SYMBIOSIS LAW SCHOOL, PUNE

CRIMINAL PROCEDURE CODE – 2nd INTERNAL ASSESSMENT

REPORT ON GUEST LECTURES

SUBMITTED BY:
SHREYA SINGH
2nd YEAR
B.A. LLB(Hons.)
DIVISION: ‘D’
18010125345
 PART I

INTRODUCTION

Details of the Speaker (Adv.Ganu): An Alumnus of ILS Law College, Pune, Faculty in National
Insurance Academy, Pune, Faculty for Motor Vehicle Act and Consumer Protection Act, visiting
faculty at ILS Law College, Pune, Guest Faculty in Medical Conferences, Invited for lecture at
Gujrat National Law University.

The relevant provisions of the Code as discussed by Adv. Ganu:

1. Section 154: “First Information Report” (hereinafter referred to as ‘the FIR’) is not
defined in the Code, but has been understood to be information recorded under this section.
2. Section 156: In the case of a cognizable offence the police may hold an investigation
irrespective of any order of the court.
3. Section 157: establishes the procedure to be followed for investigation. A police
officer, as soon as he receives information, or has reasons to suspect the commission of
any cognizable offence, is statutorily required to report to the appropriate
Magistrate.1
4. Section 160: This Section authorizes a police officer making an investigation to
require attendance before himself of any person who appears to be acquainted with the
facts. The proviso to the Section creates an exception to men under fifteen and women from
being required to attend.
5. Section 161: Police-officer making an investigation can examine the person
acquainted with the facts of the case, and reduce the statement in writing.
6. Section 162: Ensures that no statement made to the police which is reduced to writing
be signed by the person who makes it and that no such statement shall be used for any
purpose other than those stated in the same Section.2 FIR is not a statement for the
purposes of this Section.3

1
Om Prakash v. State of New Delhi, A.I.R 1974 S.C. 354.
2
Tahsildar v. State of UP, A.I.R 1959 S.C.1012.
3
V. Thomas v State of Kerala A.I.R 1970 Ker. 273b.

2|Page
 7. Section 164: A confession made by an accused in front of a magistrate can only be
admissible. The final discretion vests with the Magistrate on whether or not such
confession be conclusive.

ANALYSIS

The concept of custodial death is not new for the Indian society. Since the British rule, people
have been dying in the police custody during investigation. India has time and again witnessed
the basic fundamental rights of the prisoners being shattered and the use of coercion and torture
to take the favorable statement. The police administration is always criticized for custodial
deaths, torture, and the use of unlawful means during the investigations. ‘Custodial death’ can be
described as ‘death of a person in the custody of the police, prison service or other authorities. Its
legal validity is till date a controversial issue and is always debated as the popular retributive-
deterrent philosophy has validated this incarcerational barbarity.4 Though the authorities are
legally bound to provide adequate necessary amenities and ensure the safety of the inmates by
providing them a healthy environment which includes timely medical assistance, but the real
scenario is different from what the legal implications suggest. It is also seen that mostly the
persons belonging to poor sections of the society or the ones that from the depressed castes face
this cruelty in prison.

The powers given to the Police administration for the purpose of dealing with the crimes in the
society are many times used by them to implicate innocent and poor people in false and fabricated
cases under local and special laws such as, Excise Act, Arms Act, Gambling Act, Suppression of
Immoral Traffic Act, Motor Vehicle Act etc. And it is an accepted fact that such arrests mostly
lead to immense physical and mental torture on the person arrested, due to which, he/she ultimately
commits suicide in the prison or dies because of the torture. The National Police Commission in
1981 admitted that around 60% of total arrests made by the police are unnecessary and unjustified.

4
V.R. KRISHNA IYER, CONSTITUTIONAL MISCELLANY, p.149, 151 2ndEdn (2003).

3|Page
An incident took place in the year 1997-98 in the state of Rajasthan, where Shri Baba Khan of
Kota had alleged in his complaint that there were illegal detention and torture by the police and
reported that he and his two brothers-in-law were forcibly taken away by the police authorities,
detained and tortured severely. The cognizance was taken for this complaint and the Chief
Secretary along with the Director General of Police, Rajasthan were asked to submit a report. The
report submitted by the State Police stated that the allegations were baseless and false but
disregarding this; the Commission ordered an investigation into the matter. The investigation
division established that the accusations were prima facie true.

Other cases mentioned by the National Human Rights Commission include the case of Shri.
Raghubir Yadav of Uttar Pradesh, abduction of Rama Rao by Andhra Police5, illegal detention of
Anil Kumar and D.M. Rege of Maharashtra6. Joginder Kumar vs. State of Uttar Pradesh7and D.K.
Basu vs. State of West Bengal.8

The unlimited powers of the police existing under Cr. PC9 which sometimes become the cause of
police custodial death, should be curtailed in the following ways:

(a) That power of the police regarding arrest without warrant in the case of a cognizable
offence10 merely on ground of suspicion should be re- stricted. Permission of the
magistrate before making such arrest should be made necessary. In case an immediate
arrest is necessary to avoid the accused's absconding, it should be made in the presence of
at least two reputed persons of the locality. For this purpose, section 4111 of Cr PC should
accordingly be amended.
(b) Similarly, the person, who has not been named in the F.I.R. in connection with the
commission of cognizable offence but subsequently disclosed by some prosecution

5
Case No. 5828/95-96/NHRC
6
Case No. 517/13/98-99
7
Joginder Kumar vs. State of Uttar Pradesh, A.I.R 1994 S.C.C. 260
8
D.K. Basu vs. State of West Bengal., A.I.R 1997 S.C.C. 610
9
Act no. 2 of 1974.
10
id, s. 2 (c) deals with definition of cognizable offence wherein the police can arrest the person
without warrant.
11
Id., dealing with power of police to arrest the person without permission of magistrate merely
on ground of suspicion of having some connection with commission of cognizable.

4|Page
 witness, in his statement under section 1 6 112 of the Code, should no longer be arrested
without the warrant. The aforesaid section 41 of the Code should also include such
provision.
(c) That at the rime of arrest, the accused should necessarily be examined medically at the
instance of the police. Failure of the accused to make the request for such medical
examination under section 5413 of the Code, should not exonerate the police from such
liability. In this context the said provision of section 54 should accordingly be amended.
(d) That in the case of arrest of any person, police should also inform his relation and the
chief judicial magistrate about the grounds of arrest other than the person so arrested.
Failing which the magistrate should specifically be authorized to ask the police to
produce the person so arrested and let him free if he finds the detention to be illegal. The
magistrate should legally be bound to get the arrested person examined medically as soon
as he is produced before him. In this context, section 5014 of the Code should accordingly
be amended.
(e) That due to the advancement of the means of transport and telecommunication all over
the country, the period of 24 hours under section 5715 of the Code, for which police can
detain any arrested person, should substantially be reduced. For this purpose, the
aforesaid section should accordingly be amended.
(f) That some specific provision to ensure compensation for the deceased's family in cases of
police custodial death without any bar to civil remedy, should be made under the Code.16

12
Id, dealing with examination of witnesses by police during investigation.
13
Id, dealing with examination of accused by medical practitioner at the request of police
officer.
14
Id, dealing with duty of police to communicate to the arrested person the grounds
15
Id, dealing with duty of police to produce the arrested and detained person in custody before
the magistrate within a period of 24 hours.
16
Police custodial death: A growing abuse to human rights in India by Kambojh N.S., available at
https://ndl.iitkgp.ac.in/document/cTFOUXJ2MitsTlo4NEpmdzJVcGJYa1p1U2MyWXA5TUVhSnBwSmZXNFBod
z0#0

5|Page
 CONCLUSION

No doubt, stern actions are taken against persons found guilty in police custodial deaths besides
holding the state liable in such cases. But still these cases are increasing. 17The reason behind it is
the unlimited powers police enjoy under the existing legal system of the country. Being
custodians of law, they are themselves in possession of police records. Hence it is very difficult
to establish their guilt in cases of police custodial deaths. Consequently, they easily escape from
criminal liability in such cases. Recent establishment of the Human Rights Commission 18 is quite
encouraging and may yield fruitful results regarding human rights in the country. It has been
empowered to enquire into any complaint of violation of human rights and make
recommendations to the government against the guilty person. But it is still doubtful that the
commission would successfully prevent the police from misusing their powers which ultimately
become the cause of custodial death unless the same are curtailed through some specific
amendment.

Further scope for research can be “Should the power of the police regarding arrest without
warrant in the case of a cognizable offence merely on ground of suspicion be re- stricted”.

PART II

INTRODUCTION

Details of the Speaker (Adv. Sampath Bulusu): An Alumnus of Symbiosis Society’s Law
College, now Symbiosis Law School, Pune. Joined the bar in the year 2001 and practiced at High
Court of Andhra Pradesh, City Criminal Courts, Hyderabad, Administrative Tribunals and
appeared in number of Sessions Courts throughout the State of Maharashtra, Andhra Pradesh,

17
One Jagtar Singh (25), who was not involved in any way with the terrorists, was picked up by the police of Punjab
from his house, kept in custody for 10 days and ultimately gunned down in an encounter without making any
enquiry about his antecedents. Later on, he was declared the Lt. General of Khalistan Liberation Force. See "Fake
Encounters Back". The Hindustan Times 23 Nov. 1993.
18
Lok Sabha passed the Protection of Human Rights Bill 1993 (which replaced the ordinance promulgated in Sept.
1993) since the commission started functioning. See, The Hindustan Times, 18 Dec. 1994.

6|Page
Gujrat. Also appeared in the Supreme Court of India. Currently General Manager Legal Shell
Hazira LNG & Port. Sir specializes in Criminal Law, Litigation, Arbitration, Petroleum Laws,
Construction Law, Labour Law, Constitutional Law, Land Laws, Electricity Laws and Forensic
Sciences.
Adv. Sampath Bulusu, elaborated on the following provisions of CrPC:
Section 156(3): Any Magistrate empowered under section 190 may order such an investigation.
Section 190: Cognizance of offences taken by Magistrates.
Section 202: Deals with postponement of issue of process.
Section 436A: In computing the period of detention under this section for granting bail the
period of detention passed due to delay in proceeding caused by the accused shall be excluded.
Section 437: Grant of bail in case of non- bailable offence.
Section 438: Direction for grant of bail to person apprehending arrest.
Section 439: Special powers of High Court or Court of Session regarding bail.

ANALYSIS

ISSUE I: Conditions That May be Imposed in Bail: A bail condition must not unreasonably
violate the rights guaranteed by the Constitution. If the prosecution cannot show through evidence
that the person accused of an offence is at the risk of absconding, or is likely to interfere with the
judicial process, or is likely to commit the same offence, the accused person should be considered
eligible for release, without or with such financial obligations that are not excessive or onerous.
The court should consider the unique circumstances of each accused person and develop a method
to ensure that bail conditions are effective. For example, if the accused person is a driver by
profession, then, even though the offence he is accused of is not related to his work, the Court may
require him to deposit his driving license, as a pre-condition for release. Requirement of financial
obligations, either through the execution of a personal monetary bond, or through sureties should
be the last resort, when no other method is likely to work. If the court seeks the deposit of identity
cards, driving license or other documents, it should make available an attested copy of the
document to the accused person, certifying that the original has been deposited with the court.
Such attested copies should be permitted as proof of identity for availing State benefits, etc.

7|Page
In determining whether the person is likely to abscond, the court should look at factors other than
monetary considerations that may keep the person accused of an offence within the jurisdiction of
the court, such as the presence of family, job, other roots in the community etc. However, an
accused person should not be denied bail only because he is a migrant in the city of arrest and does
not have ties with the local community. The appearance of such a person may be enforced through
other means, as for example through informing the police of the place of ordinary residence of the
person accused of an offence that such accused is on bail and if he is seen in his home district, it
should be checked whether he is in compliance with his bail conditions.

If the Magistrate is of the opinion that the person accused of an offence is at risk of absconding,
sureties may be imposed. Surety may be personal surety or a third person surety and should be
according to the paying capacity of the accused person. In determining the conditions of bail, the
Court should take into account the financial status of the person accused of an offence, and shall
ensure that the conditions of bail are not excessive or unduly onerous. Sureties should not be
rejected solely on the ground that they are not locally situated. To alleviate concerns regarding the
availability of the surety in case of forfeiture, courts should be allowed to direct, that the surety
papers be deposited with the court which has jurisdiction where the surety is located, and that such
court can proceed against the surety in case of forfeiture.19

Some conditions that may be imposed are:

• abide by specified restrictions on personal associations, place of abode, or travel;

• avoid all contact with an alleged victim of the crime and with a potential witness who may testify
concerning the offence;

• report on a regular basis to a designated law enforcement agency;

• refrain from possessing and surrender if in possession of any firearm, ammunition, destructive
device, or other dangerous weapon;

19
Bail under the Judicial Article by John.S. Boyle, available at
https://ndl.iitkgp.ac.in/document/V3drbjNZR296bURkOURzZVFld1NzSkE5bDgxTWJoeDdGWmhJWkFNS1FQY
z0#0

8|Page
• undergo available medical, psychological, or psychiatric treatment, and remain in a specified
institution if required for that purpose;

• satisfy any other condition that is reasonably necessary to secure the appearance of the person
as required, and to ensure the safety of any other person and the community;

surrender of passport or travel document in the possession of the accused, in case, the accused does
not have one, he may be prohibited from obtaining one;

• accused may be mandated to seek or maintain employment or enter into any educational
programme;

• refrain from attending such premises or any other place as the court may specify;

• abides by any restriction on his travel or movement; or abides by specific restrictions on his
speech and expression.

In evaluating the validity of conditions or restrictions of pretrial detention that implicates only the
protection against deprivation of liberty without due process of law, the proper inquiry in cases
must be made, whether those conditions or restrictions amount to punishment for the detainee 20.
Ensuring the maintenance of law and order, peace and public safety are valid objectives of the
State that may at times justify imposition of restrictions on freedom granted to the accused person
enlarged on bail.

ISSUE 2: Need for modification of sections 436 and 436A of Cr.P.C.: The language of the
section must be made unambiguous in communicating that the bail under this section is a matter
of right, which cannot be trounced by imposing or demanding unreasonable or excessive sureties.
Since the code does not provide for any standards to decide sureties other than the surety mentioned
in s. 440 of the Cr.P.C which states that the sureties would be prescribed with due regard to the
circumstances of the case not being excessive. Sections 436 and 437 of the Cr.P.C must be read in
consonance with this provision.

Condoning delays either by the judiciary or the investigating authorities cannot be at the expense
of the rights of the person accused of an offence. The delays and the difficulties that judges face

20
Bell v. Wolfish, 441 U.S. 520 (1979).

9|Page
currently were some reasons for which the law was amended, yet the high bar set in the section
defeats the purpose. Recently, the Supreme Court in Bhim Singh21 while considering the scope of
s. 436A of Cr.P.C, directed judicial officers to identify undertrial prisoners who have completed
half the term, they may be sentenced with, if found guilty. It was further directed that an
appropriate order may be passed in jail “itself, for release of such under-trial prisoners who fulfil
the requirement of s. 436A of Cr.P.C, for their release immediately” 22. Directions in Bhim
Singh281 may be implemented by amending the section to make the criteria for release of
undertrials. For offences up to seven years under trial who have completed one third period of the
maximum sentence imposed may be released; while for offences with punishment more than seven
years, under trials who have completed one half period of the maximum sentence imposed may be
released. Further provision be made to have the undergone part, considered with remissions. The
Supreme Court has observed in many cases that putting under trials in prison for long with
hardened criminals may influence or induce criminal tendencies in the person accused of an
offence.

CONCLUSION

The primary objective of the provisions providing for the bail should not be to detain and arrest an
accused person but to ensure his appearance at the time of trial and to make sure if the accused is
held guilty, he is available to suffer the consequence of the offence as such committed, in terms of
punishment in accordance with the law. It would be unjust and unfair to deprive the alleged
accused of his liberty during the pendency of the criminal proceeding against him. The release on
bail upon appropriate considerations and imposition of reasonable conditions is significant not
only to the accused, and his family members who might be dependent upon him but also the society
large, hence the Court is duty bound to contemplate the facts and circumstances prevailing in the
matter and strike a balance between considerations and imposition of the reasonable conditions
and then pass the appropriate order.

The importance of bail provisions and their underutilization has been reiterated on many occasions.
No person should be made to suffer the deprivations of incarceration before s/he has been proven

21
Bhim Singh v. Union of India, (2015) 13 S.C.C. 603.
22
Ms. Divya Iyer v. Tihar Jail
(http://www.rti.india.gov.in/cic_decisions/CIC_SA_A_2015_000375_M_161809.pdf).

10 | P a g e
guilty in the eyes of law. By depriving them of their right to liberty through unnecessary detention,
the existing system “punishes” the accused in violation of the basic principle of criminal
jurisprudence that every person shall be presumed innocent till proven guilty. To ensure justice for
under-trial prisoners, it is essential to effectively implement the existing provisions of the Cr.P.C.
All the agencies of the criminal justice system including the police, the judiciary, the prosecution,
the defence lawyers and the prison department must adopt a concerted and a well-coordinated
approach to ameliorate the plight of the ‘forgotten souls’ i.e. under-trial prisoners, who languish
in prisons unnecessarily.

Further scope of research can be “There should be consistency between the term of imprisonment
for offences and their classification as Bailable or Non-Bailable”.

11 | P a g e