164; and

(v) only when so recorded, the confession will become relevant and
admissible in evidence; King v. Saw Min, AIR 1939 Rang 219 (222).

Vide section 164(1), any Metropolitan Magistrate or Judicial Magistrate, whether he

has jurisdiction in the case or not, may record any confession or statement made
to him in the course of an investigation under the provisions of this code or any
other law, or at any time afterwards but before the commencement of the inquiry
or trial.

The confession can be recorded by audio-video electronic means in presence

advocate of accused.

This section specifically prohibits any police officer from recording any confession
or statement, even if the power of a Magistrate has been conferred on such a police
officer.

Under section 164(2), the Magistrate is required, before recording any such
confession, to explain to the person making it that he is not bound to make a
confession and that, if he does so, it may be used as evidence against him; and the
Magistrate shall not record such confession, unless upon questioning the person
making it, he has a reason to believe that it is being made voluntarily.

Further, sub-section (3) says that if at any time before the confession is recorded,
the person appearing before the Magistrate states that he is not willing to make the
 confession, the Magistrate shall not authorise the detention of such person in police
custody.

The confession recorded under this section has to be on a proper form and in the
prescribed manner. It has to be certified and signed by the Magistrate who recorded
confession. The fact, that such statement could be used against such person was
not bound to make a confession, has to be certified by the Magistrate.

Distinction between recording of statements of accused and of witnesses

There is a vital distinction between recording statements of accused persons and

the recording of statements of witnesses. The same precautions which are
prescribed for recording the confession of accused persons need not be observed
while recording the statements of witnesses, and, therefore, it is not necessary to
exclude the police from the court, though the Magistrates have the power, if they
think it necessary to ensure the voluntary character of the witnesses' statements
and have any reasons to apprehend that the police are exercising influence over
them, to exclude the police or in fact any other person from the court during their
examination under this section. But they do not require to do so by law and the
practice is likely to lead to the statements of witnesses being incomplete, as only
the police who have investigated the case know the information which the witnesses
are likely to give and the Magistrate without their help will not be able to elicit all
that the witnesses are able to speak about. In such a case, it is difficult to discount
the evidence of the witnesses in Court if their statements under this section contain
any omissions and are, therefore, not fully corroborative of the evidence in Court;
Pullamma v. Emperor, 1932 Mad Cr C 67.

Complaint by witness in case of threatening to him

Section 195A of the Code empowers the witness to file a complaint in relation to an
offence under section 195A of the Indian Penal Code which provides for the
punishment for threatening any person to give false evidence. Section 195A of the
Criminal Procedure Code reads as:

"195A. Procedure for witnesses in case of threatening, etc.-A witness or any

other person may file a complaint in relation to an offence under section
195A of the Indian Penal Code (45 of 1860)."

Search by police officer

Section 165 of the Code gives power to search and seizure to the police officer
conducting investigation into any offence.

Under section 165(1), whenever an officer-in-charge of a police station or a police

officer making an investigation has reasonable ground for believing that any offence
which he is authorised to investigate may be found in any place within the limits of
 the police station of which he is in-charge, or to which he is attached, and that such
things cannot in his opinion be otherwise obtained without undue delay, such officer
may, after recording in writing the grounds of his belief and specifying in such
writing, so far as possible, the thing for which search is to be made, search, or
cause search to be made, for such thing in any place within the limits of such
station.

Under sub-section (2), the search is to be, if practicable, conducted in person by

such police officer.

Sub-section (3) provides for a situation when the police officer in-charge of a police
station is unable to conduct the search in person and there is no person competent
to make the search present at the time. In such a situation, he may, after recording
in writing his reasons for so doing, require any officer subordinate to him to make
the search, under a written order, specifying the place to be searched. However,
the search made under this section shall be, as far as may be, in accordance with
the provisions of section 100 which relates to search-warrants.

Sub-section (4) provides that provisions of this code as to search warrants and the
general provisions as to searches contained in section 100, apply to a search made
under this section.

Sub-section (5) provides that copies of any record made under this section shall be
immediately sent to the nearest Magistrate empowered to take cognizance of the
offence, and the owner or occupier of the place searched shall, on application, be
furnished free of cost, with a copy of the same by the Magistrate.

Conditions imposed under this section

The power to search is incidental to the investigation of the offence which the officer
is authorised to investigate; State of Assam v. Upendra Nath Rajkhowa, 1975 Cr LJ
354 (Guj). Under section 165, four conditions have been imposed on the police
officer:

(i) the police officer must have reasonable ground for believing that anything
necessary for the purpose of an investigation of an offence cannot, in his
opinion, be obtained otherwise than by making a search without undue
delay;

(ii) he should record in writing the grounds of his belief and specify in such
writing as far as possible the things for which the search is to be made;

(iii) he must conduct the search, if practicable, in person; and

(iv) if it is not practicable to make the search himself, he must record in

writing the reasons for not himself making the search and shall authorise in
 writing, a subordinate officer to make the search after specifying in writing
the place to be reached, and, so far as possible, the things for which the
search is to be made.

In State of Rajasthan v. Rehman, MANU/SC/0181/1959 : AIR 1960 SC 210; it was

observed that, in the matter of a search under this section, the legislature has laid
down the following safeguards:

(i) the empowered officer must have reasonable grounds for believing that
anything necessary for the purpose of investigation into an offence (or where
the search is in connection with the liability to pay tax, for the purpose of
recovery of tax) may be found in any place;

(ii) he must be of the opinion that such thing cannot be otherwise got without
undue delay;

(iii) he must record in writing the grounds of his belief; and

(iv) he must specify in such writing so far as possible the thing for which the
search is made.

In State of Madhya Pradesh v. Paltan Mallah, MANU/SC/0050/2005 : AIR 2005 SC

733, the Supreme Court held that alleged illegality of search by investigating officer
does not vitiate seizure unless it had caused prejudice to the accused and evidence
regarding seizure cannot be discarded merely because the witness accompanying
search and seizure was not from the same locality.

Whether search ultra vires the Constitution?

There is nothing in Article 20 of the Constitution or in any of its other articles to

prohibit the police from searching either the person of the accused or his premises
in the manner laid down by the Code. Nor are the powers of the Magistrate to issue
a search warrant in the circumstances set out in the Code abrogated by the
Constitution; Sorualingam Chettiar (in re:), MANU/TN/0279/1955 : AIR 1955 Mad
685.

Finally, this must be noted that the refusal or neglect to attend or to witness a
search under this section shall be deemed to be an offence under section 187 of the
Indian Penal Code.

Difference between seizure and impounding

There is difference between seizing of a document and impounding a document. A

seizure is made at a particular moment when a person or authority takes into his
possession some property which was earlier not in his possession. Thus, seizure is
done at particular moment of time, However, if after seizing of a property or
 document the said property or document is retained for some period of time, when
such retention amounts to impounding of the property/or document; Suresh Nanda
v. C.B.I., MANU/SC/7020/2008 : AIR 2008 SC 1414.

CASE LAWS

Shyam Lal Case

Shyam Lal v. State of Madhya Pradesh, MANU/SC/0248/1972 : AIR 1972 SC 886;

is illustrative of the powers of the police to make search and seizure and also of the
procedure which they have to follow while conducting such searches, and the
consequences for omission to follow such prescribed procedure.

Facts:

Circle Inspector Ranjit Singh received a report from a lorry owner Jagat
Singh that the Barrier Inspector Shyam Lal (the appellant) was demanding
a bribe from his lorry driver and that in order to pressurize him further had
seized his driving licence.

The Circle Inspector laid a trap to catch Shyam Lal red handed while
accepting the bribe demanded by him. Two other accused Narayan Singh
and Udho Prasad working in the same barrier office were also a party to the
acceptance of the bribe. The marked currency notes were accepted by the
accused Narayan Singh.

Thereafter, the Circle Inspector disclosed his identity and after having his
person searched, went inside the inner apartment and recovered the
currency notes lying beneath an overcoat. The notes were seized. While he
was preparing the punchnama, accused Udho Prasad arrived on the scene
and started taking the Circle Inspector to task for having entered his office
without permission or reference to him. He then asked accused Narayan
Singh why he did not sign the seizure memo. Accused Shyam Lal also
reprimanded the Police Officer and questioned his authority. The Circle
Inspector asserted that the authority was conferred upon him to make a
search. But accused Shyam Lal asked him to give him in writing that he had
entered the Barrier Office without the permission of the person in-charge
otherwise he would not be allowed to go out. The Circle Inspector then
assured him and went back to the Dak Bungalow.

He was allowed to leave, and he started getting out without getting the
signature of the accused Narayan Singh on the seizure memo. But as soon
as he came to the road, Udho Prasad again insisted on the writing being
given whereupon Shyamlal caught the Circle Inspector by his waist and
forcibly lifted him, took him to the barrier office and threw him on a chair.
 There under threats, the Circle Inspector was compelled to give it in writing
that he had made the search. It was only thereafter that he was allowed to
go.

The three accused were prosecuted and brought to trial on various offences.

Observations of the Supreme Court

It was observed by the Apex Court that, on behalf of the appellants it was contended
that notwithstanding the findings of both the courts that the appellants had
wrongfully restrained PW-1 and also assaulted and used criminal force against him,
the several acts alleged against them do not constitute any offence as they had a
right to obstruct a search made in contravention of the provision of section 165 Cr
PC which made the search illegal.

It was accordingly submitted that when reasons are not recorded as required by
section 165, Cr PC for making a search during investigation and as PW-1 did not,
as required under section 103, Cr PC give a copy of the List of the currency notes
seized from Narayan Singh, the entire investigation is vitiated and consequently
obstruction caused in the subsequent process of investigation will not constitute
any offence.

Their Lordships observed that there was a fallacy in these submissions. That the
investigation commenced with the information of a cognizable offence, and a trap
was laid and PW-1 proceeded to the barrier for laying a trap and entered the barrier
office to make a search, does not admit of doubt.

The non-conformity with any of the requirements of that provision (section 105)
must be confined to that part of the investigation which relates to the actual search
and seizure but once the search and seizure is complete that provisions ceases to
have any application to the subsequent steps in the investigation.

It may be that an obstruction during the course of a search not conducted in

conformity with the provisions of section 165 Cr PC might be justified but there is
no warrant for the further submission that the person in whose premises a search
is made or from whom articles are seized is entitled to act in the manner the
appellants have acted in preventing PW-1 from discharging his official duties.

Decision

It was held that, even if the search is illegal, it does not justify any obstruction or
other criminal acts committed against the person who had conducted the search.
By no stretch of logic or reason can the justification for obstruction during the course
of search in contravention of the provision of section 165 entitle a person to force
a public servant or any other person do to acts contrary to their volition.
 With these observations, their Lordships dismissed the appeal but set aside the
conviction of the appellant under section 332 on the ground that they were not
charged with that offence and, therefore, they are entitled to an acquittal as they
were prejudiced thereby. All other convictions and sentences were upheld.

Nazir Ahmed Case

In Nazir Ahmed v. King Emperor, MANU/PR/0020/1936 : AIR 1936 PC 253; the

facts were that on 11th October, 1934 night, the house of one Guran Das was
broken into and a theft was perpetrated. The villagers attempted to intercept the
dacoits. There was some shooting by the dacoits with the result that one villager
was wounded and died.

The appellant and some other men were later apprehended and kept in custody. At
the stage of shooting during robbery, none had identified the dacoits, but a camel
driver who had met them later in the night gave evidence and identified the
appellant as one in the company of another accused.

Another evidence was of a first class Magistrate who was entitled to proceed under
section 164 under the order of the District Magistrate, and he visited the scene of
the dacoity. The accused in handcuffs also accompanied him. According to the
Magistrate, after his arrival at the scene, the appellant confessed his participation
in the robbery and finding a revolver in the course of his pursuit.

At the sessions, the appellant denied having made any confession, but the evidence
of the Magistrate was that he (the appellant) had confessed. The additional judge
acting on the admission found the appellant guilty and therefore sentenced him to
death. On appeal, the High Court held the evidence admissible in the form in which
it had been given, and confirmed the sentence.

Decision by the Privy Council

The main point for consideration was whether the oral evidence of a magistrate was
admissible in evidence.

It was contended on behalf of the respondent that the evidence given by the
Magistrate is not to be confused with any evidence by virtue of section 164 and it
had nothing to do with sections 17, 21, 24 or 26 of the Evidence Act and it was just
like any other evidence tendered by any person other than a Magistrate. It was also
argued that the matter would, in such a case, not be one which had to be reduced
into writing.

On behalf of the appellant, it was contended that a Magistrate was very much
different from a private person and that his case and his powers were dealt with
and were delimited by the Cr PC and if this special act dealing with a special subject-
matter set a limit to the powers of the Magistrate, the general act could not be
 called in aid so as to allow him to do what he could not do under the special Act i.e.
Cr PC.

Their Lordships observed that whether a Magistrate records any confession, it is a

matter of duty and not of obligation. The role which applies is that where a power
is given to do a certain thing in a certain way, the thing must be done in that way
or not done at all. It was observed that the procedure for recording confessions is
clearly prescribed in that how Magistrate during investigations is supposed to record
the confessions. In their Lordships' view, it would be unfortunate if magistrates
were asked generally to act rather as police officers than as judicial persons, to be,
by reason of their position, freed from the disability that attaches to police officers
under section 162 of the Code, and to be, at the same time, free notwithstanding
their position as Magistrate, from any obligation to make records under section 164
Cr PC.

With these remarks, their Lordships allowed the appeal.

Tehsildar Singh Case

In Tehsildar Singh v. State of Uttar Pradesh, AIR 1956 SC 1012; the facts of the
case were that the appellants, members of the notorious gang of dacoits came to
know that two persons Asa Ram and Bankey Chand acted as informers against the
gang. They organised a raid with a view to do away with these two persons. They
attacked a party of men, who had gathered for certain celebrations, where these
informers were also participating. The informers, however, escaped. Three persons
were killed. Deceased Bharat Singh's face resembled Asa Ram's and the dacoits
declared that Asa Ram was killed.

When one of the prosecution witnesses was in the witness box, the counsel for
appellants put to him the following two questions in cross-examination:

1. "Did you state to the investigating officer that the gang rolled the dead
bodies of Nathi, Saktu and Bharat Singh to scrutinize them? Did you tell him
that the face of Asa Ram resembled that of the deceased Bharat Singh?"

2. Did you state to the investigating officer about the presence of the gas
lantern?

The Session Judge disallowed these questions. The appellants were convicted and
their conviction was confirmed by the High Court. Hence appeal.

Contentions of the parties

It was contended on behalf of the appellants that section 162 of Code of

Criminal Procedure by its own operation:
 (1) attracts the provision of section 145 of the Evidence Act and
under the latter section, the whole vista of cross-examination on the
basis of the previous statement in writing made by the witness before
the police is open to the accused.

(2) The word "contradiction" is of such wide connotation that it takes

in all material omissions, and a court can decide whether these in any
such omission as to amount to contradiction, only after 'the question
is put', answered and the relevant statement or part of it, is marked.

In view of the above, it was contended that the High Court erred in holding
that these two questions were intended to be put orally in cross-examination
to the prosecution witnesses whereas the advocate for the accused intended
to put to the witnesses many other omissions to establish that there was a
development in the prosecution case from time to time. The accused,
therefore, had no proper opportunity for cross-examination.

Decision

Their Lordships observed that the answers to the above contention depend upon
the true interpretation of sections 161 and 162 of Cr PC and the provisions to section
162.

The procedure prescribed for "contradicting" a witness by his previous statement

made during investigation is that if it is intended to contradict him by the writing,
his attention must, before the writing can be proved, be called to those parts which
are to be used for the purpose of contradicting him.

The proviso to section 162 only enables the accused to make use of such statements
to contradict a witness in the manner provided by section 145 of the Evidence Act.
It would be doing violence to the language of the proviso if the said statement be
allowed to be used for the purpose of cross examining a witness within the meaning
of section 145 para 1 of the Evidence Act.

The contradiction under section 163 should be between what a witness asserted in
the witness box and what he stated before the police officer, and not between what
he said he had stated before the police officer and what he actually said before him.

In such a case, the question could not be asked at all: only questions to contradict
can be put and the questions here posed were not to contradict: they lead to an
answer which is contradicted by the police statement.

Hence the appeal was dismissed.

Abhinandan Jha Case

 In Abhinandan Jha v. Dinesh Mishra, AIR 1961 SC 117; the fact was, Dinesh Mishra,
respondent lodged an FIR at the police station that he saw the house of one A,
situated on the northern side of house, burning, stating, inter alia, that he saw the
petitioners Abhinandan Jha & others running away from the scene.

The police made investigation and submitted what is called a 'final report' under
section 173(2) of the Code of Criminal Procedure, 1973. The SDM received this
report and meanwhile, the respondent filed a protest petition challenging the
correctness of the report submitted by the police. The Magistrate recalled the police
diary and after hearing the respondent and the Public Prosecutor, passed an order
directing the police to submit a charge sheet against the petitioners.

Issue

Whether a magistrate can direct the police to submit a charge-sheet, when the
police, after investigating the commission of a cognizable offence submits a final
report under section 173 of Cr PC, 1973.

Decision by the Supreme Court

The Supreme Court observed that, in order to appreciate the duties of the police,
in the matter of investigation of offences, as well as their powers, it is necessary to
refer to the provisions contained in Chapter XII of the Code of Criminal Procedure
(Section 154 to Section 176). These provisions have been made for securing that
an investigation does take place into a reported offence and the investigation is
carried out within the limits of the law, without causing any harassment to the
accused and is also completed without unnecessary or undue delay. But the manner
and method of conducting investigation has been left entirely to the police, and the
Magistrate has no power under any of these provisions, to interfere with the same.
The formation of an opinion as to whether or not there is case to place the accused
on trial has been left to the officer in charge of a police station.

The Code as such does not use the expression 'Charge Sheet' or Final 'Report'. But
it is understood in the Police Manual containing Rules and Regulations, that a report
by the police, filed under section 170, of the Code (Cases to be sent to Magistrate
when evidence is sufficient) is referred to as 'Charge Sheet'. But in respect of the
report under section 169 (Release of accused when evidence is insufficient), it is
termed variously, in different States as either 'deferred charge', 'final report' or
'summary'.

The investigation, under the Code, takes several aspects, and stages ending
ultimately with the formation of an opinion by the police as to whether, on the
material discovered and collected, a case is make out to place the accused on trial
before a magistrate. The submission of a charge sheet or a final report, is dependent
upon the nature of the opinion formed.
 The formation of the opinion is the final step in the investigation and that final step
is to be taken only by the police and not by another authority.

Thus, there is no power expressly or impliedly conferred under the Code, on a

magistrate to call upon the police to submit a charge sheet, when they have sent a
report under section 169 of the Code, that there is no case made out for sending
up the accused for trial.

The appeal was, therefore, allowed.

Madhu Bala Case

In Madhu Bala v. Suresh Kumar, MANU/SC/0806/1997 : (1997) 8 SCC 476; the

fact was on

18th February, 1988, the appellant filed a complaint against the three respondents,
who are her husband, and father-in-law and mother-in-law respectively, before the
Chief Judicial Magistrate, Kurukshetra alleging commission of offences under
sections 406 and 498A of the Indian Penal Code by them.

The learned Magistrate framed charge against the three respondents under section
406, IPC only as, according to him, the offence under

section 498A, IPC was allegedly committed on the district of Karnal. Against the
framing of the charge, the respondents moved the Sessions Judge in revision, but
without success.

The High Court quashed the order of the Chief Judicial Magistrate of Kurukshetra
and Karnal respectively. According to the High Court, under section 156(3) of the
Code, a Magistrate can only direct investigation by the police but has no power to
direct "registration of a case".

Decision of the Supreme Court

It was observed that whenever a Magistrate directs an investigation on a

"complaint" the police has to register a cognizable case on that complaint
treating the same as the FIR and comply with the requirements of the above
rules. In our opinion, when an order for investigation under section 156(3)
of the Code is to be made, the proper direction to the police would be "to
register a case at the police station treating the complaint as the FIR and
investigate into the same".

The Court held in the following words:

"We repeat and reiterate that such a power inheres in section 156(3), for
investigation directed thereunder can only be in the complaint filed before
the Magistrate on which a case has to be formally registered in the police
station treating the same as the FIR. If the reasoning of the Punjab and
Haryana High Court is taken to its logical conclusion, it would mean that if a
Magistrate issues a direction to submit a report under section 173(2) of the
Code after completion of investigation while passing an order under section
156(3), it would be equally bad for the said section only "directs
investigation" and nothing more. Needless to say, such a conclusion would
be fallacious, for while with the registration of a case by the police on the
complaint, the investigation directed under section 156(3) commences, with
the submission of the "police report" under section 173(2), it culminates."

© Universal law Publishing Co.

 CHAPTER 4

COMPLAINTS TO MAGISTRATES

Provision for 'Complaints to Magistrate' has been prescribed under Chapter XV of

the Code which consists of only sections 200 to 203. This Chapter lays down the
procedure to deal with complaints lodged by private persons. The object of the
procedure prescribed by this Chapter, which is entitled "Complaints to Magistrates",
is the separation of unfounded from substantial cases at the outset, and to prevent
innocent persons from being bought into the police courts and subjected to the
annoyance of frivolous charges; Sheik Meeran Saib v. Ratnavelu Reddy, AIR 1915
Mad 128.

'Complaint': Meaning of

According to section 2(d) of the Code, "complaint" means any allegation made orally
or in writing to a Magistrate, with a view to his taking action under this Code, that
some person, whether known or unknown, has committed an offence, but does not
include a police report.

Explanation.-A report made by a police officer in a case which discloses, after

investigation, the commission of a non-cognizable offence shall be deemed
to be a complainant, and the police officer by whom such report is made
shall be deemed to be the complainant.

To constitute a complaint, there must be an allegation made with a view to the

recipient taking action under the code, charging some person with a particular
offence.

Essential ingredients of complaints

Following are the essential ingredients of a complaint:

(i) The allegation must be made to a Magistrate only and not to either judge
or any police officer.

(ii) The allegation must be made with a view to the Magistrate's taking action
under the Code.

(iii) The allegation must not be a mere statement to a Magistrate by way of

information without any intention of asking him to take action.

(iv) The allegation must be that of an offence which was committed and it
need not specify any offender.

This is important to note that a complaint need not necessarily be made by the
person injured but may be made by any person aware of the offence.
EXAMINATION OF COMPLAINANT

Section 200 of the Cr PC, 1973 provides for the examination of the complainant
when the same has been lodged and the Magistrate has taken cognizance.

This section provides that a Magistrate taking cognizance of an offence on

complaint, shall examine the complainant and the witnesses, if any, upon oath and
that the substance of the examination shall be reduced to writing and signed by the
complainant and the witnesses and also by the Magistrate. This is, however, not
necessary that the complaint is in writing and nothing even impliedly mean that the
complaint must be presented to the Magistrate personally. This section comes into
play only when the Magistrate has taken cognizance of an offence.

Purpose of examination

The main purpose of this examination, under section 200 of the Code is to protect
general public so that they are not unnecessarily harassed by false and frivolous
accusations. To avoid this mischief, before Magistrate issues a process and
summons a person, accused of an offence, should satisfy himself of the truth or
falsehood of the complaint and then see if the matter in the complaint requires
inquiry by the Court of law. Section 200, however, talks about examination of the
complainant and the witness who are present at the time when the complaint has
been lodged by the complainant; Dattatraya v. Wadilal
Panchal, MANU/MH/0233/1957 : AIR 1958 Bom 335.

"Magistrate taking cognizance": Meaning of

What is the meaning of the expression "Magistrate taking cognizance"?

Expression 'taking cognizance' means the Magistrate must have applied his mind to
the offence for the purpose of proceeding in a particular way provided under section
190 of the Code.1

It is important to note that the expression 'taking cognizance' has not been defined
in the Code nor does the Code prescribe any special form of taking cognizance. The
word 'cognizance' is, however, used in the Code to indicate the point when the
Magistrate takes judicial notice of an offence. It is a word of indefinite import, and
is perhaps not always used in exactly the same sense; Darshan Singh Ram Singh
v. State of Maharashtra, MANU/SC/0089/1971 : (1971) 2 SCC 654: AIR 1971 SC
2372. It is, therefore, a judicial act permitted by the Code taken with a view
eventually to prosecution and preliminary to the commencement of the inquiry or
trial.

_________________________

1. Section 190 of the Code reads as under:

 190. Cognizance of offences by Magistrates.—

(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any
Magistrate of the second class specially empowered in this behalf under sub-section (2),
may take cognizance of any offence—

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon
his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take
cognizance under sub-section (1) of such offences as are within his competence to inquire
into or try.

Meaning of word 'may' in the expression 'may take cognizance'

The word 'may' imports exercise of judicial discretion and the Magistrate, on
receiving a complaint or a police report, will have to decide judicially whether or not
to take cognizance of the offence. The provisions of this section cannot, therefore,
be read as meaning that once a complaint is filed, the Magistrate is bound to take
cognizance. The word 'may' cannot be taken in a way that it means 'must'; Gopal
Das Sindhi v. State of Assam, AIR 1961 SC 986.

Complainant: meaning of

The expression 'complainant' has not been defined in the code. But that can only
mean the person who presents the complaint and is examined as complainant under
section 200 Cr PC. No other person can be deemed to be a complainant, as much
as the person who may be interested in the prosecution of the accused or in
property which is the subject-matter of the alleged offence; Nanilal Samanta v.
Robin Ghose, (1964) 1 Cr LJ 186.

Period of limitation in filing a complaint

There is no period of limitation prescribed for filing a complaint. The Court before
which the complaint is filed cannot throw it out on the sole ground that there has
been delay in filing it. The question of delay in filing a complaint may be
circumstantial which is to be taken into consideration in arriving at the final verdict.
But by itself it affords no ground for dismissing the complaint nor the prosecution
be quashed by a Superior Court on that ground; Asstt. Collector of Customs v. L.R.
Melwani, MANU/SC/0279/1968 : AIR 1970 SC 962.

COMPETENCY OF MAGISTRATE
 The procedure that a Magistrate has to adopt when he is not competent to take
cognizance of the case has been prescribed under section 201 of Criminal Procedure
Code.

The want of competency contemplated by this section may be due to:

(i) the Magistrate not being empowered under section 190 Cr PC; or

(ii) want of local jurisdiction; or

(iii) want of previous sanction under section 132 or sections 196-199 or

complaint under section 195 read with section 340 or under some special or
local law; or

(iv) to the Magistrate not being qualified to try under Schedule I of the Code
or to commit for trial.

Refusal to act for want of a proper sanction is no bar to a subsequent complaint

with a proper sanction; Queen-Express v. Kuniyil Raru, ILR 24 Mad 337.

What should a Magistrate do when he is not competent?

If on perusal of the complaint, the Magistrate finds he has no jurisdiction, he is not

bound to examine the complainant, and indeed he cannot do so, but should return
it, after making the endorsement required by section 201, when the complaint is in
writing; Thomas v. Abraham Varghese, 1961 KLT 753. A Magistrate need not,
however, return the complaint, if he is not entitled to take cognizance of a charge
not named in the complaint, but which could possibly be made out from the
allegation in it; Sripat Rai v. Emperor, MANU/UP/0221/1930 : AIR 1931 All 10.

Where the complaint discloses different offences committed in different

jurisdictions, the Magistrate should direct the complainant to file separate
complaints, in respect of offences committed outside his jurisdiction before a
competent Magistrate and confine his inquiry to the offences for which he can take
cognizance; Ullahanan Varkey v. Mathai Poulose, AIR 1954 TC 172.

POSTPONEMENT OF ISSUE OF PROCESS

When can a Magistrate postpone the issue of process against the accused?

Section 202 of the Code provides for the postponement of process after examination
of the complainant as under:

Section 202: (1) Any Magistrate, on receipt of a complaint of an offence of which

he is authorised to take cognizance or which has been made over to him under
section 192, may, if he thinks fit, postpone the issue of process against the accused,
and either inquire into the case himself or direct an investigation to be made by a
 police officer or by such other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient grounds for proceeding.

Provided that no such direction for investigation shall be made:

(a) where it appears to the Magistrate that the offence complained of

is triable exclusively by the court of session; or

(b) where the complaint has not been made by a Court unless the
complainant and witnesses present (if any) have been examined on
oath under section 200.

(2) In an enquiry under sub-section (1), the Magistrate may, if he thinks fit, take
evidence of witnesses on oath;

Provided that if it appears to the Magistrate that the offence complained of

is triable exclusively by the Court of Session, he shall call upon the
complainant to produce all his witnesses and examine them on oath.

(3) If an investigation under sub-section (1) is made by a person not being a police
officer, he shall have for that investigation all the powers conferred by this Code on
an officer-in-charge of a Police Station except the power to arrest without arrest-
warrant.

This section contains yet another check to prevent false and vexatious complaints
being filed. Section 202 makes it clear that a Magistrate is not bound to issue
process immediately when a complaint is filed before him. If he has doubt about
the truth of the complaint, it gives him power to postpone the issue a process if he
thinks fit, and either to inquire into the case himself or direct an investigation by a
police officer or such other person as the Magistrate thinks fit "for the purpose of
ascertaining whether or not there is sufficient ground for proceeding"; Dattatraya
v. Wadilal Panchal, MANU/MH/0233/1957 : AIR 1958 Bom 335 (338).

The enquiry or investigation under this section is designed to afford the Magistrate
an opportunity to either confirm or remove such hesitation as he feels before issuing
process against the accused. The nature of enquiry varies with the circumstances
and facts of each case and it is certainly not contemplated that it should always be
exhaustive.

Of course, this section has no application in a case where cognizance is taken on

police report; Harbir Singh v. State, AIR 1952 Pepsu 29. The provision contained
herein is certainly enabling and not obligatory.

What a Magistrate cannot do under this section?

A Magistrate is not empowered to do the following things under this section:

 (i) He cannot make enquiry without complaint;

(ii) He cannot direct investigation when the accused is discharged under

section 245 of the Code; Indupuri Gangarazu (in re:), 2 Weir 239.

(iii) He cannot order enquiry when transfer is made under sections 407 or
409 of the Code;

(iv) He has no power to refer for inquiry, in maintenance cases filed under
section 125 of the Code; and

(v) He has no power to refer for enquiry in applications filed under section
125 of the Code; and application under section 98 of the Code; Tulsidas
Jaglyadas v. Chetandas Domadas, MANU/NA/0133/1933 : AIR 1933 Nag
374.

Distinction between 'investigation' under sections 156(3) and 202

There is distinction between an investigation by a police officer under section 156(3)

and that by the direction of the Magistrate under section 202. In the former case,
the police may examine the accused and also the oral and documentary evidence
produced at his instance, the accused has no right to appear in the later case;
Jamaluddin Sk. v. State of Bihar, 1980 Cr LJ 1054. In the former case, the
Magistrate does not take cognizance of the offence, while he takes cognizance in
the latter case.

Issue of process: Scope

Issue of process is a judicial process. Before process is issued, the Magistrate has
to comply with the provisions of section 200. If the Magistrate issues a process
against the accused without examining the complainant and his witnesses under
section 200, the proceedings would be liable to be quashed; Maniappa v. State,
(1980) 1 Crimes 94. Conclusion of Magistrate under section 202, Cr PC regarding
non-maintainability of the complaint against some of the accused without examining
the witnesses as envisaged under section 200, Cr PC is not proper; A.V. Sreedhar
Reddy v. State of Andhra Pradesh, (1985) 3 APLJ 304.

Who may make an 'investigation'?

(i) Even a Clerk:-The investigation contemplated by this section may be made by

any officer subordinate to the Magistrate, even though he be a clerk; but if the
investigation is entrusted to a subordinate Magistrate, he can in conducting the
investigation, exercise all magisterial powers, including the power to administer an
oath; Kanchan Gorhi v. Ram Kishun Mundal, ILR 36 Cal 72.
 (ii) Subordinate Magistrate:-A subordinate Magistrate would also be a 'such other
person' within the meaning of sub-section (1) of section 202. But if an investigation
is entrusted to him, he will be entitled only to exercise the powers of an officer-in-
charge of a police station (except that of arrest) under sub-section (3) of section
202.

(iii) Police officer who is himself an accused, cannot inquire:-If the accused be a
police officer himself and as such subordinate to a Magistrate, the Magistrate cannot
call for a report from him for the purpose of ascertaining the truth of the complaint;
Baidya Nath Singh v. Muspratt, ILR 14 Cal 141.

Term "sufficient grounds"

The word "sufficient ground" used under section 202 of the Code have to be
construed to mean the satisfaction that a prima facie case is made out against the
accused and not sufficient ground for the purpose of conviction; S.N. Palanikar v.
State of Bihar, MANU/SC/0672/2001 : AIR 2001 SC 2960.

DISMISSAL OF COMPLAINT

Provision for dismissal of complaint filed before a Magistrate has been provided
under section 203 of the Code. This section may be resorted to:

(i) when after examination of the complainant and the witnesses present
under section 200, the Magistrate has reason not to believe the truth of the
complaint; or

(ii) after such examination, the Magistrate entertains a reasonable doubt of

such complaint, which doubt is confirmed by a proper report called for under
section 202.

Section 203: Scope of

Discuss the scope of section 203 of Cr PC

When the information is laid with the police, but no action in that behalf is taken,
the complainant is given power under section 190 read with section 200 of the Code
to lay the complaint before the Magistrate having jurisdiction to take cognizance of
the offence and the Magistrate is required to enquire into the complaint as provided
in Chapter XV of the Code. In case the Magistrate after recording evidence finds a
prima facie case, instead of issuing process to the accused, he is empowered to
direct the police concerned to investigate into the offence under Chapter XII of the
Code and to submit a report. If he finds that the complaint does not disclose any
offence to take further action, he is empowered to dismiss the complaint under
section 203 of the Code. In case he finds that the complaint/evidence recorded
prima facie discloses an offence, he is empowered to take cognizance of the offence
 and would issue process to the accused; Minu Kumari v. State of Bihar, II (2006)
CCR 137 (SC).

Magistrate must comply with sections 200 and 202

A Magistrate, when there is a complaint before him, must deal with it according to
section 200 and the following sections. If he wishes to postpone the issue of process
under section 202, he must comply with the provisions of that section, and if as a
result of a preliminary inquiry, he wishes to dismiss the complaint, he must do so
according to the provisions of this section. It is only on a consideration to the
statement on oath of the complainant and the result of investigation or enquiry
under section 202 that the Magistrate is authorised to dismiss a complaint under
this section. When there has been no investigation or inquiry under section 202, it
is incompetent for the Magistrate to act under this section as the pre-requisite for
taking action under section 203 as an investigation or enquiry under section 202;
Thippareddigari v. Seshi Reddy, MANU/TN/0385/1954 : AIR 1954 Mad 889.

A complainant is entitled to have his complaint properly considered before it is

dismissed under section 203. While no one wishes to place a person accused of an
offence to suffer undue harassment, so far as a court of law is concerned, its
function is essentially to see that cases are disposed of according to law. It is not
right for a Magistrate to make enquiries under section 203 in such a fashion that
from the record it cannot be said whom he examined and what was the source of
his information; Ramdeo v. Ramjanam MANU/BH/0044/1951 : AIR 1951 Pat 449.

No application of section 203 after issuance of process

This section applies only to cases falling under Chapter XV of the Code where there
has been no issue of process. When an accused person has been summoned to
appear before a Magistrate, there has been a commencement of proceedings and a
complaint cannot be dismissed under this section; State of Kerala v. Ramakrishna,
1963 KLT 478. Dismissal of complaint without complying provisions prescribed in
Chapter XV of the Code is bad; Manorama Mohapatra v. Harihar Sathua, (1990) 1
Crimes 496.

Grounds of dismissal

If the Magistrate after considering the statement of the complainant and his
witnesses and other materials before him, finds that there is no case against the
accused for proceeding further in the matter, he is competent to dismiss the
complaint; Minu Kumari v. State of Bihar, II (2006) CCR 137 (SC). Following are
the grounds which a Magistrate shall a take into consideration while dismissing the
complaint:
Name the factors which a Magistrate shall take into consideration while
discussing the complaint

(i) When the complaint does not involve any criminal liability of the accused;

(ii) When the Magistrate does not see any prima facie evidence against the
accused;

(iii) Where the complainant does not appear before the court in person;

(iv) Where the complaint discloses a cognizable offence against an unknown

offender, the Magistrate must record in his judgment under section 203 that
there are no sufficient grounds for proceeding.

(v) Where a complaint is based on some official communication, oral or in

writing, falling within the sections 123 to 125 of the Indian Evidence Act,
and there is no likelihood of proving the communication by primary or direct
evidence;

(vi) It is in the true interests of justice that complaints should not be

entertained when allegations considered to be utterly false and liable to lead
to perjury are made which may ruin the prosecution case even as regards
that part of it which may reasonably be true; Narayan v.
Shankarsingh, MANU/NA/0075/1944 : AIR 1944 Nag 318.

It is important to note that motive of the complainant is not a relevant consideration

at this stage of the dismissal; Karumuthu S. Chokalingam v. T. Kannappan, 1976
LW (Cr) 60.

Can fresh complaint can be entertained after dismissal?

The Supreme Court time to time in its pronouncements held that, dismissal of any
complaint under section 203, Cr PC does not necessarily bar any fresh complaint,
the well established principle of law is that the fresh complaint can be entertained
only when it is established that certain material produced in the proceedings of the
second complaint could not be produced earlier for sufficient reasons and the new
material so produced helps in establishing a prima facie case; State of Rajasthan v.
Aruna Devi, MANU/SC/0115/1995 : (1995) 1 SCC 1; Pramathanath v. Saroj Ranjan,
1962 (Supp) 2 SCR 297.

In Poonam Chand Jain v. Fazru, AIR 2005 SC 38 and Mahesh Chand v. B. Janardhan
Reddy, MANU/SC/1111/2002 : (2003) 1 SCC 734, the Supreme Court held that
there is no statutory bar in filing a second complaint on the same facts. In a case
where a previous complaint is dismissed without assigning any reason, the
Magistrate under section 204 Cr PC may take cognizance of an offence and issue
process if there is sufficient ground for proceeding. But the second complain on the
same facts could be entertained only in exceptional circumstances, namely, where
the previous order was passed on an incomplete record, or on a misunderstanding
of the nature of complaint, or it was manifestly absurd or unjust or where new facts
which could not. With reasonable diligence, have been brought on record in the
previous proceedings have been adduced. The second complaint could be dismissed
after a decision has been given against the complainant in previous matter upon a
full consideration of his case.

© Universal law Publishing Co.

 CHAPTER 5

CHARGE

What is the importance of `charge' in a criminal trial?

The 'charge' or accusation has been dealt with in Chapter XVII of the Code of
Criminal Procedure, 1973 and it includes any head of charge when the charge
contains more heads then one.

In any criminal trial, 'charge' is an important aspect of the trial as it gives an

opportunity to the accused to understand in his own language the 'accusations'
which are sought to be made against him by the prosecution in order to bring him
to book by the Court/Magistrate. The 'charge' is written in the language of the court
which is read out to the accused in open Court and accused is asked whether he/she
pleads guilty or pleads not guilty to the charge. In case, an accused pleads guilty
to the charge, the Court records the plea of the accused and convicts him thereon
and in case the accused chooses to plead not guilty and claims to be tried, the court
fixes a date for the examination of witnesses and on the date so fixed, the court
shall proceed to take all such evidence as may be produced in support of the
prosecution and trial proceeds in the court till judgment of acquittal or conviction is
pronounced by the trial court.

The contents of 'charge' have been given in section 211 of the Code of Criminal
Procedure, 1973. This section reads as under:

Section 211 -

(1) every charge under this Code shall state the offence with which
the accused is charged.

(2) If the law which creates the offence gives it any specific name,
the offence may be described in the charge by that name only.

(3) If the law which creates the offence does not give it any specific
name, so much of the definition of the offence must be stated as to
give the accused notice of the matter with which he is charged.

(4) The law and section of the law against which the offence is said
to have been committed shall be mentioned on the charge.

(5) The fact that the charge is made is equivalent to a statement that
every legal condition required by law to constitute the offence
charged was fulfilled in the particular case.

(6) The charge be written in the language of the court.

 (7) If the accused, having been previously convicted of any offence
is liable, by reason of such previous conviction to enhanced
punishment, or to punishment of a different kind, for a subsequent
offence; and it is intended to prove such previous conviction for the
purpose of affecting the punishment which the court may think fit to
award for the subsequent offence, the fact, date and place of the
previous conviction shall be stated in the charge; and if such
statement has been omitted, the court may add it any time before
the sentence is passed.

The purpose of a charge is to tell an accused person as precisely and concisely as

possible of the matter with which he is charged and must convey to him with
sufficient clearness and certainty what the prosecution intends to prove against him
and of which he will have to clear himself; Mannalal v.
State, MANU/WB/0117/1967 : AIR 1967 Cal 478.

Sections 211 to 214, give clear and explicit directions as to how a 'charge' should
be drawn up. It has been repeatedly held that the framing of proper charge is vital
to a criminal trial and that this is a matter on which the judge should bestow the
most careful attention; Balakrishnan v. State, MANU/KE/0100/1958 : AIR 1958 Ker
283.

Section 212 of the Code says that "charge" must contain such particulars as to the
time and place of the alleged offence and the person against whom, or the thing in
respect of which it was committed so that accused clearly takes notice of the matter
with which he is charged.

It further says that when the accused is charged with criminal breach of trust or
dishonest misappropriation of money or other movable property, it shall be
sufficient to specify the gross sum or, as the case may be, describe the movable
property in respect of which the offence is alleged to have been committed, without
specifying particular items or exact dates and the charge so framed shall be deemed
to be a charge of one offence, provided that the time included between the first and
last of such dates shall not exceed one year.

Any number of acts of breach of trust committed within one year amounts only to
one offence. But where a series of acts extends over more than a year the joinder
of charges is illegal; Dhanjibhoy v. Karim Khan, (1904) PR No. 14 of 1905.

A charge for criminal breach of trust framed in contravention of this section is

merely an irregularity which can be cured under section 215 of the Code and will
not vitiate the trial when the accused is not prejudiced; Kadiri
Kunhahammad, MANU/SC/0212/1959 : AIR 1960 SC 661.
In Sanghi Brother v. Sanjay Choudhary, MANU/SC/8097/2008 : AIR 2009 SC 9, the
Supreme Court held that suspicion about commission of offence and involvement
of the accused is sufficient to frame a charge against the accused.

Section 213 reads - When the nature of the case is such that the particulars
mentioned in sections 211 and 212 do not give the accused sufficient notice of the
matter with which he is charged, the charge shall also contain such particulars of
the manner in which the alleged offence was committed as will be sufficient for that
purpose.

In case the charge does not give the accused sufficient notice of the matter with
which he is charged, the charge shall also contain such particulars of the manner in
which the alleged offence was committed so that the accused understands the
charge fully well.

Section 214 says that in every charge, words used in describing an offence shall be
deemed to have been used in the sense attached to them respectively by the law
under which such offence is punishable, and section 215 says that no error in stating
either the offence or the particulars required to be stated in the charge, and no
omission to state the offence or those particulars shall be regarded at any stage of
the case as material, unless the accused was infact misled by such error or omission
and it has occasioned a failure of justice.

The charge should give clear picture to the accused that he understands the
contents of the charge which he would defend during the trial after he pleads not
guilty and claims trial. In case any error appears in the 'charge' and is pointed out
by the defence then it can be considered by the court if the accused is misled by
such error or omission and the same has caused a failure of justice.

"Mere omission or defect in framing charge does not disable the criminal court from
convicting the accused for the offence which is found to have been proved on the
evidence on record". The Code of Criminal Procedure has ample provisions to meet
such a situation; K. Prema S. Rao v. Vadla Srinivasa Rao, (2003) 1 SCC: 2003 Cr
LJ SC 69 (217).

This section is intended to prevent any failure of justice for non-compliance with
the matters required to be stated in the charge, unless the irregularity in the
'charge' has misled the accused and occasioned a failure of justice, the conviction
cannot be set-aside; Yeshwant v. State, (1926) 28 Bom LR 497.

The Code of Criminal Procedure under section 216 has given the power to the court
to alter or add to any charge at any time before the judgment is pronounced. Such
addition or alteration is then explained to the accused and the court may proceed
with the trial as if such addition or alteration was there in the original charge if it
does not cause prejudice to the accused in his defence.
Section 216 reads as under:

(1) Any court may alter or add to any charge at any time before judgment
is pronounced.

(2) If the alteration or addition to any charge shall be read and explained to
the accused.

(3) If the alteration or addition to a charge is such that the court is of opinion
that proceeding immediately with the trial is not likely to prejudice the
accused in his defence or the prosecutor in the conduct of the case, the court
may after such alteration or addition has been made, proceed with the trial
as if the altered or added charge had been the original charge.

(4) If the alteration or addition to charge is such that the court is of the
opinion that proceeding immediately with the trial is likely to prejudice the
accused or the prosecutor, it may either direct a new trial or adjourn the
trial for such period which may be necessary.

(5) If the offence stated in the altered or added charge is one for the
prosecution of which previous sanction is necessary, the case shall not be
proceeded with until such sanction is obtained, unless sanction has been
already obtained for a prosecution on the same facts as those on which the
altered or added charge is founded.

The purpose of any addition or alteration in the charge is to acquaint the accused
with the added or altered accusation and in case the same does not prejudice his
defence than the trial could be further proceeded as if the addition or alteration was
already in the original charge but in case if it prejudices the accused, then re-trial
can be directed by the court and witnesses could be recalled and examined and
cross-examined in the court. The accused gets an opportunity to defend himself if
the re-trial is directed by the court on the basis of alteration or addition in the
charge. The legislation has recognised the valuable right of the accused to defend
himself in the court if the original charge is altered or added and he may seek
further trial and defend himself on the altered or added charges. The accused is
allowed to recall or resummon any witness who may have been examined prior to
alteration or addition of charge, unless the court considers that the prosecutor or
the accused desires to recall or re-examine such witness for the purpose of vexation
or delay or for defeating the ends of justice. The court may also grant permission
to accused to call any further witness who the court thinks to be material for the
trial as per section 217 of the Cr PC.

The Cr PC provides under section 218 that for every distinct offence, there shall be
a separate charge and every such charge shall be tried separately:
 Provided that where the accused person, by an application in writing, so
desires and the Magistrate is of opinion that such person is not likely to be
prejudiced thereby, the Magistrate may try together all or any number of
charges framed against such person. The illustration is, suppose "A" is
accused of a theft on one occasion, and of causing grievous hurt on another
occasion. A must be separately charged and separately tried for the theft
and causing grievous hurt.

Sections 219 says that three offences of the same kind within a year may be
charged together.

Section 219 refers to the case of one person accused of more offences than one of
the same kind within a period of one year, not exceeding three offences. It is not
applicable where several people are tried jointly; Budhai Sheikh, (1905) 33 Cal 292.

It is not enough that the acts must be similar or that the offences must be similar,
but in order to bring a case within this section, the offences must be "of the same
kind" as defined in sub-section (2) of section 219; Chandra v. State, (1951) 53 Bom
LR 928 (Full Bench).

In order to form the same transaction, a group of facts so connected together as to

involve certain ideas e.g. unity, continuity and connection. In order to determine
whether a group of facts constitutes one transaction, it is necessary to ascertain
whether they are so connected together as to constitute a whole which can properly
be described as a transaction; Kanshiram Jhunjhunwalla v. State, (1935) 62 Cal
808.

TRIAL FOR MORE THAN ONE OFFENCE

How the court has to proceed for the trial for more than one offence?

Section 220 of the Code provides for the trial for more than one offence. This section
reads as under:

Section 220 -

(1) If, in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the same
person, he may be charged with, and tried at one trial for, every such
offence.

(2) When a person charged with one or more offences of criminal

breach of trust or dishonest misappropriation of property as provided
in sub-section (2) of section 212 or in sub-section (1) of section 219,
is accused of committing, for the purpose of facilitating or concealing
the commission of that offence or those offences, one or more
 offences of falsification of accounts, he may be charged with, and
tried at one trial for, every such offence.

(3) If the acts alleged constitute an offence falling within two or more
separate definitions of any law in-force for the time being by which
offences are defined or punished, the person accused of them may
be charged with and tried at one trial for, each of such offences.

(4) If several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute when combined a
different offence, the person accused of them may be charged with,
and tried at one trial for the offence constituted by such acts when
combined, and for any offence constituted by any one, or more, of
such acts.

(5) Nothing contained in section 220 shall affect section 71 of the

Indian Penal Code.

Applicability of section 220

In Jagannath v. State of Harayana, 1983 Cr LJ 1574; it was held that, section 220
of the Code is applicable to offences which are committed in series of acts so
connected together as to form the same transaction.

When nature of offence is doubtful

Section 221 provides for the provisions where it is doubtful what offence has been
committed. This section says that:

Section 221 -

(1) If single act or series of acts is of such a nature that it is doubtful

which of several offences the facts which can be proved will
constitute, the accused may be charged with having committed all or
any of such offences, and any number of such charges may be tried
at once or he may be charged in the alternative with having
committed some of the said offences.

(2) If in such a case, the accused is charged with one offence, and it
appears in evidence that he committed a different offence for which
he might have been charged under the provisions of sub-section (1),
he may be convicted of the offence which he is shown to have
committed, although he was not charged with it.

Who may be charged jointly?

Discuss the set of persons who may be charged jointly?

Section 223 of the Code provides for the joint trial of persons in certain
circumstances. This section says that:

Section 223 -

The following persons may be charged and tried together, namely:

(a) persons accused of the same offence committed in the

course of the same transaction;

(b) person accused of an offence and persons accused of

abetment of, or attempt to commit, such offence;

(c) persons accused of more than one offence of the same

kind, within the meaning of section 219 committed by them
jointly within the period of twelve months;

(d) persons accused of different offences committed in the

course of the same transaction;

(e) persons accused of an offence which includes theft,

extortion, cheating, or criminal misappropriation, and persons
accused of receiving or retaining, or assisting in the disposal
or concealment of, property possession of which is alleged to
have been transferred by any such offence committed by the
first-named persons, or of abetment of or attempting to
commit any such last named offence;

(f) persons accused of offences under sections 411 and 414

of the Indian Penal Code (45 of 1860) or either of those
sections in respect of stolen property the possession of which
has been transferred by one offence;

(g) persons accused of any offence under Chapter XII of the

Indian Penal Code (45 of 1860) relating to counterfeit coin
and persons accused of any other offence under the said
Chapter relating to the same coin, or of abetment of or
attempting to commit any such offence; and the provisions
contained in the former part of this Chapter shall, so far as
may be, apply to all such charges.

Provided that where a number of persons are charged

with separate offences and such persons do not fall
within any of the categories specified in this section,
the Magistrate or Court of Session may, if such persons
by an application in writing, so desire, and if he is
 satisfied that such persons would not be prejudicially
affected thereby, and it is expedient so to do, try all
such persons together.

Withdrawal of certain charges

Section 224 of the Code provides for the withdrawal of remaining charges on
conviction on one of several charges in the following words:

Section 224 -

When a charge containing more heads than one is framed against the
same person, and when a conviction has been had on one or more of
them, the complainant, or the officer conducting the prosecution,
may, with the consent of the court, withdraw the remaining charge
or charges, or the court of its own accord may stay the inquiry into,
or trial of, such charge or charges and such withdrawal shall have the
effect of an acquittal on such charge or charges, unless the conviction
be set aside, in which the said court (subject to the order of the court
setting aside the conviction) may proceed with the inquiry into or trial
of, the charge or charges so withdrawn.

Section 224 provides for certain charges to be withdrawn with the permission of the
court after the accused has been convicted on one or more of the charges. Such
withdrawal of the charges shall have the effect of acquittal in respect of those
charges.

The Court will not appreciate evidence at the time of framing charge

In Hem Chand v. State of Jharkhand, MANU/SC/7322/2008 : AIR 2008 SC 1903, it

was held that at the stage of framing charge the Court exercises a limited
jurisdiction. At that stage the Court will not weigh the evidence. It would only have
to see as to whether a prima facie cases has been made out and would not delve
deep into the matter for the purpose of appreciation of evidence. The Court would
not ordinarily considers as to whether the accused would be able to establish his
defence, if any. The stage for appreciating the evidence for the purpose of arriving
at a conclusion as to whether the prosecution was able to bring home the charge
against the accused or not would arise only after all the evidence are brought on
records at the trial.

© Universal law Publishing Co.

 CHAPTER 6

TRIAL

What do you mean by word `trial' within the meaning of the Code?

The basic principle underlying the Criminal Justice-System in India is that hundred
accused might be set free than one innocent man be sent behind bars. The trial of
the accused should be fair and impartial and as the old saying goes 'that justice
should not only be done but also seem to be done'. For this object in mind, our
forefathers have made our judiciary independent of the executive and legislature.
The whole burden of fair and impartial trial thus rests on the shoulders of the
judiciary in India. To my mind, our 'judiciary' is performing its functions laudably
fully conscious of their "independent functioning" in the largest democracy of the
world under the Constitution.

We, in India, follow the adversary system where both the parties are allowed to
plead their case, but forward their arguments, rubuttals and refusals with the help
of evidence adduced during the trial. The court acts as a "refree" and participates
in the whole trial till the evidence is closed by both the parties and arguments are
advanced. The court has then to decide and pronounce its judgement on the basis
of the records of the case and its fair and impartial opinion. The common law
relating to criminal justice is founded on the principle that an accused is innocent
until he is proved to be guilty beyond reasonable doubt. To elicit truth, the judge
can also ask court questions from any witness and he is not a passive on looker in
the court. The judge has been assigned with a pious duty to deliver justice on the
basis of the principles governing the criminal justice-system in India. The
Magistrate/Court does not work and perform its functions as an agency of the police
or prosecution but acts independently of any fear or favour. During emergency,
Indira Gandhi government tried to browbeat the highest-judiciary by superseding
three senior-most judges of the Supreme Court by appointing Mr. Justice A.N. Ray
as the Chief Justice of India but all the three superseded judges of the Supreme
Court of India resigned and thus upheld the most important aspect of judiciary i.e.
its "Independence".

If it is found at any stage of the 'appeal' that the trial judge did not act fairly and
impartially while recording the evidence of the witnesses during trial, the appellate
judges' were right in rejecting the whole of evidence and the appellant was set at
liberty. These are some of the most celebrated principles on which our criminal-
justice-system functions. An accused cannot be convicted if reasonable doubts
appear in the prosecution-case and the benefit of doubt is always given to the
accused by our courts, "is another important principle of criminal-law in India".

KINDS OF TRIAL
Discuss the various kinds of trial?

The trial should be conducted in a regular manner, so that continuity is maintained

and justice is met. The accused has a right to be represented through a 'lawyer'
who may be engaged privately or at State expenses. The court cannot deprive an
accused of the services of a 'lawyer' so that the accused gets full opportunity to
defend himself in the court. The Supreme Court has held that an accused has a
fundamental right to the services of a defence lawyer and in case he is indigent and
unable to engage a private counsel, then the State shall provide a 'lawyer' at its
expenses but in no case the accused should go unrepresented by a 'lawyer' failing
which the trial vitiates and the accused gets acquittal.

Summary trials

Summary trial may be held in cases where the offences alleged to have been
committed are of minor nature and do not entail serious consequences. In
Jagmalaram v. State of Rajasthan, 1982 Cr LJ 2314; it was held that:-

"This does not mean that by conducting a summary trial in certain cases,
the Magistrate is also empowered to by-pass the provisions and obligations
composed by both the Constitution and the Cr PC. For example, the accused
has a right to be represented by a lawyer of his own choice; if the summary
trial does not enable the accused to engage a lawyer, then opportunity must
be given to the accused to do so, even if this may entail the postponement
of the proceedings.

Another point to be noted in summary trials is that the Police Officers are
inevitably present in this spot-trial proceedings and produce the accused on
the venue of the court. Thus, any 'plea of guilty' in the presence of such
officials though in the presence also of the magistrate, cannot be said to be
'voluntary'. And if the plea is not 'voluntary', the conclusion to be drawn is
to the contrary and the accused must be given an opportunity to consult and
engage a lawyer of his own choice."

Regular trial

Regular trial means, "proper investigation by the police followed by proper framing
of charge(s), leading of the evidence by the prosecution and then the defence of
the accused."

Trial in-Camera

Certain trials are conducted in-camera at the request of the parties e.g.,
matrimonial cases, defamation, cases involving high dignitaries, rape cases etc.,
are usually held in-camera and the proceedings are not reported as in other cases.
In these cases, normally parties names are omitted and instead of complete name
 only alphabets are allotted. However, trial in-camera does not by-pass the
prescribed procedure.

CONDUCT OF TRIAL

How a criminal trial has to be conducted?

Fair and impartial trial is the backbone of criminal-justice-system in India. When

charges are framed by the court on the basis of police report and documents and
statements of witnesses, the accused is asked whether he pleads guilty to the
'charges' or claims trial. If the accused 'pleads guilty', than the Court may convict
him then and there and in case, the accused "pleads not guilty and claims trial",
the Magistrate gives a date to the prosecution to bring its evidence on the date so
fixed. The witnesses are examined and cross-examined in the court. The accused
is also given an opportunity to adduce evidence in defence and his statement
without oath is also recorded under section 313 of the Code of Criminal Procedure
in questions and answer form so that due weightage could be given to such
statement under section 313 Cr PC at the time of writing of the judgment after both
the parties conclude their arguments. If the accused is not found guilty then he is
acquitted of the 'charges' but if he is found guilty then he is heard on the question
of quantum of sentence and also if he is entitled to the provisions of section 360 Cr
PC or the provisions of Probation of Offenders Act. After passing of the appropriate
'sentence', the court is bound to supply him the attested copy of the judgment and
the orders on 'sentence' so that he may file an appeal or revision as per law, if he
is so advised by his counsel.

Opportunity to defend

A trial is said to be fair and impartial, if the court is not influenced by any exterior
pulls or favours while conducting trial and also the court does not browbeat or
threaten the witnesses to depose in a particular manner. The judge should not give
an impression by his conduct or otherwise that he is biased towards a particular
accused or co-accused. The pre-notions of a trial judge are hinderances in imparting
justice and thus act as anti-thesis to the concept of fair and impartial justice.

In H.S. Sabharwal v. State of Madhya Pradesh, MANU/SC/1193/2008 : AIR 2008

SC 1943, the Supreme Court held that if a criminal court is to be an effective
instrument in dispensing justice, the Presiding Judge must cease to be a spectator
and a mere recording machine by a becoming a participant in the trail evincing
intelligence, active interest and elicit all relevant materials necessary for reaching
the correct conclusion, to find out the truth, and administer justice with fairness
and impartiality both to the parties and to the community it serves. Courts
administering criminal justice cannot turn a blind eye to vexatious or oppressive
conduct that has occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name and standing of the judges
 as impartial and independent adjudicators. Fair trail obviously would mean a trial
before an impartial judge, a fair prosecutor and atmosphere of judicial calm. Fair
trial means a trial in which bias or prejudice for or against the accused, the
witnesses, or the cause which is being tried is eliminated. The failure to hear
material witnesses is certainly denial of fair trial.

SEPARATION OF EXECUTIVE AND JUDICIARY

Under the new Code of Criminal Procedure, there is a complete separation between
the Executive and the Judiciary. Prior to it, the prosecutor and the judge were one
and the same, and the accused could not be said to have had a fair trial. Now, under
the new Code, this defect has been removed. The investigation of offences has been
entrusted to the Police, whereas virtually the charge is framed by the Judge. 1

The executive prosecutes while the accused defends or meets the charges. The trial
judge acts as an umpire. The judge remains almost neutral till the end. He examines
the evidence tendered by both the sides, weighs it, and forms his opinion as to
whether the accused is guilty or not guilty and thereafter either convicts him or
acquits him as the case may be. This is called the adversary system, which is the
corner-stone of our Criminal Procedure. Here, the accused is given full chance and
opportunity to defend himself while the duty of prosecution is that it must establish
the case against accused beyond all reasonable doubts.

______________

1. Vide sections 228 and 240, Cr PC, 1973.

PROVISION FOR LEGAL AID (SECTIONS 303 AND 304 CR PC RELATING TO

ARTICLES 21 AND 39A OF THE CONSTITUTION)

Do you think that legal aid to the needy person is an important tool to achieve
the goal of fair trial? Critically examine.

Under the Code of Criminal Procedure 1973, the provisions for legal aid to the
accused have been enacted as the 'right' of the accused to defend himself by a
pleader of his choice and in case he is unable to engage a counsel of his choice at
his own expenses due to his poverty or any other reasons, then the State shall
provide him legal aid of a lawyer to defend his case in the court at the expenses of
the State.

"Section 303 - Any person accused of an offence before a Criminal Court, or

against whom proceedings are instituted under this code, may of right be
defended by a pleader of his choice.

Section 304 -
 (1) where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where it appears to the Court that the
accused has not sufficient means to engage a pleader, the court shall
assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State
Government, make rules, providing for:

(a) the mode of selecting pleader for defence under sub-

section (1),

(b) the facilities to be allowed to such pleaders by the Courts.

(c) the fees payable to such pleaders by the Government, and

generally, for carrying out the purpose of sub-section (1).

(3) The State Government may, by notification, direct that, as from

such date as may be specified in the notification, the provisions of
sub-sections (1) and (2) shall apply in relation to any class of trials
before other courts in the State as they apply in relation to trials
before Court of Sessions."

The court is duty-bound to provide legal aid through a lawyer to an accused who is
unable to defend himself or unable to seek the services of a lawyer of his choice.
The High Court makes rules for providing free legal aid to the accused who are
unable to engage a lawyer for his defence. Article 39A has also been introduced in
the Constitution by 42nd Amendment in the year 1976 in order to provide equal
justice and free legal aid to the needy. The Supreme Court also held that the State
is under Constitutional obligation to provide free legal services to an indigent
accused not only at the stage of the trial but also at the stage when he is first
produced before the Magistrate as also when he is remanded from time to time;
Khatri v. State of Bihar, MANU/SC/0518/1981 : AIR 1981 SC 928: 1981 Cr LJ 470.

Role of judges

In Ram Chander v. State of Haryana, MANU/SC/0206/1981 : AIR 1981 SC 1036; it

was observed that, "Under the new Code, the role of the judge has become more
active rather than passive as it was earlier. Though the judge has to remain
impartial and act like a refree, but it does not mean that he is a passive spectator
and "a mere recording machine". The Judge must participate in the proceedings in
a very subtle manner so as to reach the grass-roots of the truth. He may ask short
questions to elicit more factual information from either party or witness, but such
questions should be asked so as "not to confuse, frighten or intimidate the
witnesses" which action would vitiate the proceedings. The judge is not supposed
to descent into the arena as it were".
Place of trial

Another important feature for the fair trial of a criminal case is the place where such
trial or enquiry will take place. The code prescribes that the trial shall be held before
a Magistrate within whose jurisdiction the offence was committed. The provisions
regarding the place of trial is made under sections 117 to 189 of the Code and are
helpful to the person accused of any offence in the sense that it is easier for him to
collect evidence and witnesses in his defence from that place.

Supply of all relevant documents to the accused

For fair trial, the accused person has to be given full opportunity to defend himself.
This is possible only when he should be supplied with the copies of the charge sheet,
all necessary documents pertaining to the investigation and the statements of the
witnesses called by the police during the course of investigation.

Joinder of charges

Another corollary of the fair trial is that the joinder of charges of the offences the
person accused of.

As regards to the 'joinder of charges', section 219 provides that when a person is
accused of more offences than one of the same kind committed within the space of
twelve months from the first to last of such offences, he may be charged with, and
tried at one trial for any number of them not exceeding three. Thus three charges
can be combined at one trial, but such offences should be of the same kind which
means punishable under the same section of the Indian Penal Code, and should be
committed within a span of twelve months counted from the first to the last offence
of the same kind. In Bhagat Singh v. State, AIR 1952 SC 45; where the accused
was tried in respect of (i) causing the death of A, and thereby committing an offence
punishable under section 307, IPC; (ii) firing a shot at B and C with the intention of
causing their death, and thereby committing the offence punishable under section
307, IPC and (iii) bring a shot at D with the intention of killing him and thereby
committing an offence punishable under section 307 IPC, it was contended on behalf
of the defence that there was a misjoinder of charges as the second charge was
really a charge in respect of two offences (viz. attempt to murder B and attempt to
murder C, and that the accused had been tried for more than three offences in
contravention of section 219(1), Cr PC. Their Lordships of the Supreme Court
however, observed that there was nothing wrong in the trial as the single act of
firing a shot at B and C is one offence and not two offences and the trial was held
to be not bad for misjoinder of charges.

Proceedings in the presence of 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.

Right to Cross-examine the witnesses

In fairness to the accused, he or his counsel must be given full opportunity to cross-
examine the prosecution witnesses. A trial at which the accused or his counsel is
not afforded an opportunity to cross-examine the prosecution witnesses is vitiated
from the very beginning and will be set aside.

Benefit of doubt

When there is any doubt, whether or not, on the basis of the evidence adduced by
the prosecution and the accused, the guilt of the accused is established, the benefit
of such a doubt must go in favour of the accused.

Speedy trial

This is one of the most important features in the interest of criminal justice and
was, therefore, incorporated under the new code of 1973. Any delay keeps the
accused in constant fear and psychological torture, and if he is in the police custody,
the torture of confinement is enhanced. Section 309(1) of the Code prescribes for
the expeditious inquiry or trial of the case.

Rule against 'Double jeopardy'

This is the fundamental right provided to the accused in the constitution of India
wherein, "once acquitted of a charge, he should not be tried for the same charge".

This provisions is intended to prevent what is called 'double jeopardy' and the rule
has also been enshrined in Article 20(2) of our Constitution to ensure that if a person
is tried and acquitted or convicted of an offence, he cannot be tried against for the
same offence or on the same facts for any other offences. This rule is known as the
"rule against double jeopardy" as stated above.

TRIAL OF SUMMONS AND WARRANT CASES

The procedure for trial of summons cases and warrant cases by Magistrates has
been given under Chapters XIX and XX of the Code of Criminal Procedure, 1973
respectively.

A "warrant-case" means a case relating to an offence punishable with death,

imprisonment for life or imprisonment for a term exceeding two years and a
"summons-case" means a case relating to an offence, and not being a warrant-
case. [Clause (w) and (x)] of section 2, Cr PC. All the summons cases are those in
which punishment prescribed is upto two years and the rest are warrant-cases if
 the punishment prescribed is for a term exceeding two years, life sentence or death
sentence.

Warrant cases are dealt with in courts as per the provisions of sections 238 to 250
of Chapter XIX of the "Code".

These are devided into three groups i.e.

A. the cases instituted on a police report;

B. the cases instituted otherwise than on police-report;

C. the cases equally applicable both to cases instituted on a police report

and the cases instituted otherwise than an a police report.

A. The cases instituted on a police report

"Section 238 - Whereunder in any warrant-case instituted on a police report, the

accused appears or is brought before a Magistrate at the commencement of the
trial, the Magistrate shall satisfy himself that he has complied with the provisions
of section 207 of the Code. Section 207 provides for supply of copy of police report
and other documents."

It means that the Magistrate shall facilitate the supply of copy of First Information
Report, the statements of the witnesses recorded by the police during investigation
of the case, and copies of confessions and statements made before any Magistrate
during enquiry or investigation and copies of any other documents forwarded by
the police to the Magistrate alongwith its report/challan under section 173 Cr PC.

Then, if upon considering the police report and documents sent with it under section
173 Cr PC and making such examination if any, of the accused as the Magistrate
thinks necessary and after giving the prosecution and the accused an opportunity
of being heard, the Magistrate considers the charge against the accused to be
groundless, he shall discharge the accused and record his reasons for so doing
(section 239). But according to sub-section (1A) of section 173 the investigation in
relation to rape of a child may be completed within three months from the date on
which the information was recorded by the officer-in-charge of the police station.

It means the Magistrate will hear both accused and the prosecution and would
peruse the police report and documents and statements sent along with it, and if
he then finds that no grounds exist for proceeding against the accused in the trial,
then he would discharge the accused and would record his reasons for doing so.
This 'discharge' would be for the specific offences which prosecution brought before
the court for trial as per its report under section 173 Cr PC. It does not necessarily
mean that the accused cannot be proceeded against for some other offence if there
was evidence prima facie to establish such a charge; Prematha Nath Mukherjee v.
 State of West Bengal, MANU/SC/0083/1960 : AIR 1960 SC 810: 1960 Cri LJ 1165:
[1960] 3 SCR 245.

Discuss briefly the trial of summons and warrant cases. Also discuss the
differences between the two.

Even if at one stage, the Magistrate finds no prima facie case against the accused
and discharges him under section 239 Cr PC, the Magistrate does not become
functus-officio if in proceeding with the case against others, he finds that there is
prima facie case against the accused who he had discharged; Saraswatiben v.
Thakore Lal, MANU/GJ/0067/1966 : AIR 1967 Guj 263.

In case the accused is not discharged under section 239 Cr PC, then a charge is
framed against the accused by the Magistrate under section 240,

Cr PC. The charge is then read over and explained to the accused and he is asked
by the Magistrate whether he pleads guilty of the offence charged or claims to be
tried.

If the accused pleads guilty the Magistrate then records the plea and may in his
discretion, convict him thereon under section 241 Cr PC.

Thereafter, evidence for prosecution is recorded if the accused refuses to plead

guilty and claims trial and a date is fixed for recording the prosecution evidence in
the court.

The prosecution may request in writing to issue summons to any of its witnesses
directing him to attend or to produce any document or other thing. The Magistrate
will then proceed to take all such evidence of the prosecution as may be produced
by it in support of its case.

The accused shall be asked to cross-examine any such witness produced and
examined by the prosecution. The Magistrate on the conclusion of prosecution-
evidence, closes the same and asks the evidence for defence under the provisions
of section 243 of the Code which reads as under:-

Section 243 -

(1) The accused shall then be called to enter upon his defence and
produce his evidence; and if the accused puts in any written
statement, the Magistrate shall file it with the record.

(2) If the accused, after he has entered upon his defence applies to
the Magistrate to issue any process for compelling the attendance of
any witness for the purpose of examination or cross-examination or
the production of any document or other thing, the Magistrate shall
 issue such process unless he considers that such application should
be refused on the ground that it is made for the purpose of vexation
or delay or for defeating the ends of justice and such ground shall be
recorded by him in writing.

Provided that, when the accused had cross-examined or had

the opportunity of cross-examining any witness before
entering on his defence, the attendance of such witness shall
not be compelled under this section, unless the Magistrate is
satisfied that it is necessary for the ends of justice.

(3) The Magistrate may, before summoning any witness on an

application under sub-section (2), require that the reasonable
expenses, incurred by the witness in attending for the purposes of
the trial be deposited in Court.

B. Cases instituted otherwise than on Police Report

Such cases are dealt with by the Magistrate as per provisions of sections 244 to 247
Cr PC which are reproduced hereunder:-

Section 244 -

(1) When, in any warrant-case instituted otherwise than on a police

report, the accused appears or is brought before a Magistrate, the
Magistrate shall proceed to hear the prosecution and take all such
evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue

a summons to any of its witnesses directing him to attend or to
produce any document or other thing.

Section 245 -

(1) If, upon taking all evidence referred to in section 244, the
Magistrate considers, for reasons to be recorded, that no case against
the accused has been made out which, if unrebutted, would warrant
his conviction, the Magistrate shall discharge him.

(2) Nothing in this section shall be deemed to prevent a Magistrate

from discharging the accused at any previous stage of the case if, for
reasons to be recorded by such Magistrate, he considers the charge
to be groundless.

Section 246 -
 (1) If, when such evidence has been taken, or at any previous stage
of the case, the Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence triable under
this Chapter, which such Magistrate is competent to try and which in
his opinion could be adequately punished by him, he shall frame in
writing a charge against the accused.

(2) The charge shall then be read over and explained to the accused
and he shall be asked whether he pleads guilty or has any defence to
make.

(3) If the accused pleads guilty, the Magistrate shall record the plea
and may in his discretion, convict him thereon.

(4) If the accused refuses to plead, or does not plead or claims to be

tried or if the accused is not convicted under sub-section (3), he shall
be required to state, at the commencement of the next hearing of
the case or, if the Magistrate for reasons to be recorded in writing so
thinks fit, forthwith whether he wishes to cross-examine any, and if
so, which, of the witnesses for prosecution whose evidence has been
taken.

Section 247 -

The accused shall then be called upon to enter upon his defence and
produce his evidence, and the provisions of section 243 shall apply
to the case.

Then after recording the evidence of prosecution and that of the

defence, if the Magistrate finds the accused not guilty, he shall then
record an order of acquittal of the accused under section 248 Cr PC,
but if the Magistrate finds the accused guilty of the charged offence
then, after hearing the accused on the question of sentence, if he
does not proceed in accordance with the provisions of section 325 or
section 360 of the Cr PC (order to release convict on probation of
good conduct), he will pass sentence upon him as per law.

Section 249 deals with the situation where the proceedings have been
instituted upon complaint and on any day fixed for hearing of the
case, the complainant is absent, and the offence may be lawfully
compounded or is not a cognizable offence, the Magistrate may, in
his discretion, at any time before the charge has been framed,
discharge the accused.
 The intention of the legislature in introducing this Section 249 is clear
that it does not want the accused to face the trial if the complainant
is absent on any date fixed for hearing of the case by the court but
the offence should be lawfully compoundable or cognizable offence.
The complainant voluntarily chooses not to present himself before
the court in such a case, and the court is entitled to discharge the
accused without going into the merits of the complaint/case.

Section 250 provides for compensation to the accused by the

complainant if the Magistrate thinks that there was no reasonable
ground for making the accusation against the accused and whom he
has discharged or acquitted as per above provisions. The amount of
compensation shall not exceed the amount of fine the Magistrate is
empowered to impose and he shall record and consider any objection
which the complainant or informant may urge against making of the
direction; Kailash v. Laxminarayan, AIR 1966 Raj 364.

TRIAL OF SUMMONS CASES BY MAGISTRATE

Sections 251 to 259 deals with the procedure to be followed in the trial of summons
cases by Magistrates.

Section 251 - When in a summons-case the accused appears or is brought before

the Magistrate, the particulars of the offence of which he is accused shall be stated
to him, and he shall be asked whether he pleads guilty, or has any defence to make,
but it shall not be necessary to frame a formal charge.

The words "and he shall be asked whether he pleads guilty or has any defence to
make" are imperative in their significance. If the provisions of this section have not
been complied with, the plea of guilty made by the accused in such circumstances
would not amount to a plea of guilty; Chandubhai Goverdhanbahi v. State, (1960)
2 GLR 266.

Section 252 reads that "If the accused pleads guilty, the Magistrate shall record the
plea as nearly as possible in the words used by the accused and may, in his
discretion, convict him thereon.

The provisions of the above section are mandatory in nature. If the accused does
not plead guilty, the court is bound to proceed according to law by examining the
prosecution witnesses and then the defence witnesses, if any. Finally, the case is
heard on merits and decided for or against the accused.

Section 253 provides that "Where a summons has been issued under section 206
and the accused desires to plead guilty to the charge without appearing before the
Magistrate, he shall transmit to the Magistrate, by post or by messenger, a letter
containing his plea and also the amount of fine as specified in the summons.

The above simple procedure is for disposing of petty cases without the presence of
the accused but through post or messenger or pleader as the case may be. The
pleader has been authorised to plead guilty on behalf of the accused and to pay fine
on his behalf.

Section 254 provides the procedure when accused is not convicted under section
252 or 253.

This section reads as under:-

Section 254 -

(1) If the Magistrate does not convict the accused under section 252
or section 253, the Magistrate shall proceed to hear the prosecution
and take all such evidence as may be produced in support of the
prosecution and also to hear the accused and take all such evidence
as he produces in his defence.

(2) The Magistrate may, if he thinks fit, on the application of the

prosecution or the accused, issue a summons to any witness directing
him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such

application, require that the reasonable expenses of the witness
incurred in attending for the purpose of the trial be deposited in court.

Section 255 provides for acquittal or conviction of accused after conclusion of the
trial by the Magistrate.

This section says:-

Section 255 -

(1) If the Magistrate, upon taking the evidence referred to in section

254 and such further evidence, if any, as he may, on his own motion,
cause to be produced, finds the accused not guilty, he shall record an
order of acquittal.

(2) Where the Magistrate does not proceed in accordance with the
provisions of section 325 or section 360, he shall, if he finds the
accused guilty, pass sentence upon him according to law.

(3) A Magistrate may, under section 252 or section 255, convict the
accused of any offence triable under this Chapter which form the facts
 admitted or proved, he appears to have committed, whatever may
be the nature of the complaint or summons, if the Magistrate is
satisfied that the accused would not be prejudiced thereby.

The 'taking of evidence' by the Magistrate is must and that cannot stand complied
with by only looking into the police papers which do not form part of a record of the
case, and what they contain is no evidence in law. An order of acquittal passed on
the basis of perusing police papers of the case is illegal; Thakorbhai
Sukhabhai, MANU/GJ/0062/1968 : AIR 1968 Guj 15; Shanti Lal Daya Shanker,
(1962) 1 Cr LJ 817.

Section 256 provides for non-appearance or death.

Section 256 reads as under:-

Section 256 -

(1) If the summons has been issued on complaint, and on the day
appointed for the appearance of the accused, or any day subsequent
thereto on which the hearing may be adjourned, the complainant
does not appear, the Magistrate shall notwithstanding anything
hereinafter contained, acquit the accused unless for some reason, he
thinks it proper to adjourn the hearing of the case to some other day.

Provided that where the complainant is represented by a

pleader or by the officer conducting the prosecution or where
the Magistrate is of opinion that the personal attendance of
the complainant is not necessary, the Magistrate may
dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply
also to cases where the non-appearance of the complainant is due to
his death.

On default of the complainant's appearance, the Magistrate has a discretion either

to dismiss the complaint and acquit the accused or to adjourn the hearing. The
powers given under this section must be exercised reasonably and only in a case
where the complainant has failed to appear without any just cause; Mahesh Parsad
v. Mahavir Singh, MANU/UP/0132/1960 : AIR 1960 All 507; K. Dhulabhai v. P.
Ganesh Bhai, 1969 Cr LJ 729.

Section 257 deals with the withdrawal of the complaint.

It reads as under:-
 "Section 257 - If a complainant, at any time before a final order is passed is
any case under this Chapter, satisfies the Magistrate that there are sufficient
grounds for permitting him to withdraw his complaint against the accused,
or if there be more than one accused, against all or any of them, the
Magistrate may permit him to withdraw the same and shall thereupon acquit
the accused against whom the complaint is so withdrawn".

This section applies to summons cases and not to warrant cases.

Where a case is instituted on a police report, the Magistrate cannot exercise his
power of acquittal on an application of withdrawal made by the person at whose
instance the police moved in the case; B.P. Zina, 1970 Cr LJ 919.

Section 258 says that Magistrate has the power to stop proceedings in certain cases.

It reads as under:-

"Section 238 - In any summons case instituted otherwise than upon

complaint, a Magistrate of the first class or, with the previous sanction of
the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons
to be recorded by him, stop the proceedings at any stage without
pronouncing any judgment and where such stoppage of proceedings is made
after the evidence of the principal witnesses has been recorded, pronounce
a judgment of acquittal, and in any other case, release the accused, and
such release shall have the effect of discharge".

The powers given to Magistrate to stop the proceedings at any stage, in a summons
case instituted otherwise than upon complaint, have to be sparingly used and that
too particularly, in exceptional or unusual circumstances attending the case;
Sanghar Ladha, 1971 Cr LJ 949: MANU/GJ/0043/1971 : AIR 1971 Guj 148.

Where there are no special or unusual circumstances which make it difficult or

impossible for the Magistrate to proceed with the case, he cannot involve the
provisions of this section and stop further proceedings; Lohana Dhiraj Lal v. State
1973 Cr LJ 82.

Section 259 gives power to a Magistrate to convert summons cases into warrant
cases

It reads as under:-

Section 259 - If in the course of trial of a summons-case relating to offence

punishable with imprisonment for a term exceeding six months it appears to
Magistrate that in the interests of justice, the offence should be tried in
accordance with the procedure for the trial of warrant-cases, such Magistrate
may proceed to re-hear the case in accordance with the trial of warrant-
cases.

© Universal law Publishing Co.

 CHAPTER 7

BAIL

Discuss the concept of `Bail'?

Generally speaking, bail means the judicial release from custody. The word 'bail',
as is commonly understood, is comprehensive enough to cover release on one's
bond, with or without sureties.

Bail is one of the cherished rights, claims or privileges conferred upon a person
accused of any offence which would, but for this noble provision, legally deliver him
to jail and keep him in such custody till, he is finally acquitted by a competent court.
'Bail' is, thus, one of the most dignified institutions in any civilized society in which
human values, such as faith and trust, take precedence over everything else.

In the Indian Judicial System, normally a person would be a prisoner in the following
cases:

(a) If he is a detenu;

(b) If he is a pre-trial prisoner;

(c) after conviction

The last category can be further divided into three parts:-

(i) Prisoners whose appeals are pending;

(ii) Prisoners whose bail applications have been rejected by the High Court;

(iii) Prisoners whose convictions have been confirmed by the High Court; S.
Sant Singh v. Secretary, Home Department, Government of Maharashtra, II
(2006) CCR 241 (FB).

The grant, refusal or cancellation of bail, is a judicial act and has to be performed
with judicial case after giving serious consideration to the interest of all parties
concerned.

Bail and personal liberty

Examine the idea of `bail' in the light of Article 21 of the Constitution of India.

Article 21 of the Constitution of India provides for the right to life and personal
liberty. The main interpretation of this Article infers that when the bail is denied
then the personal liberty of an accused is refused. Recently, the Supreme Court in
Kalyan Chandra Sarkar v. Rajesh Ranjan, MANU/SC/0045/2005 : AIR 2005 SC 921;
examined the idea of 'bail' in the light of Article 21 of the Constitution of India. The
court observed that:

"Personal liberty is a constitutional guarantee. However, Article 21 which

guarantees the above right also contemplates deprivation of personal liberty
by procedure established by law. Under the criminal laws of this country, a
person accused of offences which are non-bailable is liable to be detained in
custody during the pendency of trial unless he is released on bail in
accordance with law. Such detention cannot be questioned as being violative
of Article 21 since the same is authorised by law. But even persons accused
of non-bailable offences are entitled for bail if the Court concerned comes to
the conclusion that the prosecution has failed to establish a prima facie case
against him and/or if the Court is satisfied for reasons to be recorded that
in spite of the existence of prima facie case there is a need to release such
persons on bail where fact situations require it to do so. In that process, a
person whose application for enlargement on bail is once rejected is not
precluded from filing a subsequent application for grant of bail if there is a
change in the fact situation. In such cases, if the circumstances then
prevailing require that such persons to be released on bail, in spite of his
earlier applications being rejected, the Courts can do so. The principles of
res judicata and such analogous principles although are not applicable in a
criminal proceedings, still the Courts are bound by the doctrine of judicial
discipline having regard to the hierarchical system prevailing in our country.
The findings of a higher Court or a co-ordinate Bench must receive serious
consideration at the hands of the Court entertaining a bail application at a
later stage when the same had been rejected earlier. In such an event, the
Courts must give due weight to the grounds which weighed with the former
or higher Court in rejecting the bail application. Ordinarily, the issues which
had been canvassed earlier would not be permitted to be reagitated on the
same grounds, as the same would lead to a speculation and uncertainty in
the administration of justice and may lead to forum hunting. The decisions
given by a superior forum, undoubtedly, is binding on the subordinate fora
on the same issue even in bail matters unless of course, there is a material
change in the fact situation calling for a different view being taken.
Therefore, even though there is room for filing a subsequent bail application
in cases where earlier applications have been rejected, the same can be
done if there is a change in the fact situation or in law which requires the
earlier view being interfered with or where the earlier finding has become
obsolete. This is the limited area in which an accused who has been denied
bail earlier, can move a subsequent application. Therefore, it cannot be said
that in view the guarantee conferred on a person under Article 21 of the
Constitution of India, it is open to the aggrieved person to make successive
 bail applications even on a ground already rejected by courts earlier
including the Apex Court of the country."

Bailable and non-bailable offences

'Offence' whether it is bailable or non-bailable depends upon its nature and gravity.
According to section 2(a) of the Code, which provides for the definition of 'bailable'
and 'non-bailable' offences: "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.

Distinction between the two

Define `bailable' and `non-bailable' offences? What are the differences between
the two?

The distinction between 'Bailable' and Non-bailable' offences are:

(i) 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. Non-bailable offence means any other offence.1

(ii) Generally, serious offences i.e., offences punishable with imprisonment

for 3 years or more, have been considered as non-bailable offences while,
petty offences as bailable. But there are exceptions on either side.

(iii) A person accused of a bailable offence has a right to be released on

bail,2 makes it obligatory for a police officer arresting such a person to inform
him of his right to be released on bail.

(iv) The classification of offences into bailable and non-bailable has been
devised for making a threshold decision as to whether the accused should
be released on bail.

Provisions for Bail under the Code

Sections 436, 437, 437A, 438 and 439 of the Cr PC, 1973 as amended till date
provides for the bail under different conditions. Besides, under section 167(2) of
the Code,3 bail should be granted to the accused when he has completed 60 or 90
days (as the case may be) in detention and there is no formal charge-sheet framed
against him. Let us start our discussion with section 436 of the Code.

______________________

1. Section 2(a) Cr PC, 1973.

2. Section 50(2) Cr PC, 1973.

 3. Section 167(2) Cr PC, reads as under:

The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not
jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as
such Magistrate thinks fit, a term not 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 authorise the detention of the accused person, otherwise than in the custody
of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing
so, but no Magistrate shall authorise the detention of the accused person in custody under this
paragraph for a total period exceeding—

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment
for life or imprisonment for a term of not less than ten years;

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said
period of ninety days, or sixty days, as the case may be, the accused person shall be released on
bail if he is prepared to and does furnish bail, and every person released on bail under this sub-
section shall be deemed to be released under the provisions of Chapter XXXIII for the purposes
of that Chapter;]

Contd. from previous page

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is
produced before him;

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall
authorise detention in the custody of the police.

Provision of bail under section 436 of the Code

F's Mother-in-law a patient of asthma and aged 57 years, father-in-law aged 60

years and brother-in-law, an outstanding player of his school cricket team and
aged 15 years are arrested for assaulting in an attempt to wrongfully confine her
(a bailable offence) and murder F (a non-bailable offence). All the accused apply
for bail. They belong to a highly connected family of business magnates. Can the
accused be released on bail? What guidelines should be kept in view while
considering the bail applications? Under what circumstances can the bail be
cancelled?

Section 436 of the Code provides for the provisions 'in what cases bail to be taken'.
This section reads as under:
 "Section 436 -

(1) When any person other than a person accused of a non-bailable

offence is arrested or detained without warrant by an officer-in-
charge of a police station, or appears or is brought before a court,
and is prepared at any time while in the custody of such officer or at
any stage of the proceeding before such court to give bail, such
person shall be released on bail.

Provided that such officer or court, if he or it thinks fit, may,

if such person is indigent and is unable to furnish surety
instead of taking bail from such person, discharge him on his
executing a bond without sureties for his appearance as
hereinafter provided. Provided further that nothing in this
section shall be deemed to affect the provisions of sub-section
(3) of section 116.

(2) Notwithstanding anything contained in sub-section (1), where a

person has failed to comply with the conditions of the bail bond as
regards the time and place of attendance, the court may refuse to
release him on bail, when on a subsequent occasion in the same case
he appears before the court or is brought in custody and any such
refusal shall be without prejudice to the powers of the court to call
upon any person bound by such bound to pay the penalty thereof
under section 446."

Provisions as regards bail can be broadly divided into two categories, viz.;

(i) bailable cases; and

(ii) non-bailable cases.

In the first class, the grant of bail is a matter of course. It may be given either by
the police officer in-charge of a police station having the accused in his custody or
by the Court. The release may be ordered on the accused executing a bond and
even without sureties.1 When a person who is arrested is the accused of bailable
offence, no needless impediments should be placed in the way of being admitted to
bail. In such cases, the man is ordinarily to be at liberty, and it is only if he is unable
to furnish such moderate security, he is required to remain in detention, if his
apperance is required before a court in a pending inquiry. The section is imperative,
and under its provisions the Magistrate is bound to release the person on bail or
recognizance. The basic rule is to release him on bail unless there are circumstances
suggesting the possibility of his fleeing from justice or thwarting the course of
justice; State of Rajasthan v. Balchand, 1978 Cr LJ 195
(SC): MANU/SC/0152/1977 : AIR 1977 SC 2447.
 Section 436 does not state that a person released must give a bond himself. The
person giving bail enters into a contract with a penalty Clause to produce the
accused person before a Magistrate when called upon. He is the principal. The
person for whom bail is given is the subject of the contract. If the person giving bail
fails to perform this contract than the penalty Clause may be put into operation
against him although it is not necessary to exact the penalty in full; Inder, (1941)
22 Lah 519.

_____________________

1. Vide section 436(1) Cr PC, 1973.

Conditions to be satisfied under section 436

This section deals with the grant of bail in respect of non-bailable offences in general
where a person is arrested or detained without a warrant. For the grant of bail under
this section, the following conditions must be satisfied:-

(i) The person has been accused of a non-bailable offence;

(ii) Such person has been arrested or detained without warrant by an officer-
in-charge of a police station or appears or is brought before a Court;

(iii) He is prepared to give bail.

If all the three conditions mentioned above are satisfied, then bail can be claimed
as a matter of right. The word used is "shall", and not "may", and therefore, there
is no discretion either with the police officer or with the Court; State of Mysore v.
Biswanath Rao, AIR 1966 Mys 71.

BAIL IN NON-BAILABLE CASES

Discuss the provisions of bail in non-bailable cases?

Provisions for bail in case of person accused of non-bailable case is provided under
sections 437 and 439 of the Code. Section 437 says that:

"437. When bail may be taken in case of non-bailable offence.-

(1) When any person accused of, or suspected of, the commission of
any non-bailable offence is arrested or detained without warrant by
an officer in charge of a police station or appears or is brought before
a Court other than the High Court or Court of Session, he may be
released on bail, but-
 (i) such person shall not be so released if there appear
reasonable grounds for believing that he has been guilty of an
offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a

cognizable offence and he had been previously convicted of
an offence punishable with death, imprisonment for life or
imprisonment for seven years or more, or he had been
previously convicted on two or more occasions of a cognizable
offence punishable with imprisonment for three years or more
but not less than seven years:

Provided that the Court may direct that a person

referred to in clause (i) or clause (ii) be released on
bail if such person is under the age of sixteen years or
is a woman or is sick or infirm:

Provided further that the Court may also direct that a

person referred to in clause (ii) be released on bail if it
is satisfied that it is just and proper so to do for any
other special reason:

Provided also that the mere fact that an accused

person may be required for being identified by
witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise
entitled to be released on bail and gives an undertaking
that he shall comply with such directions as may be
given by the Court:

Provided also that no person shall, if the offence

alleged to have been committed by him is punishable
with death, imprisonment for life, or imprisonment for
seven years or more, be released on bail by the Court
under this sub-section without giving an opportunity of
hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of the

investigation, inquiry or trial as the case may be, that there are no
reasonable grounds for believing that the accused has committed a
non-bailable offence, but that there are sufficient grounds for further
inquiry into his guilt, the accused shall, subject to the provisions of
section 446A and pending such inquiry, be released on bail, or, at the
discretion of such officer or Court, on the execution by him of a bond
without sureties for his appearance as hereinafter provided.
 (3) When a person accused or suspected of the commission of an
offence punishable with imprisonment which may extend to seven
years or more or of an offence under Chapter VI, Chapter XVI or
Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of,
or conspiracy or attempt to commit, any such offence, is released on
bail under sub-section (1) the Court shall impose the conditions,-

(a) that such person shall attend in accordance with the

conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to

the offence of which he is accused, or suspected, of the
commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with
the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer or tamper with
the evidence, and may also impose, in the interests of justice,
such other conditions as it considers necessary.

(4) An officer or a Court releasing any person on bail under sub-

section (1), or sub-section (2), shall record in writing his or its
reasons or special reasons for so doing.

(5) Any Court which has released a person on bail under sub-section
(1), or sub-section (2), may, if it considers it necessary so to do,
direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused
of any non-bailable offence is not concluded within a period of sixty
days from the first date fixed for taking evidence in the case, such
person shall, if he is in custody during the whole of the said period,
be released on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused
of a non-bailable offence and before judgment is delivered the Court
is of opinion that there are reasonable grounds for believing that the
accused is not guilty of any such offence, it shall release the accused,
if he is in custody, on the execution by him of a bond without sureties
for his appearance to hear judgment delivered."

Section 437A of the Code provides that the bail can require the accused person to
apepar before next appellate court which reads as under:
 "437A. Bail to require accused to appear before next appellate Court.-

(1) Before conclusion of the trial and before disposal of the appeal,
the Court trying the offence or the Appellate Court, as the case may
be, shall require the accused to execute bail bonds with sureties, to
appear before the higher Court as and when such Court issues notice
in respect of any appeal or petition filed against the judgment of the
respective Court and such bail bonds shall be in force for six months.

(2) If such accused fails to appear, the bond stand forfeited and the
procedure under section 446 shall apply."

While special powers have been vested in the High Court or Court of Session
regarding bail under section 439 of the Code. This section provides that:

"439. Special powers of High Court or Court of Session regarding bail.-

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be

released on bail, and if the offence is of the nature specified
in sub-section (3) of section 437, may impose any condition
which it considers necessary for the purposes mentioned in
that sub-section;

(b) that any condition imposed by a Magistrate when releasing

any person on bail be set aside or modified:

Provided that the High Court or the Court of Session

shall, before granting bail to a person who is accused
of an offence which is triable exclusively by the Court
of Session or which, though not so triable, is
punishable with imprisonment for life, give notice of
the application for bail to the Public Prosecutor unless
it is, for reasons to be recorded in writing, of opinion
that it is not practicable to give such notice.

(2) A High Court or Court of Session may direct that any person who
has been released on bail under this Chapter be arrested and commit
him to custody."

Bail in non-bailable cases: factors to be considered

What factors are to be considered by a court of law while granting bail in non-
bailable cases?
In Lokesh Singh v. State of Uttar Pradesh, MANU/SC/8138/2008 : AIR 2009 SC 94,
the Supreme Court held that at the stage of granting bail a detailed examination of
evidence and elaborate documentation of the merits of the case has not be
undertaken. But that does not mean that while granting bail some reasons for prima
facie concluding why bail was being granted is not required to be indicated. While
dealing with an application for bail, there is a need to indicate in the order, reasons
for prima facie concluding why bail was being granted particularly where an accused
was charged of having committed a serious offence. It is necessary for the courts
dealing with application for a bail to consider among other circumstances, the
following factors also before granting bail, they are:

(i) The nature of accusation and the severity of punishment in case of

conviction and the nature of supporting evidence:

(ii) Reasonable apprehension of tampering of the witness or apprehension

of threat to the complainant:

(iii) Prima facie satisfaction of the Court in support of the charge.

In B.N. Jaiswal v. Munna, MANU/SC/8441/2008 : AIR 2009 SC 1021, it was held by

the Supreme Court that it is now a settled law that complainant can always question
the order granting bail if the said order is not validly passed. It is not as if once a
bail is granted by any court, the only way is to get it cancelled on account of its
misuse. While granting bail, particularly in serious cases like murder some reasons
justifying the grant are necessary. Thus the Supreme Court set aside a bail where
no reasons were given while granting the bail and it has been granted almost
mechanically without considering the pros and cons of the matter.

In Jayendra Saraswathi Swamigal v. State of Tamil Nadu, MANU/SC/0017/2005 :

AIR 2005 SC 716,1 it was observed by the G.P. Mathur, J. that, the considerations
which normally weigh with the Court in granting bail in non-bailable offences are-

(i) the nature and seriousness of offence;

(ii) the character of the evidence;

(iii) circumstances which are peculiar to the accused;

(iv) a reasonable possibility of the presence of the accused not being secured
at the trial;

(v) reasonable apprehension of witnesses being tampered with;

(vi) the larger interest of the public or the State and other similar factors
which may be relevant in the facts and circumstances of the case.
The Supreme Court in Anwari Begum v. Sher Mohammad, IV (2005) CCR 25 (SC);
Ram Govind Upadhyay v. Sudarshan Singh, II (2002) CCR 16 (SC): II (2002) SLT
587: MANU/SC/0203/2002 : (2002) 3 SCC 598; Puran v. Rambilas, III (2001) SLT
869: II (2001) CCR 255 (SC): MANU/SC/0326/2001 : (2001) 6 SCC 338; and in
Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, II (2004) CCR 16 (SC):
II (2004) SLT 605: JT 2004 (3) SC 442; further provided that, the Court dealing
with the application for bail is required to exercise its discretion in a judicious
manner and not as a matter of course.

There is a need to indicate in the order, reasons for prima facie concluding why bail
was being granted particularly where an accused was charged of having committed
a serious offence. It is necessary for the Courts dealing with application for bail to
consider among other circumstances, the following factors also before granting bail,
they are:

(1) the nature of accusation and the severity of punishment in case of

conviction and the nature of supporting evidence;

(2) reasonable apprehension of tampering of the witness or apprehension of

threat to the complainant;

(3) prima facie satisfaction of the Court in support of the charge.

Any order de hors of such reasons suffers from non-application of mind.

In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0214/2004 :

(2004) 7 SCC 528: II (2004) SLT 605; it was held by the Supreme Court that, the
law in regard to grant or refusal of bail is very well settled. The court granting bail
should exercise its discretion in a judicious manner and not as a matter of course.
Though at the stage of granting bail, a detailed examination of evidence and
elaborate documentation of the merit of the case need not be undertaken, there is
a need to indicate in such orders reasons for prima facie concluding why bail was
being granted particularly where the accused is charged of having committed a
serious offence. Any order devoid of such reasons would suffer from, non-
application of mind. It is also necessary for the Court granting bail to consider
among other circumstances, the following factors also before granting bail; they
are:

(a) The nature of accusation and the severity of punishment in case of

conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension

of threat to the complainant.

(c) Prima facie satisfaction of the Court in support of the charge; Ram Govind
Upadhyay v. Sudarshan Singh, II (2002) SLT 587: II (2002) CCR 16
 (SC): MANU/SC/0203/2002 : 2002 (3) SCC 598 and Puran v. Ram Bilas, III
(2001) SLT 869: II (2001) CCR 255 (SC): MANU/SC/0326/2001 : 2001 (6)
SCC 338.

While a vague allegation that accused may tamper with the evidence or witnesses
may not be a ground to refuse bail, if the accused is of such character that his mere
presence at large would intimidate the witnesses or if there is material to show that
he will use his liberty to subvert justice or tamper with the evidence, then bail will
be refused.1

In Anil Ari v. State of West Bengal, MANU/SC/0148/2009 : AIR 2009 SC 1564, the
Supreme Court held that the mere fact that during the period when the accused
persons were on bail during trail there was no misuse of liberties, does not per se
warrant suspension of execution of sentence and grant of bail. What really is
necessary to be considered is whether reasons existed to suspend the execution of
sentence and thereafter grant bail.

Cancellation of Bail

Can a bail once granted be cancelled?

It should be remembered at the outset that the grant of bail in the case of non-
bailable offence cannot be claimed as a matter of right; it is purely discretionary.
And while granting bail, the Court has to ensure that there is no reasonable ground
for believing that the accused or detained person has been guilty of an offence-
punishable with death or imprisonment for life.

The formation of such belief does not and cannot be taken in vacuum. Such belief
will be founded on facts as come to light during the course of investigation
conducted by the Police Officer. Thus, if on the basis of the facts discovered during
the investigation, any incriminating matter comes to the knowledge of the
investigating officer and such incrimination matter prima facie establishes the guilt
of the accused to the extent that he may possibly be sentenced to death or life
imprisonment, bail shall not be granted, or if bail has been granted, it may be
cancelled vide section 437(5) and sub-section (2) of section 439 and such a person
may be arrested and committed to custody.

In Panchanan Mishra v. Digambar Mishra, 1 (2005) SLT 546: I (2005) CCR 77

(SC): MANU/SC/0038/2005 : 2005 (3) SCC 143; this Court observed:

"The object underlying the cancellation of bail is to protect the fair trial and
secure justice being done to the society by preventing the accused who is
set at liberty by the bail order from tampering with the evidence in the
heinous crime... It hardly requires to be stated that once a person is released
on bail in serious criminal cases where the punishment is quite stringent and
 deterrent, the accused in order to get away from the clutches of the same
indulge in various activities like tampering with the prosecution witnesses,
threatening the family members of the deceased victim and also create
problems of law and order situation."

In Gurcharan Singh v. Delhi Administration, AIR 1978 SC 179; bail was granted to
the accused by the Session Judge of Delhi. On appeal, the High Court, cancelled the
bail, and the order of cancellation of the bail by the High Court, was upheld by their
Lordships of the Supreme Court.

_________________

1. State through C.B.I. v. Amarmani Tripathy, IV (2005) CCR 33 (SC).

In this case, various factors were taken into consideration by the High Court and by
the Supreme Court. The case had already assumed political colouring and there
were misgivings in the mind of the general public as to the manner in which the
dacoit Sunder was alleged to have committed suicide. Secondly, the appellants were
senior police officials of the rank of Deputy Inspector General of Police,
Superintendent of Police, Deputy Superintendent of Police and so on. The case was
investigated by the C.B.I. and the witnesses were mostly the junior police officials
who had worked at one time or the other, under the appellants. There was every
likelihood that such officials would not hesitate to misuse the liberty allowed by bail
pressurizing the witnesses or by tampering with the prosecution evidence. It was
alleged by the prosecution that these officials had already indirectly or directly
exerted a lot of pressure on the eye-witnesses of the prosecution so that some of
them had become 'hostile' and had to be declared so. It was against this background
that their Lordships observed that the order of the High Court cancelling the bail
was correct.

In the light of various decisions of the Courts regarding cancellation of bail, the
following are, generally, the factors and conditions under which bail already granted
may be cancelled:-

(i) where after the grant of the bail, the accused has committed the same
offence for which he is being tried, or has been convicted and thereby proves
that he is unfit to be released on bail;

(ii) where after his release on bail, the accused hampers the investigation or
prevents the search of places under his control for the corpus delicti or for
other incriminating documents or things;

(iii) where after his release on bail, the accused tampers with the evidence,
tries to intimidate the prosecution witnesses, or tries to eradicate the trace
of evidence relating to the offence with which he is charged;
 (iv) where he tries to run away to a foreign country or goes underground or
beyond the control of his sureties;

(v) if, after his release on bail, he commits acts of violence, in revenge,
against the police and the prosecution witnesses or against those who have
booked him, or had complaint against him to the police etc.

Release on bail is a privilege and not a right; and in countries whose constitutions
are founded on the fundamental principles of human liberty and freedom, "bail, and
not jail" is becoming the rule. But such privilege presupposes that the liberty
allowed by the grant of bail should not be abused. When an accused crying or
shouting in the name of justice, claims release on bail, it becomes incumbent on
him not to disturb the course of justice which may be done to him. Thus where such
a person after his release on bail, indulges in acts which are violative of the limited
liberty allowed to him or interferes with the course of justice by tampering with
evidences and by creating hurdles in the way of the prosecution or uses his status,
position and wealth to influence the outcome of the case in his favour, then such a
person loses the privilege of bail.

Distinction between rejection and cancellation of bail

In Dolat Ram v. State of Haryana, MANU/SC/0921/1995 : 1995 (1) SCC 349; the
distinction between the factors relevant for rejecting bail in a non-bailable case and
cancellation of bail already granted, was brought out:

"Rejection of bail in a non-bailable case at the initial stage and the

cancellation of bail so granted, have to be considered and dealt with on
different basis. Very cogent and overwhelming circumstances are necessary
for an order directing the cancellation of the bail, already granted. Generally
speaking, the grounds for cancellation of bail, broadly (illustrative and not
exhaustive) are: interference or attempt to interfere with the due course of
administration of justice or evasion or attempt to evade the due course of
justice or abuse of the concession granted to the accused in any manner.
The satisfaction of the Court, on the basis of material placed on the record
of the possibility of the accused absconding is yet another reason justifying
the cancellation of bail. However, bail once granted should not be cancelled
in a mechanical manner without considering whether any supervening
circumstances have rendered it no longer conducive to a fair trial to allow
the accused to retain his freedom by enjoying the concession of bail during
the trial."

Principle of res-judicata vis-a-vis successive bail applications

The principles of res judicata and such analogous principles although are not
applicable in a criminal proceeding, still the Court are bound by the doctrine of
 judicial discipline having regard to the hierarchical system prevailing in our country.
The findings of a higher Court or a co-ordinate Bench must receive serious
consideration at the hand of the Court entertaining a bail application at a later stage
when the same had been rejected earlier. In such an event, the Courts must give
due weightage to the grounds which weighed with the former or higher Court in
rejecting the bail application. Ordinarily, the issues which had been canvassed
earlier would not be permitted to be reagitated on the same grounds, as the same
would lead to a speculation and uncertainty in the administration of justice and may
lead to forum hunting; Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu
Yadav, MANU/SC/0045/2005 : AIR 2005 SC 921.

Bail to require accused to appear before next appellate court

Section 437A provides that before conclusion of the trial and before disposal of the
appeal, the court trying the offence or the appellate court, as the case may be, shall
require the accused to execute bail bonds with sureties, to appear before the higher
court as and when such court issues notice in respect of any appeal or petition filed
against the judgment of the respective court and such bail bonds shall be in force
for six months. If the accused fails to appear the bond stand forfeited and the
procedure under section 4466 shall apply.

ANTICIPATORY BAIL

What considerations or conditions are weighed by the courts while granting or

refusing bail in an anticipatory bail case?

"Anticipatory bail, being an extraordinary remedy, must be allowed only in

extraordinary situations". Comment.

P, a former minister alleges that he has been falsely implicated in a case of

receiving kickbacks from a foreign country. P, apprehending his arrest moves an
application for `anticipatory bail'. What factors should be kept in mind while
considering P's application?

The facility which section 438 of the Code gives is generally referred to as
'anticipatory bail'. This expression which was used by the Law Commission in its
41st Report is neither used in the section nor in its marginal note. But the
expression 'anticipatory bail' is a convenient mode of indication that it is possible to
apply for bail anticipation of arrest. Any order of bail can be effective only from the
time of arrest of the accused. Wharton's Law Lexicon explains 'bail' as 'to set at
liberty a person arrested or imprisoned, on security being taken for his appearance.'
Thus, bail is basically release from restraint, more particularly the custody of police.
The distinction between an ordinary order of bail and an order under section 438 of
the Code is that whereas the former is granted after arrest, and therefore means
release from custody of the police, the latter is granted in anticipation of arrest and
 is therefore effective at the very moment of arrest; Gurbaksh Singh Sibbia v. State
of Punjab, MANU/SC/0215/1980 : 1980 (2) SCC 565.

Section 46(1) of the Code, which deals with how arrests are to be made, provides
that in making an arrest the police officer or 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". The order under section 438 of the
Code is intended to confer conditional immunity from the touch as envisaged by
section 46(1) of the Code or any confinement; Adri Dharan Das v. State of West
Bengal, I (2005) CCR 221 (SC).

The Supreme Court in Balachand Jain v. State of Madhya Pradesh, AIR 1977 SC
366; has described the expression 'anticipatory bail' as misnomer. It is well-known
that bail is ordinary manifestation of arrest, that the Court thinks first to make an
order is that in the event of arrest, a person shall be released on bail. Manifestly,
there is no question of release on bail unless the accused is arrested, and therefore,
it is only on an arrest being effected the order becomes operative. The power
exercisable under section 438 is somewhat extraordinary in character and it is only
in exceptional cases where it appears that the person may be falsely implicated or
where there are reasonable grounds for holding that a person accused of an offence
is not likely to otherwise misuse his liberty then power is to be exercised under
section 438. The power being of important nature, it is entrusted only to the higher
echelons of judicial forums, i.e. the Court of Session or the High Court. It is the
power exercisable in case of an anticipated accusation of non-bailable offence. The
object which is sought to be achieved by section 438 of the Code is that the moment
a person is arrested, if he has already obtained an order from the Court of Session
or High Court, he shall be released immediately on bail without being sent to jail.

Section 438 of the Code reads as under:

(i) A, a top government functionary, accused of murder whose underlings

(subordinate officials) are the witnesses in the case, is granted bail by the
Session Court on the ground that he is holding a responsible position and is
unlikely to jump the bail.

(ii) B, in apprehension of being falsely arrested in connection with a non-bailable

offence, applies for an anticipatory bail and the Session Judge, in his indulgence
(generosity) orders that the applicant shall be released on bail "whenever
arrested, for whichever offence, whatsoever".

(iii) A, a notorious anti-social and smuggler, on the basis of a newspaper report

that the government was seriously contemplating a crack-down on smugglers
apprehended his arrest and made an application for grant of anticipatory bail
before the High Court. Decide.
 Section 438 -

(1) When any person has reason to believe that he may be arrested
on an accusation of having committed a non-bailable offence, he may
apply to the High Court or the Court of Session for a direction under
this section; and that court may, if it thinks fit, direct that in the event
of such arrest, he shall be released on bail.

(2) When the High Court or the Court of Sessions makes a direction
under sub-section (1), it may include such directions in the light of
the facts of the particular case, as it may think fit, including-

(i) a condition that the person shall make himself available for
interrogation by a police officer as and when required;

(ii) a condition that the person shall not, directly or indirectly,

make any inducement threat or promise to any person
acquainted with the facts of the case so as to dissuade him
from disclosing such facts to the court or to any police officer;

(iii) a condition that the person shall not leave India without
the previous permission of the Court;

(iv) such other condition as may be imposed under sub-

section (3) of section 437, as if the bail were granted under
that section.

(3) If such person is thereafter arrested without warrant by an officer

in charge of a police station on such accusation, and is prepared
either at the time of arrest or at any time while in custody of such
officer to give bail, he shall be released on bail, and if a Magistrate
taking cognizance of such offence decides that a warrant should be
issued in the first instance against that person, he shall issue a
bailable warrant in conformity with the direction of the court under
sub-section (1).

From this section, it is clear that special powers have been granted/conferred only
on the High Court and the Court of Session for directing a person on bail previous
to his arrest, what is commonly known as anticipatory bail, imposing such conditions
as the court thinks fit including the conditions laid down in clauses (i), (ii), (iii) and
(iv) of sub-section (2). The order of anticipatory bail shall take effect at the time of
arrest.

Section 438 was inserted in the Code of Criminal Procedure 1973, in order to see
that the life and liberty of the innocent person is not jeopardized on flimsy and
frivolous grounds at the instance of irresponsible and unscrupulous persons or
officers who may be in charge of prosecution.

In Bal Chand Jain v. State of Madhya Pradesh, AIR 1977 SC 366, the Supreme Court
discussed the utility and significance of this new provision. In para 15 of the
judgment, the Supreme Court observed that:

"As recommended by the Commission a new provision is being made

enabling the Supreme Court to grant anticipatory bail, i.e., a direction to
release a person on bail, issued even before the person is arrested - with a
view to avoid the possibility of the person hampering the investigation,
special provision is being made that the Court granting anticipatory bail may
impose such conditions as it thinks fit."

In Salauddin Abdulsamad Shaikh v. State of Maharashtra, MANU/SC/0280/1996 :

AIR 1996 SC 1042; it was observed as follows:

"Anticipatory bail is granted in anticipation of arrest in non-bailable cases,

but that does not mean that the Regular Court, which is to try the offender,
is sought to be bypassed and that is the reason why the High Court very
rightly fixed the outer date for the continuance of the bail and on the date
of its expiry directed the petitioner to move the Regular Court for bail. That
is the correct procedure to follow because it must be realized that when the
Court of Sessions or the High Court is granting anticipatory bail, it is granted
at a stage when the investigation is incomplete and, therefore, it is not
informed about the nature of evidence against the alleged offender. It is,
therefore, necessary that such anticipatory bail orders should be of a limited
duration only and ordinarily on the expiry of that duration or extended
duration the Court granting anticipatory bail should leave it to the Regular
Court to deal with the matter on an appreciation of evidence placed before
it after the investigation has made progress or the charge-sheet submitted."

In K.L. Verma v. State, (1996) 7 SCALE 20; the Apex Court observed as follows:

"This Court; further observed that anticipatory bail is granted in anticipation

of arrest in non-bailable cases, but that does not mean that the Regular
Court, which is to try the offender, is sought to be bypassed. It was,
therefore, pointed out that it was necessary that such anticipatory bail orders
should be of a limited duration only and ordinarily on the expiry of that
duration or extended duration the Court granting anticipatory bail should
leave it to the Regular Court to deal with the matter on an appreciation of
evidence place before it after the investigation has made progress or the
charge-sheet is submitted. By this, what the Court desired to convey was
that an order of anticipatory bail does not enure till the end of trial but it
must be of limited duration as the Regular Court cannot be bypassed. The
 limited duration must be determined having regard to the facts of the case
and the need to give the accused sufficient time to move the Regular Court
for bail and to give the Regular Court sufficient time to determine the bail
application. In other words, till the bail application is disposed of one way or
the other the Court may allow the accused to remain on anticipatory bail. To
put it differently, anticipatory bail may be granted for a duration which may
be extend to the date on which the bail application is disposed of or even a
few days thereafter to enable the accused persons to move the higher Court,
if they so desire."

In Union of India v. P.N Aggarwal, MANU/SC/4230/2008 : AIR 2009 SC 254, and

Gurbaksh Singh v. State of Punjab, MANU/SC/0215/1980 : (1980) 2 SCC 565, the
Supreme Court held that no blanket order of a bail can be passed by a Court while
exercising power under section 438 of the Cr PC. A blanket order of anticipatory
bail is bound to cause serious interference with both the right and the duty of the
police in the matter of investigation because, regardless of what kind of offence is
alleged to have been committed by the applicant and when, an order of bail which
comprehends allegedly unlawful activity of any description whatsoever, will prevent
the police from arresting the applicant even if he commits, say, a murder in the
presence of the public. Such an order can then become a charter of lawlessness and
a weapon to stifle prompt investigation into offences which could not possibly be
predicated when the order was passed. Therefore, the court which grants
anticipatory bail must take care to specify the offence or offences in respect of which
alone the order will be effective. The power should not be exercised in a vacuum.

In Adri Dharan Das v. State of West Bengal, I (2005) CCR 221 (SC);

the Supreme Court observed that section 438 is a procedural provision

which is concerned with the personal liberty of an individual who is entitled to plead,
innocence, since he is not on the date of application for exercise of power under
section 438 of the Code convicted for the offence in respect of which he seeks bail.
The applicant must show that he has 'reason to believe' that he may be arrested in
a non-bailable offence. Use of the expression 'reason to believe' shows that the
applicant may be arrested must be founded on reasonable grounds. Mere "fear", is
not 'belief' for which reason it is not enough for the applicant to show that has some
sort of vague apprehension that some one is going to make an accusation against
him in pursuance of which he may be arrested. Grounds on which the belief of the
applicant is based that he may be arrested in non-bailable offence must be capable
of being examined. If an application is made to the High Court or the Court of
Session, it is for the Court concerned to decide whether a case has been made out
of for granting the relief sought. The provisions cannot be invoked after arrest of
the accused. A blanket order should not be generally passed. It flows from the very
language of the section which requires the applicant to show that he has reason to
 believe that he may be arrested. A brief can be said to be founded on reasonable
grounds only if there is something tangible to go by on the basis of which it can be
said that the applicant's apprehension that he may be arrested is genuine. Normally,
a direction should not issue to the effect that the applicant shall be released on bail
"whenever arrested for whichever offence whatsoever". Such 'blanket order' should
not be passed as it would serve as a blanket to cover or protect any and every kind
of allegedly

unlawful activity. An order under section 438 is a device to secure the individual's
liberty, it is neither a passport to the commission of crimes nor a shield against any
and all kinds of accusations likely or unlikely. On the facts of the case, considered
in the background of legal position set out above, this does not prima facie appear
to be a case where any order in terms of section 438 of the Code can be passed.

Whether Court can pass an interim order during pendency of application under
section 438, Cr PC?

What the accused can do after surrendering to custody is to file an application in

terms of section 437 or 439, as the case may be. Even otherwise, the direction
which a Court can issue under section 438 of the Code is that in the event of arrest
of an accused on an accusation of committing a non-bailable offence, he shall be
released on bail subject to such conditions as the Court may deem fit to impose. An
application under section 438 of the Code can be moved only by a person who has
not already been arrested. Once he is arrested, his remedy is to move the concerned
Court either under section 437 or section 439 of the Code. In the very nature of the
direction which the Court can issue under section 438 of the Code, it is clear that
the direction is to be issued only at the pre-arrest stage. The direction becomes
operative only after arrest. The condition precedent for the operation of the
direction issued is arrest of the accused. This being so, the irresistible inference is
that while dealing with an application under section 438 of the Code, the Court
cannot restrain arrest.

Ordinarily, arrest is a part of the process of investigation intended to secure several

purposes. The accused may have to be questioned in detail regarding various facts
of motive, preparation, commission and aftermath of the crime and the connection
of other persons, if any, in the crime. There may be circumstances in which the
accused may provide information leading to discovery of material facts. It may be
necessary to curtail his freedom in order to enable the investigation to proceed
without hindrance and to protect witnesses and persons connected with the victim
of the crime, to prevent his disappearance to maintain law and order in the locality.
For these or other reasons, arrest may become inevitable part of the process of
investigation. The legality of the proposed arrest cannot be gone into in an
application under section 438 of the Code. The role of the investigator is well-
defined and the jurisdictional scope of interference by the Court in the process of
 investigation limited. The Court ordinarily will not interfere with the investigation of
a crime with the arrest of accused in a cognizable offence. An interim order
restraining arrest, if passed while dealing with an application under section 438 of
the Code will amount to interference in the investigation, which cannot, at any rate,
be done under section 438 of the Code; Adri Dharan Das v. State of West Bengal,
I (2005) CCR 221 (SC).

Section 438 vis-a-vis section 439 of Cr PC

From bare reading of both the aforesaid sections, one can witness that both the
sections operate in different field. The provisions that for making an application in
terms of section 439 of the Code a person has to be in custody. Section 438 of the
Code deals with "Direction for grant of bail to person apprehending arrest".

In Niranjan Singh v. Prabhakar Rajaram Kharote, MANU/SC/0182/1980 : AIR 1980

SC 785; there cannot be any doubt that unless a person is in custody, an application
for bail under section 439 of the Code would not be maintainable. The question
when a person can be said to be in custody within the meaning of section 439 of
the Code came up for consideration before this Court in the aforesaid decision.

Section 439 the fundamental requirement is that the accused should be in custody.
The protection in terms of section 438 is for a limited duration during which the
Regular Court has to be moved for bail. Obviously, such bail is bail in terms of
section 439 of the Code, mandating the applicant to be in custody. Otherwise, the
distinction between orders under sections 438 and 439 shall be rendered
meaningless and redundant; Adri Dharan Das v. State of West Bengal, I (2005)
CCR 221 (SC).

In Sunita Devi v. State of Bihar, MANU/SC/1032/2004 : AIR 2005 SC 498; it was

observed that, for making an application under section 439, the fundamental
requirement is that the accused should be in custody. The protection in terms of
section 438 is for a limited duration during which the regular Court has to be moved
for bail. Obviously, such bail is bail in terms of section 439 of the Code, mandating
the applicant to be in custody. Otherwise, the distinction between order under
sections 438 and 439 shall be rendered meaningless and redundant. If the
protective umbrella of section 438 is extended for unlimited period, the result would
be clear bypassing of what is mandated in section 439 regarding custody.

When should the Apex Court interfere with orders granting bail?

This question was decided in the year 1986 by the Constitutional Bench of the
Supreme Court in Bihar Legal Support Society v. Chief Justice of
India, MANU/SC/0213/1986 : 1986 (4) SCC 764; State through C.B.I. v. Amarmani
Tripathi, IV (2005) CCR 33 (SC); in the following words:
 "The Apex Court must interfere only in the limited class of cases where there
is a substantial question of law involved which needs to be finally laid at rest
by the Apex Court for the entire country or where there is grave, blatant and
atrocious miscarriage of justice. Sometimes, we Judges feel that when a
case comes before us and we find that injustice has been done, how can we
shut our eyes to it. But the answer to this anguished query is that the Judges
of the Apex Court may not shut their eyes to injustice but they must equally
not keep their eyes too wide open, otherwise the Apex Court would not be
able to perform the high and noble role which it was intended to perform
according to the faith of the Constitution makers. It is for this reason that
the Apex Court has evolved, a matter of self-discipline, certain norms to
guide it in the exercise of its discretion in cases where special leave petitions
are filed against orders granting or refusing bail or anticipatory bail... We
reiterate this police principle laid down by the bench of this Court and hold
that this Court should not ordinarily, save in exceptional cases, interfere with
orders granting or refusing bail or anticipatory bail, because these are
matters in which the High Court should normally be the final arbiter."

Discretion in granting anticipatory bail-guidelines

Discuss the guidelines drawn by the Supreme Court for the courts of law in order
to exercise their discretion to grant anticipatory bail?

Guiding principles for granting anticipatory bail can be summarised as under:

(1) In Gurbaksh Singh Sibbia v. State of Punjab, MANU/SC/0215/1980 : AIR

1980 SC 1632; the Apex Court has laid down the various principles in this
regard as follows:

(i) The legislature has conferred very wide discretion on the High
Court and the Court of Session to grant anticipatory bail. These courts
in the exercise of their judicial discretion can grant such bail if they
consider fit so to do on the particular facts and circumstances of the
case and on such conditions as the case may warrant (use of words
"may, if it thinks fit" in [section 438(1)]. The limitations imposed in
section 437 are not relevant under section 438. Thus, there is no
restriction on granting anticipatory bail merely because the alleged
offence is one punishable with death or life imprisonment.

(ii) The use of the expression "reason to believe" in section 438(1)

shows that the belief that the appellant may be arrested must be
founded on reasonable grounds. Mere 'fear' is not 'belief', thus a
vague apprehension that some one is going to make an accusation
against him, in pursuance of which he may be arrested, is not
enough. Such belief must be founded on some tangible grounds
 which the court can examine objectively. Specific events and facts
must be disclosed by the applicant in order to enable the court to
judge the reasonableness of his belief.

(iii) The High Court or Court of Session while granting anticipatory

bail may impose conditions [section 438 (2)] with a view to strike a
balance between the individual's right to personal freedom and the
investigational rights of the police. For instance, the court may direct
that the applicant should surrender himself to the police for a brief
period if a discovery is to be made under section 27 of the Evidence
Act.

(2) In Balchand Jain v. State of Madhya Pradesh, MANU/SC/0172/1976 :

(1976) 4 SCC 572; it was observed that, legally it is possible to pass an
expert order to anticipatory bail. But ordinarily, an order of anticipatory bail
should be passed without issuing notice to the prosecution and giving it an
opportunity to oppose the application for anticipatory bail.

(3) No 'blanket order' - if a direction is issued under section 438(1) to the

effect that the applicant shall be released on bail "whenever arrested for
whichever offence whatsoever", the order serves as a blanket to cover or
protect any and every kind of alleged unlawful activity which no concrete
information can possibly be had. Such a 'blanket order' is not contemplated
by section 438, the applicant must have reasonable grounds to believe that
he might be arrested for having committed a non-bailable offence. Moreover,
such a 'blanket order' would cause serious interference with both the right
and duty at the police in the matter of investigation. Thus, the court which
grants anticipatory bail must take care to specify the offence or offences in
respect of which alone the order will be effective; Kalyan Chandra Sarkar v.
Rajesh Ranjan @ Pappu Yadav, MANU/SC/0214/2004 : AIR 2004 SC 1866.

(4) Filing of FIR not a condition precedent - Section 438 does not require
that offence in respect of which the anticipatory bail is asked for has been
registered with the police.

(5) No anticipatory bail after arrest - Section 438 cannot be invoked after
the arrest of the accused. After arrest, the accused must seek his remedy
under section 437 or section 439 if he wants to be released on bail; Kalyan
Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, MANU/SC/0214/2004 :
AIR 2004 SC 1866.

(6) Granting of anticipatory bail only in exceptional cases - Though the

applicant in order to succeed must make out a case for the grant of
anticipatory bail under section 438, that section does not require him to
make out a "special case". The discretion in granting such bail is undoubtedly
 to be exercised with care and circumspection (as it is an extraordinary
remedy); but then it will not be correct to say that the power to grant
anticipatory bail must be exercised in exceptional cases only (However, in
Samunder Singh v. State of Rajasthan, MANU/SC/0278/1987 : (1987) 1 SCC
466; the Supreme Court criticised the liberal attitude of the High Court in
granting anticipatory bail).

It may be noted that Law Commission of India in its 48th Report expressed the view
that the power to grant anticipatory bail should record reasons for doing so. Still
further, the direction can be issued only if the court is satisfied that such a direction
is necessary in the interests of justice.

CASE LAWS

Rao Harnarain Singh Case

In Rao Harnarain Singh v. State, AIR 1958 Punj 123: 1958 Cr LJ 563; the fact of
the case was, one Kalu Ram, one of the accused, husband of the deceased, Smt.
Surti, used to live in one of the rooms in the house of the accused appellant Rao
Harnarain Singh, Smt. Surti was an attractive girl. On the evening of 18 April 1957,
when the appellant Rao Harnarain Singh was entertaining Ch. Mauji Ram, Dy. S.P.
(jail) Gurgaon on the eve of his transfer, Kalu Ram was induced after initial protests,
to provide his wife Smt. Surti, to satisfy the carnal lust of Rao Harnarain Singh and
his guests.

It was alleged that the girl vehemently protested against this outrageous demand
but under the pressure exerted by her husband she was induced to surrender his
chastity. It was alleged that the three accused - Rao Harnarian Singh, Ch. Mauji
Ram and Balbir Singh, ravished her during the night and she died almost
immediately.

Bail application was rejected by the committing Magistrate. The Additional Sessions
Judge also declined to release the accused on bail. The appellants moved High Court
under section 498 Cr PC (section 439 of the new Code) praying that the petitioner
be released on bail pending the decision of the case.

Issue before the Supreme Court

The question inter alia before their lordships was whether the accused could be
released on bail under the circumstances of the case.

Contentions

It was contended by the appellants that they deserved to be released on bail. It

was also alleged that there did not appear any reasonable ground for holding or
believing that they had been guilty of an offence punishable with death or
 imprisonment for life. There was no eye-witness to testify the murder and no proof
being available that the body of girl was cremated in the early hours shortly after
the occurrence, bore any marks of violence suggestive of the commission of offence
of which they had been accused.

Observations

There Lordships observed that the case of commission of the offence of a rape of a
young girl was a serious crime. The contention of the appellants was that the offence
of rape could not be established in that the girl was provided for the satisfaction of
the carnal lust of the accused with the consent of her husband. She was a grown
up girl of 19 years and a married woman, and that death could not have resulted
in consequence of sexual intercourse with her by three persons.

Their Lordships observed that the bad character of a man does not disentitle him
from being bailed out if the law allows and on the other hand, the social position or
status of an accused should not be taken into consideration while granting bail
merely because the accused is a respectable man and is able to produce reasonable
security. The circumstances of each particular case must be taken into consideration
by the Court while deciding the question for the grant of bail. The following
principles should guide the court in granting bail:-

(a) enormity of the charge;

(b) the nature of accusation;

(c) the severity of punishment which the conviction will entail;

(d) the nature of evidence in support of the accusation;

(e) the danger of the appellant absconding if released on bail;

(f) the danger of witnesses being tampered with;

(g) the protracted nature of the trial;

(h) opportunity of the applicant for preparation of his defence and access to
his counsel;

(i) the health, age and sex of the accused;

(j) the nature and gravity of the circumstances in which the offence is
committed;

(k) the position and status of the accused with reference to the victim and
the witnesses;

(l) the probability of accused committing the offences if released on bail, etc.
 In the light of these guiding principles, it was observed that the applicants in this
case were accused of having committed the offences of murder, rape and also for
causing the disappearance of evidence of these offences.

Section 389 of the Code confers wide discretionary powers on courts to grant or
refuse bail and imposes limitation in cases where there appears reasonable ground
for believing that the accused has been guilty of an offence punishable with death
or imprisonment for life.

The appellant in this case have been accused of having committed grave offences
punishable with long term of imprisonment and this is a consideration against their
being released on bail.

Held, that under the circumstances the application of the accused for bail cannot be
accepted. The application was, therefore, dismissed.

George Williams case

In Public Prosecutor, Madras v. George Williams @ Victor, MANU/TN/0336/1951 :

AIR 1951 Mad 1042; the fact of the case was, the appellant was released on bail
prior to this application. The bail was granted to him on 16 May, 1950. Thereafter,
the Public Prosecutor moved a petition under section 497(5) of the Code of Criminal
Procedure [section 437(5) of the New Code] for the cancellation of the bail on the
ground that he has misconducted himself liable to re-arrest and committal to
custody, by abusing his release on bail and by indulging in the same kind of offence
during the period of bail.

The respondent George Williams alias Victor had been convicted in a Session case
under section 120B of IPC read with section 420 IPC for having conspired with
twenty-three other accused to cheat members of public by promising to give them
two five-rupee notes (of course counterfeit) for one genuine five-rupee note. Of
course, the genuine currency notes were taken and the others as promised were
not given. This accused was held to be the prim over and ring leader in the huge
conspiracy and was sentenced to undergo four years rigorous imprisonment.

Observations and decision of the High Court

Their Lordship of the High Court observed that section 426(2) Cr PC (section 389
of the New Code) gives the High Court the power to grant bail in such cases. It is
clear that when the High Court is given power under section 497(5) Cr PC to cancel
bail already granted to persons undergoing trial, a similar power must be implied
regarding the grant of bail under section 426 Cr PC. It will be atrocious, if the High
Court which grants bail to an appellant pending his appeal on his application
protesting his innocence, is not empowered to cancel his bail, and re-arrest him and
commit him to custody when he is proved to have abused the process of the court
 by getting bail on false pretences and misbehaves and proves himself unworthy of
committing on bail.

It was observed that where the person on bail, during the period of bail, commits
the very same offence for which he is being tried or has been convicted, he proves
his unfitness to be on bail, as in the present case if the facts alleged by the learned
Public Prosecutor (said they are not converted by the counsel for the accused) are
(i) if he hampers the investigation as will be the case if he, when on bail, forcibly
prevents the search of place under his control for the corpus delicti or other
incriminating things; (ii) if he tampers with the evidence; as by intimidating the
PWs, interfering with the scene of offence in order to remove traces or proofs of the
crime, etc.; (iii) if he runs away to a foreign country, or goes underground out of
the control of his sureties, and (iv) if he commits acts of violence, in revenge,
against the police and the prosecution witnesses and those who have booked him
or are trying to book him.

Held, that this case falls under the first category and the bail granted to the
respondent was cancelled, and he was remained to custody.

Gurcharan Singh Case

In Gurcharan Singh v. State (Delhi Administration), MANU/SC/0420/1978 : (1978)

1 SCC 118; the appellants are the suspended senior police officials who are accused
of the offence of murdering Sunder, a notorious dacoit. The case was investigated
by the CBI, and the appellants were arrested in pursuance of the First Information
Report lodged by the Superintendent of Police CBI on 10 June, 1977.

The appellants applied for bail to the District and Session Judge, Delhi, who by his
order dated 11 August, 1977, released them on bail. On appeal by the State, the
Delhi High Court cancelled the bail granted by the Court of Session and directed
committal of the appellants to custody. Hence, this appeal by special leave, against
the order of the High Court.

Their Lordships rejected the contention of the counsel for the appellants that under
section 439(2) Cr PC of the new Code, the High Court could not entertain the
application for cancellation of bail and it was only the Court of Session that was
competent to deal with the matter. It was observed that Section 439 of the new
Code confers special powers on High Court or Court of Session regarding bail. This
was also the position under section 498 Cr PC (old). It was held that under section
439(2) of the new Code, a High Court may commit a person released on bail under
Chapter XXXIII by any court including the Court of Session to custody, if it thinks
appropriate to do so, it must, however, be made cheat that a court of Session
cannot carnal a bail which has already been granted by the High Court unless new
circumstances arise during the progress of the trial after an accused person has
been admitted to bail by the High Court.
 The overriding consideration in granting bail to which we have adverted to earlier
and which are common both in the case of section 437(1) and

section 439(1) Cr PC of the new Code are the nature and gravity of the
circumstances in which the offence is committed; the position and the status of the
accused with reference to the victim and the witnesses; the likelihood, of the
accused fleeing from justice, of repeating the offence, of jeopardizing his own life
being faced with a grim prospect of possible conviction in the case; of tampering
with the witnesses; the history of the case as well as of its investigation and other
relevant grounds which in view of so many variable factor cannot be exhaustively
set out.

Ordinarily, the High Court will not exercise its direction to interfere with and order
of bail granted by the Session Judge in favour of the accused.

Their Lordship examined the entire material relating to the preliminary inquiry and
the conduct of the appellants after the grant of bail, and the allegations that
pressure was being exerted on some eye witnesses to support the case of the
defence, and observed:

"In considering the question of bail of an accused in a non-bailable offence

punishable with death or imprisonment for life, it is necessary for the court
to consider whether the evidence discloses a prima facie case to warrant his
detention in jail besides the other relevant factors. As a link in the chain of
criminal conspiracy, the prosecution is also relying on the conduct of some
of the appellant in taking Sunder out of police lock-up for making what is
called a false discovery and it is but fair that the Panch witnesses in that
behalf be not allowed to be got at.

It was further observed that,

"the two paramount considerations viz. likelihood of the accused fleeing from
justice and his tampering with prosecution evidence relate to ensuring a fair
trial of the case in a court of justice. It is essential that due and proper
weight should be bestowed on these two factors apart from others. There
cannot be an inexorable formula in the matter of granting bail. The facts and
circumstances of each case will govern the exercise of judicial discretion in
granting or cancelling bail".

Their Lordships cited the decision in Captain Jagjit Singh's case, and held that the
High Court was correct in appreciating the entire position. With these observations,
their Lordships refused to interfere with the discretion exercised by the High Court
in cancelling the bail of the appellants.

Balachand Case
 In State of Rajasthan v. Balachand @ Bally, (1977) SC (Cri) 594; the respondent
was acquitted by the High Court in a criminal case. The State was, however, granted
special leave to appeal to the Supreme Court. After having surrendered himself
after leave was granted to the State to file an appeal against acquittal by the High
Court, the petitioners moved the Supreme Court for bail.

Decision by the Supreme Court

Mr. Justice Krishna Iyer delivering the judgment of the Supreme court observed:
"the basic rule may perhaps be tersely put at "bail, not jail", except where there
are circumstances suggestive of fleeing from justice on thwarting the course of
justice or creating other troubles in the shape of repeating offences or intimidating
witnesses and the like, by the petitioner who seeks enlargement on bail from the
Court."

It was further observed that:

"It is true that the gravity of the offence involved is likely to induce the
petitioner to avoid the course of justice and must weigh with the Court when
considering the question of bail. So also the hideousness of the crime. Even
so, the record of the petitioner in this case is that , while he has been on bail
throughout during the trial of the case and he was released after the
judgment of the High Court, there is nothing to suggest that he has abused
the trust placed in him by the Court: his social circumstances also are not
so unfavourable in the sense of his being a desperate character or unsocial
element who is likely to betray the confidence that the Court may place in
him to turn upto take justice at the hands of the Court. He is stated to be a
young man of 27 years with a family to maintain. The circumstances and the
social milieu do not militate against the petitioner being granted bail at this
stage. At the same time, any possibility of the absconsion or other abuse
can be taken care of by a direction that the petitioner will report himself
before the police station, Baren, once very fortnight."

The petitioner will be released on bail on his entering into a bond of his own and
one surety for Rs. 5000 to the satisfaction of the Additional District and Session
Judge, Baren. While the system of pecuniary bail has a tradition behind it, the time
has come for re-thinking on the subject. It may well be that in most cases no
monetary suretyship but undertaking by relation of the petitioner or organization to
which he belongs may be better and more socially relevant. Even so, in the case,
we stick to the practice and direct the furnishing of one surety for Rs. 5000.

Prahlad Singh Case

In Prahlad Singh Bhati v. N.C.T. of Delhi, MANU/SC/0193/2001 : (2001) 4 SCC 280;

the respondent 2, who is alleged to have murdered his wife and against whom FIR
 was registered in police station Lajpat Nagar under section 302 of the Indian Penal
Code, was released on bail by the Metropolitan Magistrate, New Delhi. The revision
filed against the aforesaid order has been dismissed by a learned single judge of
the High Court by passing a telegraphic order to the effect "having considered the
case before me, I am of the opinion no ground has been made for cancellation of
bail". Not satisfied with the order of the Magistrate and that of the High Court, the
father of the deceased has approached the Supreme Court in this appeal by special
leave.

The Supreme Court observed that:

"Powers of the Magistrate, while dealing with the applications for grant of
bail, are regulated by the punishment for the offence in which the bail is
sought. Generally speaking, if punishment prescribed is for imprisonment
for life and death penalty and the offence is exclusively triable by the court
of Session, the Magistrate has no jurisdiction to grant bail unless the matter
is covered by the provisos attached to section 437 of the Code. The
limitations circumscribing the jurisdiction of the Magistrate are evident and
apparent. Assumption of jurisdiction to entertain the application is
distinguishable from the exercise of the jurisdiction."

The court further observed that:

"The jurisdiction to grant bail has to be exercised on the basis of well-settled

principles having regard to the circumstances of each case and not in an
arbitrary manner. While granting the bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support thereof, the severity
of punishment which conviction will entail, the character, behaviour, means
and standing of the accused, circumstances which the presence of the
accused at the trial, reasonable possibility of securing the presence of the
accused at the trial, reasonable apprehension of the witnesses being
tampered with, the larger interest of the public or state and similar other
considerations. It has also to be kept in mind that for the purposes of
granting the bail, the legislature has used the words "reasonable grounds
for believing" instead of "the evidence" which means that the court dealing
with the grant of bail can only satisfy it as to whether there is a genuine case
against the accused and that the prosecution will be able to provide prima
facie evidence in support of the charge. It is not expected, at this stage, to
have the evidence establishing the guilt of the accused beyond reasonable
doubt."

Held that the High Court failed in its obligation to adjudicate the leas of law raised
before it and accordingly set aside the order of the High Court and court below.

Sanjay Gandhi Case

 In State (Delhi Administration) v. Sanjay Gandhi, MANU/SC/0171/1978 : (1978) 2
SCC 411; one Shri Amrit Nahata produced a film called 'Kissa Kursi Ka' which
portrayed the story of the political doings of the respondent and his mother, Smt.
Indira Gandhi, the former Prime Minister of India, the Board of Censors declined to
grant a certificate for exhibition of the film whereupon Shri Nahata filed a writ
petition in the Supreme Court for a writ of mandamus. The Supreme Court was
informed that it was not possible to screen the film for evaluation by the Judges.

After the emergency was lifted, a raid was effected on the Gurgaon premises of the
Maruti Limited which yielded incriminating material about 13 boxes which contained
the spouls of the film 'Kissa Kursi Ka' were burnt and destroyed in the factory
premises.

An application was filed by the Delhi Administration, in the High Court of Delhi for
cancellation of the respondent's bail. The application having been dismissed by a
single judge, the Delhi Administration filed this appeal by special leave.

Observation of the Supreme Court

It was observed that: "Rejection of bail when bail is applied for is one thing;
cancellation of bail already granted is quite another. It is easier to reject a bail
application in a non-bailable case then to cancel a bail granted in such a case.
Cancellation of bail necessarily involves the review of a decision already made and
can by and large be permitted only if, by reason of supervening circumstances, it
would be no longer conclusive to a fair trial to allow the accused to retain his
freedom during the trial. The fact that prosecution witnesses have turned hostile
cannot by itself justify the inference that the accused has won them over. In other
words, the objective fact that the witness have turned hostile must be shown to
bear a casual connection with the subjective involvement therein of the respondent.
Without such proof, a bail once granted cannot be cancelled on the choice or on the
supposition that witnesses have won over by the accused. Inconsistent testimony
can no more be ascribed by itself to the influence of the accused then consistent
testimony, by itself, can be ascribed to the pressure of the prosecution."

The Court held that:

"The prosecution, therefore, can establish its case in an application for

cancellation of bail by showing on a preponderance of probabilities that the
accused has attempted to temper or has tampered with its witnesses.
Proving by the test of balance of probabilities that the accused has abused
his liberty or that there is a reasonable apprehension that he will interfere
with the course of justice is all that is necessary for the prosecution to do in
order to succeed in an application for cancellation of bail.
 Thus, the Supreme Court allowed the appeal partly, setting aside the judgment of
the High Court.

Moti Ram case

In Moti Ram v. State of Madhya Pradesh, MANU/SC/0132/1978 : (1978) 4 SCC 47;

the appellant's Criminal Appeal having been admitted by the Supreme Court, he
was also ordered to be released on bail subject "to the satisfaction of the Chief
Judicial Magistrate". Consequently, the Magistrate ordered that a surely in a sum of
Rs. 10,000 be produced; although the Supreme Court had not spelt out any details
of such sort.

The petitioner could not procure that huge sum or manage a surety of sufficient
prosperity. The Magistrate made an odd order refusing to accept the suretyship of
the petitioner's brother because he and his assets were in another district.

Against this order, the petitioner moved the Supreme Court again to modify the
original order "to the extent that petitioner be released on furnishing surety to the
tune of Rs. 2000 or on executing a personal bond or pass any other order or
direction".

Observations

His Lordships observed that, the grant of bail can be studied or made impossible,
inconvenient and expensive if the court is powerless to dispense with surety or to
receive an Indian bailor across the district borders as good or if the sum is so
excessive that to procure a wealthy surety may be both exasperating and
expensive.

"It shocks one's conscience to ask a mason like the petitioner to furnish sureties for
Rs. 10,000. The Magistrate must be given the benefit of doubt for not fully
appreciating that our Constitution enacted "We, the people of India" is meant for
the butcher, the baker and the candle-stick maker-shall we add, the bonded labour
and pavement-dweller" his Lordship observed.

To add insult to injury, the Magistrate then demanded sureties from his own district.
What is Malayalee Kannadiya, Tamil or Telugu to do if arrested for alleged
misappropriation or theft or criminal trespass in Bastar, Port Blair, Pahalgam or
Chandni Chowk? He cannot have sureties owning properties in these distant places.
He may not know any one there and might have come in a batch or to seek a job
or in a morcha. Judicial disruption of Indian unity is surest achieved by such
provincial allergies.

With these observations, it was ordered by his Lordships to the Magistrate to release
the petitioner on his own bond in a sum of Rs. 1000.
PAROLE

Discuss briefly the concept of `Parole' with the help of case law

Words bail, parole and furlough are used in different States to denote grant of leave
or emergency release to a prisoner from prison. The word and meaning is not
uniform and is thus, confusing. The word 'Bail' is confused with the word 'Parole'.
Actually, these two words are entirely different.

In S. Sant Singh v. Secretary, Home Department of Maharashtra, II (2006) CCR

241 (FB); the Bombay High Court with the following observations regarding parole:

(i) 'Parole' is defined in Black's Law Dictionary as "a conditional release of a

prisoner, generally under supervision of a parole officer, who has served part
of the term for which he was sentenced to prison". Parole relates to
executive action. Historically, 'parole' is a concept known to military law and
denotes release of a prisoner of war on promise to return. Parole has become
an integral part of the English and American system of criminal justice
intertwined with the evolution of changing attitudes of the society towards
crime and criminals. As a consequence of the introduction of parole into their
penal system, all fixed-term sentence of imprisonment of above 18 months
are subject to release on licence, that is, parole is granted after a third of
the period of sentence has been served. In those countries, parole is taken
as an act of grace and not as a matter of right and the convict prisoner may
be released on condition that he abides by the promise. It is a provisional
release from confinement but is deemed to be a part of the imprisonment.
Release on parole is a wing of the reformative process and is expected to
provide opportunity to the prisoner to transform himself into a useful citizen.
Parole is thus a grant of partial liberty or lessening of restriction on a convict
prisoner, but release on parole does not change the status of the prisoner.

(ii) However, the concept of parole under the English law, the American law
and the Indian law is quite different. Under the English Law, parole is granted
to a convict who has undergone major part of his sentence. It is a undergone
major part of his sentence. It is a reformative process on account of the
changing attitude towards crime and criminals. Parole under those systems
is a provisional release from jail but it is deemed to be part of the
imprisonment. A convict is supposed to maintain good behaviour during this
period and not abuse the liberty granted to him in any manner, otherwise
he would be called back to serve out the remaining part of his imprisonment.
However, under the Indian system a convict can be released on parole only
in case of the contingencies mentioned in Rule 19. It is a temporary release
granted on account of contingency and after the period of parole is over the
convict has to report back to prison to undergo the remaining part of his
sentence. Thus, though the concept of parole differs under the Indian system
and other systems, one similarity is that parole does not amount to
suspension of sentence and the person is deemed to be undergoing
imprisonment during the period that he is on parole.

(iii) Bail and parole have different connotation in law. Bail is well understood
in Criminal Jurisprudence and Chapter XXXIII of Cr PC contains elaborate
provisions relating to grant of bail. Bail is granted to a person who has been
arrested in a non-bailable offence or has been convicted of an offence after
the trial. Bail is granted by the officer-in-charge of a police station or by the
Court when a person is arrested. The Court grants bail when a person
apprehends arrest in a case of a non-bailable offence. When a person is
convicted of an offence, he can be released on bail by the Appellate Court
till his appeal is decided. If he is acquitted, his bail bonds are discharged and
if his appeal is dismissed he is taken into custody. Bail can be granted subject
to conditions. After granting of bail, if the accused is released from custody,
still the Court would retain constructive control over him through the
sureties. In case, the accused is released on his own bond, such constructive
control would still be exercised through the conditions of the bond secured
from him. Parole, however, has a different connotation from bail even
though the substantial legal effect of both bail and parole may be the release
of a person from detention or custody. 'Parole' is a form of 'temporary
release' of a convict from custody and changes the mode of undergoing
sentence.

(iv) It is seen that 'bail' and 'parole' operate in distinct fields although, the
ultimate end is the release of the prisoners on certain terms and conditions.
There is clear distinction between 'parole' and 'bail'. 'Parole' has nothing to
do with the actual merits of the matter i.e. the evidence which has been led
against the convicted prisoner but 'parole' is granted in cases of emergency
like death, illness of near relative or in cases of natural calamity such as
house collapse, fire or flood. It is pertinent to note that in case of death of
near relative, the Superintendent of Prison shall also be competent to release
the convict on parole for a period not exceeding 15 days. Parole is resorted
to in cases of contingency. Looking to this fact, it would not be expedient for
the convict to approach the Courts and pray for temporary release especially
in cases of death. The Prison Rules take care of such emergencies.

(v) Thus, bail and parole operate in different spheres and in different
situations. In India, there are no statutory provisions dealing with the
question of grant of parole. The Code of Criminal Procedure does not contain
any provision for grant of parole. By an administrative instruction, however,
rules have been framed in various States regulating the grant of parole.
 Thus, the action of grant of parole is, generally speaking, an administrative
action.

(vi) Undoubtedly, Section 389 empowers the Court to suspend the sentence
and even the conviction but if there is no such suspension, the competent
authority or the Government's powers under section 432 Cr PC are not
curtailed in any manner nor there is an embargo on its powers merely
because the appeal against the conviction is pending. It is another story
when the sentence is suspended and the convict is ordered to be released
on bail. Certainly such an order could prevail over the powers of the
Government but in the absence of such an order, the Government's powers
under section 432 of Cr PC are not curtailed.

From this, it is clear that the powers of the State to grant parole are not fettered
even if the appeal of the convict is pending before the Court. Thus, the competent
authority or the Government would have the legal competence to entertain an
application for parole by following the procedure set out under the Prison Rules to
meet the contingencies stated therein. The exercise of such power would not be in
any way be in conflict with the powers exercised under section 389 or section 432
Cr PC.

FURLOUGH

Explain the term `furlough'.

Though Bail, Parole and Furlough are interlinked with each other, yet they have
different meanings in the eyes of law. In this Chapter, we have already discussed
'Bail' and "Parole'. Now we should discuss 'furlough'. One thing that always should
be kept in mind that, 'Bail' is generally granted by the Court whereas 'Parole' and
'Furlough' are granted by the State as per rules and regulations or the guidelines
laid down by the 'Competent Authority' from time to time.

In Concise Oxford Dictionary, 'Furlough' means "a leave of absence especially

granted to a member of the services or to a missionary." Therefore, this dictionary
meaning of this word is not quite helpful.

In S. Sant Singh v. Secretary, Home Department, Government of Maharashtra, II

(2006) CCR 241 (FB); Similar observation was made by the Apex Court in State of
Haryana v. Mahinder Singh, (2003) 3 SCC 394; it was observed by their Lordships
of High Court that, 'Furlough' and 'Parole' are two distinct terms now being used in
the jail manuals or laws relating to temporary release of prisoner. These two terms
have acquired different meaning in the statute with varied results. Dictionary
meanings, therefore, are not quite helpful.
In State of Haryana v. Naurattan Singh, MANU/SC/0176/2000 : (2000) 3 SCC 514;
the Supreme Court observed that, 'furlough' is only a leave of absence allowed to
a prisoner or accused.

Generally speaking, the main difference between 'parole' and 'furlough' is that, the
parole is allowed to a very long-term prison, whereas furlough is allowed to a
prisoner who is sentenced for 5 years or more rigorous imprisonment and who has
actually undergone three years imprisonment excluding remission may be released
on furlough.

© Universal law Publishing Co.

 CHAPTER 9

COMPOUNDING OF OFFENCES

What do you mean by expression `compounding of offences'?

The compounding of offences is a progressive piece of legislation as it give an

opportunity to the complainant and the accused to settle their dispute amicably in
order to maintain harmonious relations in between them in future.

The victim or affected person who is complainant gets an opportunity on the

commencement of trial to compound the offence with the accused who may reform
his behaviour in future.

The offences punishable under the sections of Indian Penal Code (45 of 1860) are
specified in the first two columns of the Table next following may be compounded
by the persons mentioned in the third column of the table.

320. Compounding of offences

(1) The offences punishable under the sections of the Indian Penal Code (45 of
1860) specified in the first two columns of the Table next following may be
compounded by the persons mentioned in the third column of that Table:-

TABLE

Offence Section of the Person by whom offence may be

Indian Penal compounded
Code
applicable

1 2 3

Uttering words, 298 The person whose religious

etc., with feelings are intended to be
deliberate intent wounded.
to wound the
religious feelings
of any person.

Voluntarily 323 The person to whom the hurt is

causing hurt. caused.

Voluntarily 334 The person to whom the hurt is

causing hurt on caused.
provocation.
Voluntarily 335 The person to whom the hurt is
causing grievous caused.
hurt on grave
and sudden
provocation.

Wrongfully 341, 342 The person restrained or

restraining or confined.
confining any
person.

Wrongfully 343 The person confined.

confining a
person for three
days or more

Wrongfully 344 The person confined.

confining, a
person for ten
days or more.

Wrongfully 346 The person confined.

confining a
person in secret.

Assault or use of 352, 355, 358 The person assaulted or to whom

criminal force. criminal force is used.

Theft. 379 The owner of the property stolen.

Dishonest 403 The owner of the property

misappropriation misappropriated.
of property.

Criminal breach 407 The owner of the property

of trust by a misappropriated
carrier,
wharfinger, etc.

Dishonestly 411 The owner of the property stolen.

receiving stolen
property
knowing it to be
stolen.

Assisting in the 414 The owner of the property stolen.

concealment or
disposal of stolen
property,
knowing it to be
stolen.

Cheating. 417 The person cheated.

Cheating by 419 The person cheated.

personation.

Fraudulent 421 The creditors who are affected

removal or thereby.
concealment of
property, etc., to
prevent
distribution
among creditors.

Fraudulently 422 The creditors who are affected

preventing from thereby.
being made
available for his
creditors a debt
or demand due
to the offender.

Fraudulent 423 The person affected thereby.

execution of
deed of transfer
containing false
statement of
consideration.

Fraudulent 424 The person affected thereby.

removal or
concealment of
properly.

Mischief, when 426, 427 The person to whom the loss or

the only loss or damage is caused.
damage caused
is loss or damage
to a private
person.
Mischief by 428 The owner of the animal.
killing or
maiming animal.

Mischief by 429 The owner of the cattle or

killing or animal.
maiming cattle,
etc.

Mischief by 430 The person to whom the loss or

injury to works damage is caused.
of irrigation by
wrongfully
diverting water
when the
only loss or
damage caused
is loss or damage
to private
person.

Criminal 447 The person in possession of the

trespass. property trespassed upon.

House-trespass. 448 The person in possession of the

property trespassed upon.

House-trespass 451 The person in possession of the

to commit an house trespassed upon.
offence (other
than theft)
punishable with
imprisonment.

Using a false 482 The person to whom loss or

trade or property injury is caused by such use.
mark.

Counterfeiting a 483 The person to whom loss or

trade or property injury is caused by such use.
mark used by
another.

Knowingly 486 The person to whom loss or

selling, or injury is caused by such use.
exposing or
possessing for
sale or for
manufacturing
purpose, goods
marked with a
counterfeit
property mark.

Criminal breach 491 The person with whom the

of contract of offender has contracted.
service.

Adultery. 497 The husband of the woman.

Enticing or 498 The husband of the woman and

taking away or the woman.
detaining with
criminal intent a
married woman.

Defamation, 500 The person defamed.

except such
cases as are
specified against
section 500 of
the Indian Penal
Code (45 of
1860) in column
1 of the Table
under sub-
section (2).

Printing or 501 The person defamed.

engraving
matter, knowing
it to be
defamatory.

Sale of printed or 502 The person defamed.

engraved
substance
containing
defamatory
matter, knowing
 it to contain such
matter.

Insult intended 504 The person insulted.

to provoke a
breach of the
peace.

Criminal 506 The person intimidated.

intimidation.

Inducing person 508 The person induced.

to believe
himself an object
of divine
displeasure.

(2) The offences punishable under the sections of the Indian Penal Code (45 of
1860) specified in the first two columns of the table next following may, with the
permission of the Court before which any prosecution for such offence is pending,
be compounded by the persons mentioned in the third column of that table:-

TABLE

Offence Section of Person by whom offence may be

the compounded
Indian
Penal
Code
applicable

1 2 3

Causing 312 The woman to whom miscarriage

miscarriage. is caused.

Voluntarily causing 325 The person to whom hurt is

grievous hurt. caused.

Causing hurt by 337 The person to whom hurt is

doing an act so caused.
rashly and
negligently as to
endanger human life
or the personal
safety of others.
Causing grievous 338 The person to whom hurt is
hurt by doing an act caused
so rashly, and
negligently as to
endanger human life
or the personal
safety of others.

Assault or criminal 357 The person assaulted or to whom

force in attempting the force was used.
wrongfully to
confine a person.

Theft by clerk or 381 The owner of the property stolen.

servant of property
in possession of
master.

Criminal breach of 406 The owner of property in respect

trust of which
breach of trust has
been committed.

Criminal breach of 408 The owner of the property in

trust by a clerk or respect of which the breach of
servant. trust has been committed.

Cheating a person 418 The person cheated.

whose interest the
offender was bound,
either by law or by
legal contract, to
protect.

Cheating and 420 The person cheated.

dishonestly inducing
delivery of property
or the making,
alteration or
destruction of a
valuable security.

Marrying again 494 The husband or wife of so

during the life- the marrying.
person time of a
husband or wife.
Defamation against 500 The person defamed.
the President or the
Vice-President or
the Governor of a
State or the
Administrator of a
Union territory or a
Minister in respect of
his public functions
when instituted
upon a complaint
made by the Public
Prosecutor.

Uttering words or 509 The woman whom it was intended

sounds or making to insult or whose privacy was
gestures or intruded upon.
exhibiting any object
intending to insult
the modesty of a
woman or intruding
upon the privacy of a
woman.

(3) When an offence is compoundable under this section, the abetment of such
offence or an attempt to commit such offence (when such attempt is itself an
offence) or where the accused is liable under section 34 or 149 of the Indian Penal
Code (45 of 1860) may be compounded in like manner.

(4) (a) When the person who would otherwise be competent to compound an
offence under this section is under the age of eighteen years or is an idiot or a
lunatic, any person competent to contract on his behalf, may, with the permission
of the Court compound such offence.

(b) When the person who would otherwise be competent to compound an

offence under this section is dead, the legal representative, as defined in the
Code of Civil Procedure, 1908 (5 of 1908) of such person may, with the
consent of the Court compound such offence.

(5) When the accused has been committed for trial or when he has been convicted
and an appeal is pending no composition for the offence shall be allowed without
the leave of the Court to which he is committed, or, as the case may be, before
which the appeal is to be heard.
(6) A High Court or Court of Session acting in the exercise of its powers of revision
under section 401 may allow any person to compound any offence which such
person is competent to compound under this section.

(7) No offence shall be compounded if the accused is, by reason of a previous

conviction, liable either to enhanced punishment or to a punishment of a different
kind for such offence.

(8) The composition of an offence under this section shall have the effect of an
acquittal of the accused with whom the offence has been compounded.

(9) No offence shall be compounded except as provided by this section.

Section 320(2) gives power to the Magistrate to grant permission for compounding
of the offences to the complainant as mentioned in the above table. The Magistrate
may satisfy himself that the complainant voluntarily wants to compound the offence
with the accused without any threat, pressure or coercion, and then he gives
permission to the complainant to compound the offence with the accused.

Section 320(3) provides that the complainant may compound the abetment of
compoundable offences or an attempt to commit compoundable offence or for
liability under section 34 or 149 of IPC in the like manner.

Offences that may lawfully be compounded are those that are mentioned in this
section. Offences other than those mentioned cannot be compounded. Offences
punishable under laws other than Indian Penal Code are not compoundable;
Sholapur Mun. Corpn. v. Ram Krishna, (1968) 71 Bom LR 481: 1970 Cr LJ 1330.

Section 320(8) provides that composition of an offence under section 300 shall have
the effect of an acquittal of the accused.

Section 320(4)(a) if a person who is to compound the offence with the accused is
under the age of eighteen years or is an idiot or a lunatic, then any person
competent to contract on his behalf may, with the permission of the court,
compound such offence.

Section 320(4)(b) provides that if a person is dead who was otherwise competent
to compound under this section, his legal representative, as defined in Civil
Procedure Code, 1908, with the consent of the Court, may compound such offence.

Even the appellate courts, where after conviction an appeal is pending, may grant
permission to compound the offence with the accused.

The High Court or Court of Sessions under its revisional jurisdiction may allow any
person to compound any offence which such person is competent to compound
under this section, whose description is made in column (3) of the table.
A case may be compounded at any time before the sentence is pronounced even
whilst the Magistrate is writing the judgment; Aslam Meah, (1917) 45 Cal 816.

A compromise of a compoundable case deprives the Magistrate of his jurisdiction to

try it. The compromise is complete as soon as it is made and has the effect of an
acquittal even if one of the parties subsequently resiles from it. If it is proved that
the parties signed the document of compromise and understood its contents, it is
incompetent for either to withdraw from it; Father Godfrey Meeus v. Simon Dulac,
AIR 1950 (Nag) 454.

© Universal law Publishing Co.

 CHAPTER 9

QUASHING OF FIR AND PROCEEDINGS

No legislative enactment dealing with procedure can provide for all the cases and
contingencies that may possibly arise, and it is an established principle that courts
must possess inherent powers from the express provisions of law, which are
necessary to their existence and the proper discharge of duties imposed upon them
by law. Section 482 of the Code confers no increased power on the High Court which
it did not possess before. It merely safeguards all existing inherent powers
possessed by a High Court, necessary, among other purposes, to secure the ends
of justice. The inherent powers of the High Court, preserved by section 482 Cr PC
are to be exercised in making orders as may be necessary to give effect to any
order under the Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice. Section 482 reads:

482. Saving of inherent power of High Court

"Inherent jurisdiction of the High Court under section 482 Cr PC has to be

exercised sparingly, carefully and with caution". Comment.

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.

In Didigam Bikshapathi v. State of Andhra Pradesh, MANU/SC/8149/2007 : AIR

2008 SC 527, the Supreme Court held that section 482 of Cr PC does not confer
any new power on the High Court. It only saves the inherent power which the Court
possessed before the enactment of the Code. It envisages three circumstances
under which the inherent jurisdiction may be exercised, namely, (i) to give effect
to an order under the Code; (ii) to prevent abuse of the process of Court; (iii) to
otherwise secure the ends of justice. It is neither possible nor desirable to lay down
any inflexible rule which would govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can provide for all cases that may
possibly arise. Courts, therefore, have inherent powers apart from express
provisions of law which are necessary for proper discharge of functions and duties
imposed upon them by law. That is the doctrine which finds expression in the section
which merely recognizes and preserves inherent powers of the High Courts. All
Courts, whether civil or criminal possess, in the absence of any express provision,
as inherent in their constitution, all such powers as are necessary to do the right
and to undo a wrong in course of administration of justice on the principle "quando
lex aliquid alicui concedit, concedere videtur et id sine quo res itsae esse non potest"
(when the law gives a person anything it gives him that without which it cannot
exist). While exercising powers under the section, the Court does not function as a
Court of Appeal or Revision. Inherent jurisdiction under the section though wide has
to be exercised sparingly. Inherent jurisdiction under the section though wide has
to be exercised sparingly, carefully and with caution and only when such exercise
is justified by the tests specifically laid down in the section itself. It is to be exercised
ex debito justitiae to do real and substantial justice for the administration of which
alone Courts exist. Authority of the Court exists for advancement of justice and if
any attempt is made to abuse that authority so as to produce injustice, the Court
has power to prevent abuse. It would be an abuse of process of the Court to allow
any action which would result in injustice and prevent promotion of justice. In
exercise of the power, Court would be justified to quash any proceeding if it finds
that initiation/continuance of it amounts to abuse of the process of Court or
quashing of these proceedings would otherwise serve the ends of justice.

As noted above, the powers possessed by the High Court under section 482 of the
Code are very wide and the very plenitude of the power requires great caution in
its exercise. Court must be careful to see that its decision in exercise of this power
is based on sound principles. The inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the highest Court of a State should
normally refrain from giving a prima facie decision in a case where the entire facts
are incomplete and hazy, more so when the evidence has not been collected and
produced before the Court and the issues involved, whether factual or legal, are of
magnitude and cannot be seen in their true perspective without sufficient material.
Of course, no hard-and-fast rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction of quashing the proceedings
at any stage; Minu Kumari v. State of Bihar, II (2006) CCR 137 (SC); Janata Dal v.
H.S. Chowdhary, III (1992) CCR 326 (SC): MANU/SC/0532/1992 : 1992 (4) SCC
305, and Raghubir Saran (Dr.) v. State of Bihar, MANU/SC/0061/1963 : AIR 1964
SC 1.

Exercise of power under section 482 of the Cr PC in a case of this nature is the
exception and not the rule. The section does not confer any new powers on the High
Court. It only saves the inherent power which the Court possessed before the
enactment of the Cr PC. It is neither possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent jurisdiction. No legislative
enactment dealing with procedure can provide for all cases that may possibly arise.
Courts, therefore, have inherent powers apart from express provisions of law which
are necessary for proper discharge of functions and duties imposed upon them by
law. That is the doctrine which finds expression in the section which merely
recognizes and preserves inherent powers of the High Court. All Courts, whether
civil or criminal possess, in the absence of any express provision, as inherent in
their constitution, all such powers as are necessary to do the right and to undo a
wrong in course of administration of justice on the principle "quando lex aliquid
alicui concedit, contcedere videtur et id sine qua res ipsae esse non potest" (when
 the law gives a person anything it gives him that without which it cannot exist).
While exercising powers under the section the Court does not function as a Court
of appeal or revision. Inherent jurisdiction under the section though wide has to be
exercised sparingly, carefully and with caution and only when such exercise is
justified by the tests specifically laid down in the section itself. It is to be exercised
ex debito justitiae to do real substantial justice for the administration of which alone
Courts exists. Authority of the Court exists for advancement of justice and if any
attempt is made to abuse that authority so as to produce injustice, the Court has
power to prevent abuse. It would be an abuse of process of the Court to allow any
action which would result in injustice and prevent promotion of justice. In exercise
of the powers Court would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of Court or quashing of
these proceedings would otherwise serve the ends of justice. When no offence is
disclosed by the report, the Court may examine the question of fact. When a report
is sought to be quashed, it is permissible to look into the materials to assess what
the report has alleged and whether any offence is made out even if the allegations
are accepted in toto; State of Orissa v. Saroj Kr. Sahoo, IV (2005) CCR 299 (SC).

When inherent power can be exercised?

When inherent power can be exercised by the High Court under section 482, Cr
PC?

In R.P. Kapur v. State of Punjab, MANU/SC/0086/1960 : AIR 1960 SC 866, the

Apex Court summarized some categories of cases where inherent power can and
should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the institution
or continuance e.g. want of sanction;

(ii) where the allegations in the First Information Report or complaint taken
at its face value and accepted in their entirely do not constitute the offence
alleged;

(iii) where the allegations constitute an offence, but there is no legal

evidence adduced or the evidence adduced clearly or manifestly fails to
prove the charge.

In dealing with the last category, it is important to bear in mind the distinction
between a case where there is no legal evidence or where there is evidence which
is clearly inconsistent with the accusations made, and a case where there is legal
evidence which, on appreciation, may or may not support the accusations. When
exercising jurisdiction under section 482 of the Cr PC, the High Court would not
ordinarily embark upon an inquiry whether the evidence in question is reliable or
not or whether on a reasonable appreciation of it, accusation would not be
sustained. That is the function of the trial Judge Judicial process should not be an
instrument of oppression, or, needless harassment, Court should be circumspect
and judicious in exercising discretion and should take all relevant facts and
circumstances into consideration before issuing process, lest it would be an
instrument in the hands of a private complainant to unleash vendetta to harass any
person needlessly. At the same time, the section is not an instrument handed over
to an accused to short-circuit a prosecution and bring about its sudden death. The
scope of exercise of power under section 482 of the Cr PC and the categories of
cases where the High Court may exercise its power under it relating to cognizable
offences to prevent abuse of process of any Court or otherwise to secure the ends
of justice were set out in some detail by this Court in State of Haryana v. Bhanan
Lal, (1992) Supp (1) SCC 335; the observations of the case have been reiterated
by the Hon'ble Supreme Court in State of Orissa v. Saroj Kr. Sahoo, IV (2005) CCR
299 (SC). A note of caution was, however, added that the power should be exercised
sparingly and that too in rarest of rare cases. The illustrative categories indicated
by this Court are as follows:

"(1) Where the allegations made in the First Information Report or the
complaint, even if they are taken at their face value and accepted in their
entirity do not prima facie constitute any offence or make out a case against
the accused.

(2) Where the allegations in the First Information Report and other
materials, if any, accompanying the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under section 156(1) of the Cr
PC except under an order of a Magistrate within the purview of section
155(2) of the Cr PC.

(3) Where the uncontroverted allegations made in the FIR or complaint and
the evidence collected in support of the same do not disclose the commission
of any offence and make out a case against the accused.

(4) Where the allegations in the FIR do not constitute a cognizable offence
but constitute only a non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as contemplated under
section 155(2) of the Cr PC.

(5) Where the allegations made in the FIR or complaint are so-absurd and
inherently improbable on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground for proceedings against
the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of
the Cr PC or the Act concerned (under which a criminal proceeding is
instituted) to the institution and continuance of the proceedings or where
 there is a specific provision in the Cr PC or Act concerned, providing
efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or
where the proceeding is maliciously instituted with an ulterior motive for
weaking vengeance on the accused and with a view to spite him due to
private and personal grudge.

Legal position of the High Court under section 482, Cr PC

When powers under section 482 Cr PC can be invoked?

The power under section 482, Cr PC cannot be invoked to prevent the trial of the
petitioners/accused solely by referring to the overt act played by the accused as
spoken to by the witnesses in the case of the co-accused and his Court cannot in
exercise of its jurisdiction under section 482, Cr PC quash the proceedings and
prevent the trial.

In Moosa v. Sub-Inspector of Police, II (2006) CCR 445 (FB); their Lordships of the
Hon'ble High Court with reference to the observation of the Supreme Court in State
of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335; State of West Bengal v. S.K.
Guha, MANU/SC/0120/1982 : 1982 (1) SCC 561; T.T. Antony v. State of Kerala,
AIR 2001 SC 2637 summarized the legal position as follows:

(i) The inherent powers of the High Court reserved and recognized under
section 482 of the Code of Criminal Procedure are sweeping and awesome;
but such powers can be invoked only-

(a) to give effect to any order passed under the Code of Criminal
Procedure; or

(b) to prevent abuse of process of any Court; or

(c) otherwise to secure the ends of justice,

Such powers may have to be exercised in an appropriate case to

render justice even beyond the law;

(ii) Considering the nature, width and amplitude of the powers, it would be
unnecessary, inexpedient and imprudent to prescribe or stipulate any strait-
jacket formula to identify cases where such powers can or need not be
invoked.

(iii) But such powers can be invoked only in exceptional and rare cases and
cannot be invoked as a matter of course. Where the Code provides methods
and procedures to deal with the given situation, in the absence of exceptional
and compelling reasons, invocation of the powers under section 482 of the
Code of Criminal Procedure is not necessary or permissible.

(iv) The fact that an accused can seek discharge/dropping of

proceedings/acquittal under the relevant provisions of the Code in the
normal course would certainly be a justifiable reason, in the absence of
exceptional and compelling reasons, for the High Court not invoking its
extraordinary powers under section 482, Cr PC.

(v) In a trial against the co-accused the prosecution is not called upon, nor
is it expected to adduce evidence against the absconding co-accused. In
such trial the prosecution cannot be held to have the opportunity or
obligation to adduce all evidence against the absconding co-accused. The
fact that the testimony of a witness was not accepted or acted upon in the
trial against the co-accused is no reason to assume that he shall not tender
incriminating evidence or that his evidence will not be accepted in such later
trial.

(vi) On the basis of materials placed before the High Court in proceedings
under section 482 of the Code of Criminal Procedure (which materials can
be placed before the Court in appropriate proceedings before the
subordinate Courts) such extraordinary inherent powers under section 482
of the Code of Criminal Procedure cannot normally be invoked, unless such
materials are of an unimpeachable nature which can be translated into legal
evidence in the course of trial.

(vii) The judgment of acquittal of a co-accused in a criminal trial is not

admissible under sections 40 to 43 of the Evidence Act to bar the subsequent
trial of the absconding co-accused and cannot hence be reckoned as a
relevant document while considering the prayer to quash the proceedings
under section 482 Cr PC. Such judgments will be admissible only to show as
to who were the parties in the earlier proceedings or the factum of acquittal.

(viii) While considering the prayer for invocation of the extraordinary

inherent jurisdiction to serve the ends of justice, it is perfectly permissible
for the Court to consider the bona fides - the cleanliness of the hands of the
seeker. If he is a fugitive from justice having absconded or jumped bail
without sufficient reason or having waited for manipulation of hostility of
witnesses, such improper conduct would certainly be a justifiable reason for
the Court to refuse to invoke its powers under section 482 of the Code of
Criminal Procedure.

(ix) The fact that the co-accused have secured acquittal in the trial against
them in the absence of absconding co-accused cannot by itself be reckoned
 as a relevant circumstances while considering invocation of the powers under
section 482 of the Code of Criminal Procedure.

(x) A judgment not inter partes cannot justify the invocation of the doctrine
of issue estoppel under the Indian Law at present.

(xi) Conscious of the above general principles, the High Court has to consider
in each case whether the powers under section 482 of the Code of Criminal
Procedure deserve to be invoked. Judicial wisdom, sagacity, sobriety and
circumspection have to be pressed into service to identify that rare and
exceptional case where invocation of the extraordinary inherent jurisdiction
is warranted to bring about premature termination of the proceedings
subject of course to the general principles narrated above.

CASE LAW

Devendrappa Case

Discuss the scope of inherent jurisdiction of the Court

In State of Karnataka v. M. Devendrappa, MANU/SC/0027/2002 : 2002 (3) SCC 89,

the fact of the case was that, the Inspector of Police (Fraud Squad) submitted a
charge-sheet against the respondents in the aforesaid case allegation commission
of offences punishable under sections 465, 468, 471 and 420 read with section
120B of the IPC. On receipt of complaint made by COD, the cognizance was taken
by the CIM, fumkur.

Respondents filed application before the Karnataka High Court under section 482 of
the Cr PC, 1973. The High Court observed that there was no definite evidence to
show that the accused respondents were directly involved.

Aggrieved by the said order quashing of the proceedings, this appeal has been filed
on behalf of the State of Karnataka.

Observations and decision of the Supreme Court

It was observed that, while exercising power under section 482 of the Cr PC, the
court does not function as a court of appeal or revision. Inherent jurisdiction under
the section though wide has to be exercised sparingly, carefully and with caution
and only when such exercise is justified by the tests specifically laid down in the
section itself. It is to be exercised ex debite justifiable to do real and substantial
justice for the administration of which alone courts exist. In exercise of the powers,
court would be justified to quash any proceedings if it finds initiation/continuance
of it amounts to abuse of process of court or quashing of these proceedings would
otherwise defeat the ends of justice when no offence is disclosed by the complaint,
the court may examine the question of fact.
The court further observed: "If the allegations set out in the complaint do not
constitute the offence of which cognizance, has been taken by the Magistrate, it is
open to the High Court to quash the same in the exercise of the inherent powers
under section 482 of the Code. It is not, however, necessary that there should be
meticulous analysis of the case before the trial to find out whether the case would
end in conviction or acquittal. The complaint has to be read as a whole if as it
appears that on consideration of the allegations in the light of the statement made
on oath of the complaint that the ingredients of the offence or offences are disclosed
and there is no material to show that the complaint is mala fide, frivolous or
vexations, in that even there would be no justification for interference by the High
Court.

In S.M. Seshagiri v. State of Andhra Pradesh, MANU/SC/0068/2008 : AIR 2008 SC

787, the Supreme Court held that the High Court should be extremely cautious and
slow to interfere with the investigation and/or trail of criminal cases and should not
shall the investigation and/or prosecution. However, if the High Court is satisfied
that the complaint does not disclose commission of any offence or prosecution is
barred by limitation or that the proceedings of criminal case would result in failure
of justice, then it may exercise inherent power under section 482 of Cr PC. In N.
Naveen Kumar v. State of Andhra Pradesh, MANU/SC/8147/2008 : AIR 2009 SC
241, it was held that section 482 Cr PC did not empower the Court to review its
own judgment by exercising inherent powers.

© Universal law Publishing Co.

 CHAPTER 10

PROBLEMS AND SOLUTIONS ON

CRIMINAL PROCEDURE CODE

Q. 1. H strikes L on the head with a stick causing fracture of the skull. H is tried on a
charge under section 325 of Indian Penal Code (voluntarily causing grievous hurt) before
a Magistrate of the first class. The court allows compounding of the offence by L, and H is
accordingly acquitted under section 320, Code of Criminal Procedure. L subsequently died
of an injury caused by H and therefore H is placed on trial before the court of session for
an offence under section 304, Indian Penal Code (culpable homicide not amounting to
murder). H contends that the trial cannot proceed in view of the previous acquittal. Will H
succeed?

Ans.: No, H cannot succeed.

Reasons:H has caused grievous hurt to L. He was acquitted by Magistrate of first class.
At that time, the fact of L's death had not occurred. The fact of L's death brings section
300(3) into operation. According to which a person convicted of any offence constituted by
an act causing consequences which together with such act, constituted a different offence
from that of which, he was convicted, may be afterwards tried for such last-mentioned
offence, if the consequences had not happened or were not known to the court to have
happened, at the time when he was convicted. An entirely separate criminal charge is now
framed and it is triable by Court of Session. Therefore, H's plea cannot succeed.

Q. 2. A, a top government functionary, accused of murder, whose underlings (subordinate

officials) are the witnesses in the case, is granted bail by the Session Court on the ground
that he is holding responsible position. Is it a bad judgment or not?

Ans.: Yes, prima-facie it appears to be a bad judgment.

Reasons: According to ratio of Gurbaksh Singh v. State of Punjab, MANU/SC/0215/1980 :

AIR 1980 SC 1632, anticipatory bail is granted on only such grounds as the applicant shows
the court that he has " reason to believe". Such belief must be founded on something
tangible, which the court can examine objectively. In present case, nothing tangible is
found by the Court.

Q. 3. Information is given to an officer-in-charge of a police station about the commission

of a non-cognizable offence. Can the police officer after recording the information start the
investigations?

Ans.: No, according to section 155 of Cr PC.

Reasons: No, in case of non-cognizable offence, police cannot take cognizance and start
investigation of its own. Police will have to get direction of this effect from area Judicial
Magistrate or Metropolitan Magistrate.

Q. 4. A, an indigent accused has been convicted in a trial in which he was not provided
legal aid. He prays for the conviction to be set aside because he could not defend himself
properly without the help of any advocate?

Ans.: Yes, the conviction of accused is liable to be set aside.

Reasons:Free and fair trial is the right of every accused section 304 Cr PC provides for
making available the services of advocate to indigent accused at state's cost. It is the rule
of Natural Justice that "no one should be condemned unheard". In present case, the
accused did not get reasonable opportunity to defend himself the whole trial gets vitiated
and his conviction is liable to be set aside.

Q. 5. A is arrested without warrant. He claims to be informed about his crime and the
grounds of his arrest. Whether he should be produced before a magistrate within 24 hours
of his arrest?

Ans.: Yes, according to sections 50 and 57 of Cr PC.

Reasons:Though police has power to arrest a person without warrant if he is an accused

in a cognizable offence or to prevent the commission of a cognizable offence but police
cannot keep anybody in its custody without producing him before the magistrate within 24
hrs. The relevant laws have been laid down in Sections 50 and 57 of Cr PC.

Q. 6. Can a woman be given bail, when there is reasonable grounds for believing that she
has been guilty of an offence punishable with death or life imprisonment?

Ans.: No.

Reasons: No, gender alone is not the consideration for grant or refusal of bail.

Q. 7. Divakar lodges a complaint that his wife Devi had been defamed by the imputation
of unchastity to her. Can Devi lawfully compound the offence without the consent or against
the wishes of Divakar?

Ans.: Yes, only Devi can compound offence although the complaint has been filed by her
husband.

Reasons: Section 320 Cr PC exhaustively deals with compounding of offences. An offence

under section 500, Indian Penal Code can be compounded by the person defamed. In this
case, Devi has been alleged to have been defamed. Thus only Devi, can compound offence
although the complaint has been filed by her husband. The consent of husband is not
necessary according to law. Therefore, she can compound the offence even against the
wishes of her husband.
Q. 8. Nirmal, an accused was arrested for offence under section 302 IPC on 1st January,
2002, and remanded to judicial/police custody on 2nd January, 2002. Will the day of arrest
and day of remand both have to be excluded for computing the period of 90 days of section
167 (2) Cr PC?

Ans.:Yes

Reasons:For the purpose of section 167 (2) Cr PC, the day of arrest i.e. 1st January, 2002
and the day of remand i.e. 2nd January, 2002, both have to be excluded and the 90th day
shall fall on 2nd April, 2002.

Q. 9. A, files a petition in the court of Chief Judicial Magistrate regarding commission of an

offence but makes no prayer for taking action against accused persons . Can this petition
be treated as complaint petition?

Ans.: No, this petition cannot be treated as complaint petition-Section 2 (d) and Ahmed's
case, 17 CWN 980 and Haiders case, 36 A 222.

Reasons: The relevant part of the section 2 (d) which gives the definition of a complaint,
states that in a complaint petition it must be mentioned that the Magistrate should take
action under this code. Thus, if the petitioner does not make a prayer in a petition filed
before the Magistrate for taking action under Cr PC, 1973, the petition cannot be treated
as complaint petition. The same view was taken by courts in Ahmed's case 17 CWN 980
and Haider's case 36A 222.

In the present case, A has not made a prayer in the petition, thus it is not a complaint
petition.

Q. 10. A and B were performing a journey from Mumbai to Kolkata. Somewhere between
Mumbai and Allahabad, an altercation took place between A and B regarding reservation
of berth and A caused grievous hurt to B. Both A and b broke their journey at Allahabad
and reached Kolkata court try the offence of causing grievous hurt by A to B? Give reasons
in support of your answer.

Ans.: No, Kolkata Court cannot try the offence - Piram's case, 21 WR 66 Cr.

Reasons: According to section 183 Cr PC, on which this problem is based, when as offence
is committed by or against a person in the course of a journey then the offence may be
tried by a court through whose local jurisdiction that person passed. The facts of the
present problem are based on Piram's case. In this case the court held that journey should
be continuous form one terminus to another without interruption by either party and as
both complainant and accused separated as Allahabad and reached Calcutta by different
trains the Calcutta Court has no jurisdiction to try the offence.
Thus, it can be said that in the present problem the Kolkata Court cannot try the offence
of grievous hurt caused by A to B, neither A nor B completed the journey by the same train
upto Kolkata.

Q. 11. Can a court of Additional Sessions Judge take direct cognizance of an offence? If
so, under what provision of law.

Ans.: An additional Session Judge may take cognizance in certain circumstances

mentioned in section 193 of Cr PC.

Reasons: Section 193 of Cr PC deals with the provision of "cognizance of offences by

courts of session". This section reads as follows: "Except as otherwise expressly provided
by this Code or by any other law for the time being in force, no court of session shall take
cognizance of any offence as a court of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code."

Thus, according to section 193, an Additional Sessions Judge may take cognizance directly
when there is a specific provision in Cr PC in this regard or there is a specific provision in
any other law that is in force.

Q. 12. After the charge is framed and the trial is in progress, can the court alter the charge?

Ans.: Yes, the court can alter the charge-Section 216(1)

Reasons: Section 216(1) of the Cr PC lays down that any court may alter or add to any
charge at any time before judgment is pronounced.

In the present case, the trial is in progress, that is to say that judgment has not been
pronounced. Thus, the court can alter the charge even after the charge has been framed.

Q. 13. A, is tried by a Court of Session and he is convicted. The court passes a sentence
of imprisonment for two months and Rs. 200 as fine. A, wants to file an appeal in the High
Court against the conviction. Advise?

Ans.: Section 376 Cr PC deals with the provision of appeal in petty cases. According to
section 376 (b), an appeal is not maintainable if the Court of Session passes only or
sentence of imprisonment for a term not exceeding 3 months or fine not exceeding Rs.
200 or of both.

Reasons: In the present case, the Session Judge passes the sentence of imprisonment for
2 months only and fine of only Rs. 200 against the accused A. Hence appeal will not lie
against the judgment of the Session Judge. Thus, A is advised not to file appeal in the High
Court as the appeal is not maintainable.

Q. 14.Can an 'anticipatory bail' be granted to a person against whom no FIR/complaint

has been lodged/filed?
Ans.: Yes, it can be granted - Suresh's Case, 1978 Cr LJ 677D.

Reasons: Section 438 which deals with the provision of "anticipatory bail" in a non-bailable
offence, states that "anticipatory bail" can be granted to a person which he has reasonable
apprehension of arrest regarding the commission of a non-bailable offence.

This section does not use the term 'accused' but uses the term 'person'. Thus, a person
can be granted 'anticipatory bail' if he has reasonable apprehension of arrest regarding a
non-bailable offence even if no FIR/complaint has been lodged against him and he has not
been made accused. The same view was taken by the High Court in Suresh's case 1978 Cr
LJ 677 (D).

Q. 15. A is prosecuted for the offence of murder. Before the pronouncement of judgment,
the public prosecutor seeks permission from the Sessions Judge for withdrawal from
prosecution. Is the Session's judge bound to give consent to the Public Prosecutor for
withdrawal from prosecution under section 321? Give reasons for your answer?

Ans.: No, the Sessions Judge is not bound to give consent for withdrawal from prosecution
under section 21 - Sher Singh's Case, 36 CWN 16 and Supreme Court in Balwant v.
State MANU/SC/0075/1977 : AIR 1977 SC 2265.

Reasons: Under section 321, the Public Prosecutor can withdraw from prosecution with
the consent of the Court at any time before judgment is pronounced. It is notable that the
court is not bound to give consent in all circumstances.

In Sher Singh's Case, it was held that consent by the Court is not given as a matter of
course. In Balwant v. State, the Supreme Court held that the Court should be vigilant at
the time of giving consent to withdrawal from prosecution.

On the basis of aforesaid discussion, it can said that in the present case the Sessions Judge
is not bound to give consent to withdraw from prosecution against the accused.

Q. 16. A and B are tried by a Court for some offence. The trial Court convicted the accused
A and passes a sentence which is appealable, while the Court convicting the accused B
passes a sentence which is not appealable. B wants to prefer the appeal. Advise B.

Ans.: B is advised to go in appeal as the appeal is maintainable -Section 380.

Reasons: Section 380 of Cr PC deals with law relating to special right to appeal in certain
cases. This section provides that when more persons than one are convicted in one trial,
and an appealable order/judgment is passed in respect of any of such persons, all or any
such persons convicted in such trial shall have a right to appeal. The section also states
that provision of section 380 would be applicable even if there is any other provision in the
Chapter of appeal inconsistent with this provision.
In the present case, the judgment of conviction of B is not appealable yet his appeal is
maintainable in view of the law laid down in section 380 of Cr PC.

Q. 17. Trial of an offence is held in a wrong district, state with reasons. Whether trial is
vitiated in this case or not?

Ans.: No, trial will not be vitiated unless it appears that such error has infact occasioned
and a failure of justice-Section 462.

Reasons: Section 462, on which the present question is based, states that no finding of
any criminal court shall be set aside merely on the ground that a trial has taken place in a
wrong sessions/division/district (unless it appears that error regarding trial in wrong place
has infact occasioned a failure of justice).

Thus, in the present case, the trial of an offence held in a wrong district is not vitiated
(unless it is shown that error regarding trial in wrong district has in fact caused injustice
to the accused.

Q. 18. In a 'summons' trial, an accused pleads guilt under section 252 Cr PC. After such
pleading of guilt, the magistrate convicts the accused and does not follow the procedure
under section 281 (record of examination of accused) of Cr PC. Is the conviction illegal?
Give reasons and refer to the case law, if any, on this point.

Ans.: No, the conviction is not illegal-Supreme Court in Kaushalya v.

State, MANU/SC/0082/1965 : AIR 1966 SC 22.

Reasons: The Supreme Court, in Kaushalya v. State, observed that section 252 of Cr PC
being a special provision, overrides the general provision prescribed by section 281 and a
conviction without following the provisions of section 281 is valid and legal.

In present case, the Magistrate does not follow the provision of section 281 of Cr PC and
convicts the accused on his 'plea of guilt'. Thus, the conviction made by the Magistrate is
not illegal.

Q. 19. A, an accused has given answers to the question put to him while recording his
statement under section 313 of Cr PC. Whether the answers can be taken into
consideration?

Ans.: Yes, the answer given by the accused may be taken into the consideration under
section 313 Cr PC.

Reasons: Under section 313 (4), the answers given by the accused may be taken into
consideration in the inquiry or trial. The answers may be put in evidence for or against him
in other inquiries or trials for other offence, which such answers may tend to show he has
committed.
Q. 20. In the course of investigation, N told the police officer that he saw C shooting D
dead. Subsequently, at the trial of C for D's murder, N deposed that C first slapped D and
then shot him dead. In cross-examination, he had said that the defence counsel wants to
ask N whether in the course of investigation slapped D before shooting him. Can the
question be allowed?

Ans.: No, in the case in hand, it is evident that the omission does not amount to a
contradiction, therefore the question cannot be allowed.

Reasons: The explanation of section 162 states that an omission to state a fact or
circumstance in the recorded statement may amount to contradiction. However, every
omission is not contradiction.

An omission can amount to contradiction if it appears to be significant and otherwise

relevant having regard to the context in which such omission occurs. In other words, such
omission must vitally touch the very factum, which is required to be proved by the
prosecution.

© Universal law Publishing Co.

 Table of Cases

A.D.M., Jabalpur v. Shivakant Shukla, MANU/SC/0029/1975 : 13

AIR 1976 SC 1027

A.T. Baby Warghese v. State of Kerala, 1981 Cr LJ 1165 37

A.V. Sreedhar Reddy v. State of Andhra Pradesh, (1985) 3 52

APLJ 304

Abdul Halim v. State of West Bengal, MANU/WB/0058/1961 : 29

AIR 1961 Cal 257

Abdul Rahman Antulay v. R.S. Nayak, MANU/SC/0326/1992 : 18

AIR 1992 SC 1701

Abhinandan Jha v. Dinesh Mishra, AIR 1961 SC 117 45

Administrator-General v. Prem Lal, 22 IA 107 2

Adri Dharan Das v. State of West Bengal, I (2005) CCR 221 86,
(SC) 88,
89, 90

Ahmed’ s case, 17 CWN 980 119

Amar Singh v. Balwinder Singh, MANU/SC/0065/2003 : (2003) 24

2 SCC 518: 1 (2003) SLT 733

Amrendra Nath v. State of Bihar, MANU/BH/0017/1955 : AIR 12

1955 Pat 106

Anu Meah v. Tripura Administration, AIR 1961 Tri 4 24

Anwari Begum v. Sher Mohammad, IV (2005) CCR 25 (SC) 82

Arun Shourie v. State, 1989 Raj Ch Crl 25 30

Aslam Meah, (1917) 45 Cal 816 109

Asstt. Collector of Customs v. L.R. 50

Melwani, MANU/SC/0279/1968 : AIR 1970 SC 962

B.P. Zina, 1970 Cr LJ 919 74

Baidya Nath Singh v. Muspratt, ILR 14 Cal 141 53

Balachand Jain v. State of Madhya Pradesh, AIR 1977 SC 366: 86,

(1976) 4 SCC 572 87, 91
Balakrishnan v. State, MANU/KE/0100/1958 : AIR 1958 Ker 57
283

Balwant v. State MANU/SC/0075/1977 : AIR 1977 SC 2265 120

Bandhu Lal v. Chattu Gope, AIR 1918 Cal 850 2

Beli Ram v. State of Himachal Pradesh, 1980 Cr LJ 391 32

Bhagat Singh v. State, AIR 1952 SC 45 67

Bihar Legal Support Society v. Chief Justice of 90

India, MANU/SC/0213/1986 : 1986 (4) SCC 764

Binay Das v. State of Orissa, (1987) 64 Cut LT 8 29

Bindeshwari Prasad Singh v. Kali 2

Singh, MANU/SC/0100/1976 : AIR 1977 SC 2432

Budhai Sheikh, (1905) 33 Cal 292 59

Chamukuttan Nair v. State of Kerala, (1965) 1 Cr LJ 387 (2) 5

Chandra v. State, (1951) 53 Bom LR 928 (Full Bench) 59

Chandrashekhanan, M.R. v. State of Karnataka, (1978) 2 Kar 33

LJ 273

Chandubhai Goverdhanbahi v. State, (1960) 2 GLR 266 72

Chinan Singh v. E., ILR 15 Lah 814 24

Chinna Ramana Gowd v. Emperor, ILR 31 Mad 506 36

Chittaranjan Das v. State of West 4

Bengal, MANU/WB/0039/1963 : AIR 1963 Cal 191

D.K. Basu v. State of West Bengal, MANU/SC/0157/1997 : AIR 18

1997 SC 610

Darshan Singh Ram Singh v. State of 49

Maharashtra, MANU/SC/0089/1971 : (1971) 2 SCC 654: AIR
1971 SC 2372

Dattatraya v. Wadilal Panchal, MANU/MH/0233/1957 : AIR 49, 52

1958 Bom 335

Dhanjibhoy v. Karim Khan, (1904) PR No. 14 of 1905 57

Dharma Ram Bhagare v. State of Maharashtra, 1974 (II) SCJ 23

349
Dolat Ram v. State of Haryana, MANU/SC/0921/1995 : 1995 84
(1) SCC 349

E. Pedda Subba Reddy v. State, MANU/AP/0079/1969 : AIR 7

1969 AP 281

Emperor v. Alloomiya Hussain, ILR 288 12

Emperor v. Nga Aung Po, 2 Cr LJ 474 36

Emperor v. Thakuri, MANU/OU/0080/1940 : AIR 1940 Oudh 29

413

Father Godfrey Meeus v. Simon Dulac, AIR 1950 (Nag) 454 109

Ganesh (in re:), ILR 13 Bom 590 (FB) 1

Gopal Das Sindhi v. State of Assam, AIR 1961 SC 986 50

Gopalan v. State of Madras, MANU/SC/0012/1950 : AIR 1950 2

SC 27

Govind S. Walanalkar v. Pandarinath, (1985) 87 Bom LR 1 25

Guru Charna (in re:), 1 CWN 650 12

Gurbaksh Singh Sibbia v. State of 85, 91

Punjab, MANU/SC/0215/1980 : AIR 1980 SC 1632: 1980 (2)
SCC 565

Gurbaksh Singh v. State of Punjab, MANU/SC/0215/1980 : AIR 117

1980 SC 1632

Gurcharan Singh v. State (Delhi Administration), AIR 1978 SC 83, 95

179: (1978) 1 SCC 118

H.S. Bains v. State, MANU/SC/0126/1980 : AIR 1980 SC 1883 30

Hafiz Mohammad v. Emperor, MANU/BH/0132/1931 : AIR 32

1931 Pat 150

Haiders case, 36 A 222 119

Harbir Singh v. State, AIR 1952 Pepsu 29 52

Hasan Adbulla v. State, MANU/GJ/0059/1962 : AIR 1962 Guj 22

218
Hasib v. State of Bihar, MANU/SC/0180/1971 : AIR 1972 SC 23
283

Hittu Bansi v. Sheolal Dinaji, MANU/NA/0128/1947 : AIR 1948 36

Nag 243

Hussainara Khattoon v. State of Bihar, AIR 1980 SC 1819 16

Inder, (1941) 22 Lah 519 79

Indupuri Gangarazu (in re:), 2 Weir 239 52

J.K. More v. Chief Presidency Magistrate, 71 Cal WN 508 11

Jagannath v. State of Harayana, 1983 Cr LJ 1574 60

Jagmalaram v. State of Rajasthan, 1982 Cr LJ 2314 64

Jai Sankar (Dr.) v. State of Himachal Pradesh, AIR 1972 SC 74A

3267

Jai Singh v. State, AIR 1967 Del 14 24

Jamaluddin Sk. v. State of Bihar, 1980 Cr LJ 1054 52

Janata Dal v. H.S. Chowdhary, III (1992) CCR 326 111

(SC): MANU/SC/0532/1992 : 1992 (4) SCC 305

Jayendra Saraswathi Swamigal v. State of Tamil 81

Nadu, MANU/SC/0017/2005 : AIR 2005 SC 716

Joginder Kumar v. State of Uttar 19

Pradesh, MANU/SC/0311/1994 : (1994) 4 SCC 260

K. Dhulabhai v. P. Ganesh Bhai, 1969 Cr LJ 729 73

K. Prema S. Rao v. Yadla Srinivasa 58

Rao, MANU/SC/0890/2002 : (2003) 1 SCC 217: 2003 Cr LJ SC
69: AIR 2003 SC 11

K.L. Verma v. State, (1996) 7 SCALE 20 87

K.M. Nanawati v. State of Maharashtra, MANU/SC/0147/1961 : 28

AIR 1962 SC 605

K.N.N. Ayyanger v. State, AIR 1954 MB 101 29

Kachi Hazam v. Seraj Khan, MANU/WB/0278/1934 : AIR 1935 24

Cal 403
Kadiri Kunhahammad, MANU/SC/0212/1959 : AIR 1960 SC 57
661

Kailash v. Laxminarayan, AIR 1966 Raj 364 71

Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu 75,

Yadav, MANU/SC/0045/2005 : AIR 2005 SC 921:AIR 2004 SC 82,
1866: (2004) 7 SCC 528: II (2004) CCR 16 (SC):II (2004) SLT 85,
605: JT 2004 (3) SC 442 91, 92

Kanchan Gorhi v. Ram Kishun Mundal, ILR 36 Cal 72 53

Kanshiram Jhunjhunwalla v. State, (1935) 62 Cal 808 60

Karumuthu S. Chokalingam v. T. Kannappan, 1976 LW (Cr) 60 55

Kaushalya v. State, MANU/SC/0082/1965 : AIR 1966 SC 22 121

Khatri v. State of Bihar, MANU/SC/0518/1981 : AIR 1981 SC 66

928: 1981 Cr LJ 470

Khushi Ram v. Hashim, AIR 1959 SC 542 2

King v. Saw Min, AIR 1939 Rang 219 38

Kishore Singh v. State of Rajasthan, MANU/SC/0072/1980 : 17

AIR 1981 SC 625

Krishnan v. State of Madras, MANU/SC/0008/1951 : AIR 1951 2

SC 301

Lachmanan Chetti v. King-Emperor, (1904) 1 Cr LJ 539 (540) 34

Lal Chand v. State, (1964) 2 Cr LJ 115 29

Lohana Dhiraj Lal v. State 1973 Cr LJ 82 74

M.L. Sethi v. R. P. Kapur, MANU/SC/0098/1966 : AIR 1967 SC 5

528 (536, 537)

M.P. Sharma v. Satish Chandra, MANU/SC/0018/1954 : AIR 14

1954 SC 300

Madhu Bala v. Suresh Kumar, MANU/SC/0806/1997 : (1997) 46

8 SCC 476

Mahesh Parsad v. Mahavir Singh, MANU/UP/0132/1960 : AIR 74

1960 All 507

Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : AIR 17

1978 SC 597
Maniappa v. State, (1980) 1 Crimes 94 52

Manicka Reddy (in re:), MANU/TN/0430/1967 : AIR 1968 Mad 35

225

Mannalal v. State, MANU/WB/0117/1967 : AIR 1967 Cal 478 57

Manorama Mohapatra v. Harihar Sathua, (1990) 1 Crimes 496 54

Methu Ram Das v. Jagannath Dass, ILR 28 Cal 794 36

Minu Kumari v. State of Bihar, II (2006) CCR 137 (SC) 53,

54,
111

Moosa v. Sub-Inspector of Police, II (2006) CCR 445 (FB) 114

Mor Mohamud v. Emperor, AIR 1940 Sind 168 37

Moti Ram v. State of Madhya Pradesh, MANU/SC/0132/1978 : 99

(1978) 4 SCC 47

N.H. Hoskot v. State of Maharashtra, MANU/SC/0119/1978 : 15

AIR 1978 SC 1548

Nandini Satpathy v. P.L. Dani, MANU/SC/0139/1978 : AIR 14

1978 SC 1025

Nanilal Samanta v. Robin Ghose, (1964) 1 Cr LJ 186 50

Narayan v. Shankarsingh, MANU/NA/0075/1944 : AIR 1944 55

Nag 318

Nazir Ahmed v. King Emperor, MANU/PR/0020/1936 : AIR 43

1936 PC 253

Niranjan Singh v. Prabhakar Rajaram 90

Kharote, MANU/SC/0182/1980 : AIR 1980 SC 785

P. Ramachandra Rao, (2002) 4 SCC 507 18

P.L. Jalan v. Gour Mohan Chandra, 1969 Cr LJ 808 34

Pakala Narayana Swami v. Emperor, MANU/PR/0001/1939 : 35

AIR 1939 PC 47

Panchanan Mishra v. Digambar Mishra, 1 (2005) SLT 546: I 83

(2005) CCR 77 (SC): 2005 (3) SCC 143

Parwari v. Emperor, MANU/UP/0327/1919 : AIR 1919 All 276 26

People v. Defore, 242 NY 13 19

Piraen’ s case, 21WR 66 Cr. 119

Prabhu v. Emperor, MANU/PR/0035/1944 : AIR 1944 PC 73 29

Prahlad Singh Bhati v. N.C.T. of Delhi, MANU/SC/0193/2001 : 97

(2001) 4 SCC 280

Pramathanath v. Saroj Ranjan, 1962 (Supp) 2 SCR 297 55

Prem Shankar v. Delhi Administration, MANU/SC/0084/1980 : 17

AIR 1980 SC 1535

Prematha Nath Mukherjee v. State of West

Bengal, MANU/SC/0083/1960 : AIR 1960 SC 810: 1960 Cr LJ
1165:

(1960) 3 SCR 245 69

Public Prosecutor v. Hatam Bhai, AIR 169 AP 99 30

Public Prosecutor, Madras v. George Williams @ 94

Victor, MANU/TN/0336/1951 : AIR 1951 Mad 1042

Pullamma v. Emperor, 1932 Mad Cr C 67 39

Puran v. Ram Bilas, III (2001) SLT 869: II (2001) CCR 255 82
(SC): MANU/SC/0326/2001 : 2001 (6) SCC 338

Pyli Yaccob v. State, AIR 1953 TC 466 7

Queen-Express v. Kuniyil Raru, ILR 24 Mad 337 51

R.P. Kapur v. State of Punjab, MANU/SC/0086/1960 : AIR 112

1960 SC 866

Raghubir Saran (Dr.) v. State of Bihar, MANU/SC/0061/1963 : 111

AIR 1964 SC 1

Rahim Sheikh v. R., MANU/WB/0501/1923 : AIR 1923 Cal 724 2

Ram Chander v. State of Haryana, MANU/SC/0206/1981 : AIR 66

1981 SC 1036

Ram Chandra v. State of Uttar Pradesh, 1977 Cri LJ 1783 12

Ram Govind Upadhyay v. Sudarshan Singh, II (2002) CCR 16 82

(SC): II (2002) SLT 587:MANU/SC/0203/2002 : (2002) 3 SCC
598

Ram Krishna Dalmia v. State, 1958 Pun 172 25

Ram Kumar v. State, 1976 CLR 67 (P&H) 29

Ram Rijhumal v. State, MANU/MH/0036/1958 : AIR 1958 Bom 33
125 (132)

Ramaswami (in re:), MANU/TN/0075/1922 : AIR 1922 Mad 1

443

Ramdeo v. Ramjanam MANU/BH/0044/1951 : AIR 1951 Pat 54

449

Rao Harnarain Singh v. State, AIR 1958 Punj 123: 1958 Cr LJ 92

563

Ravinder Kumar v. State of Punjab, MANU/SC/0536/2001 : 24

(2001) 7 SCC 690

Reily v. R., ILR 28 Cal 434 6

S. Sant Singh v. Secretary, Home Department, Government of 75,

Maharashtra,II (2006) CCR 241 (FB) 100,
103

S.N. Palanikar v. State of Bihar, MANU/SC/0672/2001 : AIR 53

2001 SC 2960

S.N. Sharma v. Bipen Kumar Tiwari, MANU/SC/0182/1970 : 34

AIR 1970 SC 786

Sahebrao v. State of Maharashtra, II (2006) CCR 158 (SC) 24

Salauddin Abdulsamad Shaikh v. State of 87

Maharashtra, MANU/SC/0280/1996 : AIR 1996 SC 1042

Samunder Singh v. State of Rajasthan, MANU/SC/0278/1987 : 92

(1987) 1 SCC 466

Sanghar Ladha, 1971 Cr LJ 949: MANU/GJ/0043/1971 : AIR 74

1971 Guj 148

Sanjay Suri v. Delhi Administration, MANU/SC/0137/1987 : 12

AIR 1988 SC 414

Saraswatiben v. Thakore Lal, MANU/GJ/0067/1966 : AIR 1967 69

Guj 263

Shamim v. State of Bihar, 1986 Cr LJ 1383 35

Shanthanand v. Basudevanand, MANU/UP/0001/1930 : AIR 2

1930 All 225 (247) (FB)

Shanti Lal Daya Shanker, (1962) 1 Cr LJ 817 73

Sheik Meeran Saib v. Ratnavelu Reddy, AIR 1915 Mad 128 48

Sher Singh’ s Case, 36 CWN 16 120

Shiv Bahadur Singh v. State of Vindhyachal 2

Pradesh, MANU/SC/0081/1953 : AIR 1953 SC 394

Shive Sharnagat v. State, AIR 1953 Bhopal 21 36

Sholapur Mun. Corpn. v. Ram Krishna, (1968) 71 Bom LR 481: 109

1970 Cr LJ 1330

Shukul v. Emperor, 34 Cr LJ 689 33

Shyam Lal v. State of Madhya Pradesh, MANU/SC/0248/1972 : 41

AIR 1972 SC 886

Soni N. Prabhudas v. State of Gujarat, 1983 Cr LJ 934 30

Sorualingam Chettiar (in re:), MANU/TN/0279/1955 : AIR 41

1955 Mad 685

Sripat Rai v. Emperor, MANU/UP/0221/1930 : AIR 1931 All 10 51

State (Delhi Administration) v. Sanjay 98

Gandhi, MANU/SC/0171/1978 : (1978) 2 SCC 411

State of Assam v. Abdul Noor, MANU/SC/0192/1970 : AIR 30

1970 SC 1365

State of Assam v. Upendra Nath Rajkhosla, 1975 Cr LJ 354 22, 40

(Gau)

State of Gujarat v. Lal Singh, MANU/SC/0233/1980 : AIR 1981 5

SC 368

State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 112,
114

State of Haryana v. Mahinder Singh, (2003) 3 SCC 394 103

State of Haryana v. Naurattan Singh, MANU/SC/0176/2000 : 103

(2000) 3 SCC 514

State of Himachal Pradesh v. Gian 24

Chand, MANU/SC/0312/2001 : (2001) 6 SCC 71: III (2001)
SLT 740

State of Karnataka v. M. Devendrappa, MANU/SC/0027/2002 : 115

2002 (3) SCC 89

State of Kerala v. Ramakrishna, 1963 KLT 478 54

State of Kerala v. Samuel, AIR 1962 Ker 99 22

State of Maharashtra v. Sindhi, MANU/SC/0218/1975 : AIR 74B
1975 SC 1665

State of Mysore v. Biswanath Rao, AIR 1966 Mys 71 79

State of Orissa v. Saroj Kr. Sahoo, IV (2005) CCR 299 (SC) 111,
112

State of Punjab v. Gurmit Singh, AIR 1988 SC 3164 17

State of Punjab v. Piara Singh, 1978 Cr LJ 178 (P&H) 30

State of Rajasthan v. Aruna Devi, MANU/SC/0515/1995 : 55

(1995) 1 SCC 1

State of Rajasthan v. Balachand @ Bally, (1977) SC (Cri) 594 96

State of Rajasthan v. Balchand, 1978 Cr LJ 195 79

(SC): MANU/SC/0152/1977 : AIR 1977 SC 2447

State of Rajasthan v. Rehman, MANU/SC/0181/1959 : AIR 40

1960 SC 210

State of Uttar Pradesh v. Bhagwant 28

Kishore, MANU/SC/0066/1963 : AIR 1964 SC 221

State of Uttar Pradesh v. Deoman, MANU/SC/0060/1960 : AIR 8

1960 SC 1125

State of West Bengal v. Joginder Mallick, 1970 Cr LJ 539 5

State of West Bengal v. S.K. Guha, MANU/SC/0120/1982 : 114

1982 (1) SCC 561

State through C.B.I. v. Amarmani Tripathy, IV (2005) CCR 33 83, 90

(SC)

State v. Dhanpat, 1966 RLW 122 30

State v. Ram Singh, 1973 Cr LJ 150 (HP) 36

State v. Shiv Singh, MANU/RH/0002/1962 : AIR 1962 Raj 3 22

Subhas Aggarwal v. State of Bihar, 1989 Cr LJ 1752 22

Subramaniam v. Commissioner of 7
Police, MANU/TN/0202/1963 : AIR 1964 Mad 185

Sunil Gupta v. State of Madhya 17

Pradesh, MANU/SC/0661/1990 : (1990) 3 SCC 119

Sunita Devi v. State of Bihar, MANU/SC/1032/2004 : AIR 2005 90

SC 498
Suraj Bhan Sarad Kumar v. Delhi Administration, 1981 Ch. Cr 30
C 53

Surendra Nath Banerjee v. Chief Justice and Judges of the High 1

Court of Fort William in Bengal, (1882-83) 10 Ind App 171: ILR
10 Cal 109 (PC)

Suresh’ s case 1978 Cr LJ 677 (D) 120

T.P. Singh v. State of Bihar, 1978 Cr LJ 1080 (Pat) 6

T.T. Antony v. State of Kerala, MANU/SC/0365/2001 : AIR 26,

2001 SC 2637: (2001) SLT 211: III (2001) CCR 55 (SC):2001 114
Cr LJ 3329

Tangedupalle Pedda Obigadu v. Pullasi Pedda, AIR 1922 Mad 34

40

Tehsildar Singh v. State of Uttar Pradesh, AIR 1956 SC 1012 44

Thakorbhai Sukhabhai, MANU/GJ/0062/1968 : AIR 1968 Guj 73

15

Thippareddigari v. Seshi Reddy, MANU/TN/0385/1954 : AIR 54

1954 Mad 889

Thomas v. Abraham Varghese, 1961 KLT 753 51

Tilakeshwar v. State of Bihar, MANU/SC/0035/1955 : AIR 1956 36

SC 238

Tula Ram v. Kishore Singh, MANU/SC/0163/1977 : AIR 1977 31

SC 2401

Tulsidas Jaglyadas v. Chetandas 52

Domadas, MANU/NA/0133/1933 : AIR 1933 Nag 374

Ullahanan Varkey v. Mathai Poulose, AIR 1954 TC 172 51

Union Carbide Corporation v. Union of 14

India, MANU/SC/0058/1992 : AIR 1992 SC 248

V.V. Perumal v. State, 1982 Mad LJ (Cr) 598 29

Workmen of Williamsons Magor and Co. Ltd. v. Williamsons

Magor and Co. Ltd.,
AIR 1982 SC 78 4

Yeshwant v. State, (1926) 28 Bom LR 497 58

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