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INTRODUCTION TO CRPC

INTRODUCTION

The Code of Criminal Procedure, 1973 is the procedural law providing the machinery for
punishment of offenders under substantive criminal law. The code contains elaborate details
about the procedure to be followed in every investigation, inquiry and trial, for every offence
under the IPC or any other law. Earlier there was no uniform law of criminal procedure until
Criminal Procedure Code of 1882; it was replaced by the Code of 1898. The act was
amended in 1923 and 1955. This code was repealed by the Code of 1973 enacted by
Parliament on 25th January, 1974 and made effective from 1-04-1974 so as to consolidate
and amend the law relating to Criminal Procedure. Its object is to provide a machinery for
determining the guilt of and imposing punishment on offenders under the substantive
criminal law, for example, the Indian Penal Code (I.P.C.). The two Codes are to be read
together. The Code also provides machinery for punishment of offences under other Acts.

The code is complete code with respect to matters provided under it, thus the code must be
deemed to be exhaustive. The Supreme Court has said “It is the procedure that spells much
of the difference between the rule of law and the rule of whim and caprice”. (Iqbal v. State of
Maharashtra (1975) 3 SCC 140)

IMPORTANT DEFINITIONS under the CODE

Offence

Section 2(n) of the CrPC defines the word “offence” to mean 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. However, the term
is more elaborately defined under Section 40 of the IPC which states that “offence” denotes a
thing made punishable by the Code. Section 39 of the CrPC. imposes a duty on every person
who is aware of the commission of or of intention to commit an offence, to give information
of certain offences which are specified in Clause (i) to (xii) of sub-Section (1). An offence is
what the legislature classes as punishable. Mens Rea a bad intention or guilt is an essential
ingredient in every offence.
Bailable Offence and Non-bailable Offence

A “bailable offence” means an offence which is shown as bailable in the First Schedule or
which is made bailable by any other law for the time being in force. “Non-bailable” offence
means any other offence. [Section 2(a)]

Cognizable Offence and Non-cognizable Offence

“Cognizable offence” means an offence for which, and “cognizable case” means a case in
which, a police officer may, in accordance with the First Schedule or under any other law for
the time being in force, arrest without warrant.

“Non-cognizable offence” means an offence for which, and “non-cognizable” case means a
case in which, a police officer has no authority to arrest without warrant. Thus, a non-
cognizable offence needs special authority to arrest by the police officer. [Section 2(c) and
2(l)]

In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or
more (not ordinarily all) of the offences are cognizable.

(Note: It may be observed from the First Schedule that non-cognizable offences are usually
bailable while cognizable offences are generally non-bailable).

Complaint

“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 it does not include a police report. [Section 2(d)]

However, a report made by the police officer in a case which discloses after investigation, the
commission of a non-cognizable offence shall be deemed to be a complaint, and the police
officer making the report as a complainant. In general a complaint into an offence can be
filed by any person except in cases of offences relating to marriage, defamation and offences
mentioned under Sections 195 and 197. A complaint in a criminal case is what a plaint is in a
civil case. The requisites of a complaint are:

• an oral or a written allegation;

• some person known or unknown has committed an offence;
• it must be made to a magistrate; and
 • it must be made with the object that he should take action.

There is no particular format of a complaint. A petition addressed to the Magistrate

containing an allegation that an offence has been committed, and ending with a prayer that
the culprit be suitably dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC
705)

Police report is expressly excluded from the definition of complaint but the explanation to
Section 2(d) makes it clear that such report shall be deemed to be a complaint where after
investigation it discloses commission of a non-cognizable offence. Police report means a
report forwarded by a police officer to a Magistrate under Subsection (2) of Section 173.

Bail

It means the release of the accused from the custody of the officers of law and entrusting him
to the private custody of persons who are sureties to produce the accused to answer the
charge at the stipulated time or date.

An “anticipatory bail” is granted by the High Court or a Court of Session, to a person who
apprehends arrest for having committed a non-bailable offence, but has not yet been arrested
(Section 438). An opportunity of hearing must be given to the opposite party before granting
anticipatory bail (State of Assam v. R.K. Krishna Kumar AIR 1998 SC 144).

Inquiry

It means every inquiry other than a trial, conducted under this Code by a Magistrate or
Court. [Section 2(g)]. It carries the following three features:

• the inquiry is different from a trial in criminal matters;

• inquiry is wider than trial;
• it stops when trial begins.

Investigation

It includes all the proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in
this behalf. [Section 2(h)]
The three terms – ‘investigation’, ‘inquiry’ and ‘trial’ denote three different stages of a
criminal case. The first stage is reached when a police officer either on his own or under
orders of a Magistrate investigates into a case (Section 202). If he finds that no offence has
been committed, he submits his report to the Magistrate who drops the proceedings. But if he
is of different opinion, he sends that case to a Magistrate and then begins the second stage – a
trial or an inquiry. The Magistrate may deal with the case himself and either convict the
accused or discharge or acquit him. In serious offences the trial is before the Session’s Court,
which may either discharge or convict or acquit the accused. (Chapter XVIII)

Judicial Proceeding

It includes any proceeding in the course of which evidence is or may be legally taken on oath.
The term judicial proceeding includes inquiry and trial but not investigation. [Section 2(i)]

Pleader

With reference to any proceedings in any Court, it means a person authorised by or under any
law for the time being in force, to practise in such Court and includes any other person
appointed with the permission of the Court to act in such proceeding. [Section 2(q)] It is an
inclusive definition and a non-legal person appointed with the permission of the Court will
also be included.

Public Prosecutor

A “public prosecutor” means any person appointed under Section 24, and includes any
person acting under the directions of a Public Prosecutor. [Section 2(u)]

Public prosecutor, though an executive officer is, in a larger sense, also an officer of the
Court and he is bound to assist the Court with his fair views and fair exercise of his functions.

Summons and Warrant Cases

“Summons case” means a case relating to an offence and not being a warrant case. [Section
2(w)] A “Warrant case” means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. [Section 2(x)]

Those cases which are punishable with imprisonment for two years or less are summons
cases, the rest are all warrant cases. Thus, the division is based on punishment which can be
awarded. The procedure for the trial of summons cases is provided by Chapter XX and for
warrant cases by Chapter XIX.

CONSTITUTION & CRIMINAL COURTS HIERACHY

Introduction

Administration of justice is the most important function of the state. For this purpose our
constitution has set up a hierarchy of courts. The Supreme Court is the apex body, followed
by 24 High Courts which have been created by the constitution of India, and their jurisdiction
and powers are well defined in the constitution itself.

Article 124 of Indian constitution says that there shall be a Supreme Court of India its
constitutional powers and jurisdictions have been defined from article 124-147. The Supreme
Court is meant to be the highest court of appeal which takes up appeals against the verdict of
High Courts. There are 24 High Courts in the country which regulates the working of the
Sessions court. The Constitution, by Article 227, provides that every High Court shall so
exercise superintendence over all courts and tribunals. It further provides that the High Court
shall exercise its powers judiciously in order ensure proper working of judicial mechanism.

CLASSES OF CRIMINAL COURTS

Apart from the Supreme Court and High Courts, the following criminal courts have been
described under section 6 of Criminal Procedure Code, 1973:-

1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area Metropolitan
Magistrates
3. Judicial Magistrate of second class; and
4. Executive Magistrates

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

Chapter III of CrPC deals with power of Courts. One of such power is to try offences.
Offences are divided into two categories:

1. those under the Indian Penal Code; and

2. those under any other law.

According to Section 26, any offence under the Indian Penal Code, 1860 may be tried by the
High Court or the Court of Session or any other Court by which such offence is shown in the
First Schedule to be triable, whereas any offence under any other law shall be tried by the
Court mentioned in that law and if not mentioned, it may be tried by the High Court or any
other Court by which such offence is shown in the First Schedule to be triable. This Section
is a general Section and is subject to the other provisions of the Code.

Power of the Court to pass sentences

Sentences which may be passed by the criminal have been mentioned under section 28 & 29
of the criminal procedure code.

1. Sentences which High Courts and Sessions Judges may pass

According to Section 28, a High Court may pass any sentence authorised by law. A Sessions
Judge or Additional Sessions Judge may pass any sentence authorised by law, but any
sentence of death passed by any such judge shall be subject to confirmation by the High
Court.

An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of
death or of imprisonment for life or of imprisonment for a term exceeding ten years. Thus,
Section 26 of the Code enumerates the types of Courts in which different offences can be
tried and then under Section 28, it spells out the limits of sentences which such Courts are
authorised to pass.

2. Sentences which Magistrates may pass

Section 29 lays down the quantum of sentence which different categories of Magistrates are
empowered to impose. The powers of individual categories of Magistrates to pass the
sentence are as under:
 • The Court of a Chief Judicial Magistrate may pass any sentence authorised by law
except a sentence of death or of imprisonment for life or of imprisonment for a term
exceeding seven years.
• A Magistrate of the first class may pass a sentence of imprisonment for a term not
exceeding three years or of a fine not exceeding five thousand rupees, or of both.
• A Magistrate of the second class may pass a sentence of imprisonment for a term not
exceeding one year, or of fine not exceeding one thousand rupees, or of both.

A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate
of the First class.

3. Sentence of imprisonment in default of fine

Where a fine is imposed on an accused and it is not paid, the law provides that he can be
imprisoned for a term in addition to a substantive imprisonment awarded to him, if any.
Section 30 defines the limits of Magistrate’s powers to award imprisonment in default of
payment of fine.

It provides that the Court of a Magistrate may award such term of imprisonment in default of
payment of fine as is authorised by law provided the that the term:

• is not in excess of the powers of the Magistrate under Section 29; and
• where imprisonment has been awarded as part of the substantive sentence, it should
not exceed 1/4th of the term of imprisonment which the Magistrate is competent to
inflict as punishment for the offence otherwise than as imprisonment in default of
payment of the fine.
4. Sentences in cases of conviction of several offences at one trial

Section 31 relates to the quantum of punishment which the Court is authorised to impose
where the accused is convicted of two or more offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to
the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such
offences, to the several punishments prescribed therefor which such Court is competent to
inflict; such punishments when consisting of imprisonment to commence the one after the
expiration of the other in such order as the Court may direct, unless the Court directs that
such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only
of the aggregate punishment for the several offences being in excess of the punishment which
it is competent to inflict on conviction of a single offence, to send the offender for trial before
a higher Court: Provided that-

• in no case shall such person be sentenced to imprisonment for a longer period than
fourteen years;
• the aggregate punishment shall not exceed twice the amount of punishment which the
Court is competent to inflict on a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive
sentences passed against him under this section shall be deemed to be a single sentence.

DIFFERENCE BETWEEN TRIAL PROCEDURES OF

SUMMON AND WARRANT CASES

INTRODUCTION

A police report is defined in this Code and according to these provisions ‘Police report means
a report forwarded by a police officer to a Magistrate under sec. 173 of the code. When in
any warrant case instituted on a police report the accused appears or is brought before a
Magistrate at the commencement of trial. A magistrate shall satisfy himself that he has
complied with the provision of the code.

There are two categories in which the criminal cases can be classified on the provisions laid down
in the code:-

1. Summon Case:- Definition of summon case is given in 2(x)means, Summon case

means a case relating to an offence not being a warrant case.
2. Warrant Case: Means a case relating to an offence punishable by death,
imprisonment for life or imprisonment for a term exceeding two years.

The criteria of summons case and warrant case determine the duration of punishment in any
offence is punishable with fine of Rs.50/- then such matter is summon case, a case of Public
Prosecutor v. Hindustan Motors, Andhra Pradesh-1970.

The issue of summon or warrant in any case does not change the nature of the case,
supposing warrant is issued in a summon case it does not make the case a warrant case, in
case of Padamnath v. Ahmad Dobi-1970.
Procedure of trial of Warrant Case:- lays down the procedure for a
warrant case:-

A.Cases must be instituted upon police report:-Sec.238 of the code lays down the
procedure of trial of warrant cases instituted upon police report and according to it procedure
of trial is as under :-

1. Copy of the police report and other documents to be provided to the accused on the
institution of any warrant case when the accused appears or brought before a
magistrate at the commencement of the trial.
2. Discharge of accused on groundless charges: – On receiving the police report &
other documents and providing of the accused the magistrate shall consider each
report. He shall be provided a reasonable opportunity of hearing to accused and
prosecution (it is commonly called charge argument); the magistrate shall examine the
accused if necessary. If the magistrate finds that the charge against the accused is
groundless he shall discharge the accused under sec.239. He will also check the prima
facie of the case. Case of State v. Sitaram Dayaram-1959.
3. The framing of charge:-If the magistrate is of the opinion that there is a ground for
presuming that the accused has committed an offence and is competent to try such
offence which can adequately punish the accused in his opinion. Then the charge shall
be framed against the accused in writing and trial will start. Case of Col.S.Kashyap
v. State of Raj.1971.
4. Conviction of plea of guilty:-if the accused pleads guilty the magistrate shall record
the plea and may in his discretion convict him.
5. Evidence for the prosecution: – If the accused refuses to plead guilty and claims to
be tried, the magistrate shall fix a date for the examination of the witnesses, u/s 242,
and case State v/s Suwa-1962.
6. Evidence for defence:- u/s 243on completion of prosecution witnesses, defence
witnesses produces by the accused, the expenses on compelling the attendance of the
witnesses shall be borne by the accused.

B. Cases instituted otherwise than upon police report:- The procedure of trial
for summons cases is less brief in nature.

1. There is no need of framing of formal charge in summons cases.

2. Accused can be convicted or acquitted.
3. Summons case cannot be reopened after completed once.
4. The complainant can withdraw his complaint in a summon case. Its effect would be
the acquittal of accused.
5. In summon cases summons are generally issued to the accused.
6. Accused is not required to be heard on the question of sentence in summon case.
 7. In summon cases there is no need for arguments generally before substance
prosecution.
8. In summon case if the accused pleads guilty the Magistrate shall record the plea and
may convict him on that basis under sec.252.
9. In summons case if the magistrate does not convict the accused on his plea of guilty
he shall proceed to hear the prosecution and take all evidence. He will also hear the
accused and take all evidence produced by the accused under sec. 254(1).
10. u/s 257, on the satisfaction of the magistrate he may permit the complainant to
withdraw his complain thereupon the accused shall be acquitted.
11. In a summon case no provisions authorizing the magistrate to permit the cross-
examination of any prosecution witnesses to be deferred or recall of any witness for
further examination.
12. In summon case when summon has been issued to the complainant and he fails to
appear on fix date the accused may acquit unless for some reasons he thinks to
adjourn the hearing of the case to some other day u/s 257.

SUMMONS & WARRANT CASES

SUMMONS AND WARRANTS

The general processes to compel appearance are:

(1) Summons (Section 61)

(2) Warrants (Section 70)

SUMMONS

A summon is issued either for appearance or for producing a document or thing which may
be issued to an accused person or witness. Every summons issued by the Court shall be in
writing, in duplicate, signed by the Presiding Officer of such Court or by such officer as is
authorised by the High Court and shall bear the seal of the Court (Section 61). The summons
should be clear and specific in its terms as to the title of the Court, the place at which, the day
and time of the day when, the attendance of the person summoned is required.

Service of summons

The summons shall be served by a police officer or by an officer of the Court or other public
servant (Section 62).
In case the service cannot be effected by the exercise of due diligence, the serving officer can
perform substituted service by affixing one of the duplicates of the summons to some
conspicuous part of the house or homestead in which person summoned ordinarily resides,
and thereupon the Court, after making such enquiries as it thinks fit may either declare that
the summons has been duly served or order fresh service, as it considers proper (Section 65).

The service of summons on corporate bodies, and societies

The service of summons on a corporation may be effected by serving it on the secretary, local
manager or other principal officer of the corporation, or by letter sent by registered post,
addressed to the Chief Officer of the corporation in India, in which case the service shall be
deemed to have been effected when the letter would arrive in ordinary course of post.

The word “corporation” in this Section means an incorporated company or other body
corporate and includes a society registered under the Societies Registration Act, 1860. Thus,
the societies may not be formally incorporated, yet they fall within the purview of this
section. (Section 63)

When personal service of summons cannot be affected under Section 62, the extended service
under Section 64 can be secured by leaving one of the duplicates with some adult male
member of his family residing with him who may also be asked to sign the receipt for that. A
servant is not a member of the family within the meaning of Section 64.

In the case of a Government Servant, the duplicate copy of the summons shall be sent to the
head of the office by the Court and such head shall thereupon cause the summons to be
served in the manner provided by Section 62 and shall return it to the Court under his
signature with the endorsement required by Section 62. Such signature shall be evidence of
due service. (Section 66)

WARRANT OF ARREST

Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the
presiding officer of such Court, and shall bear the seal of the Court. Such warrant shall
remain in force until it is cancelled by the Court which issued it, or until it is executed.
(Section 70) The form of warrant of arrest is Form No. 2 of the Second Schedule. The
requisites of a warrant are as follows:

1. It must be in writing.
 2. It must bear the name and designation of the person who is to execute it;
3. It must give full name and description of the person to be arrested;
4. It must state the offence charged;
5. It must be signed by the presiding officer; and
6. It must be sealed.

Such warrant is only for protection of a person before the concerned Court and not before the
police officer.

Under Section 76 the police officer or other person executing the warrant of arrest shall
(subject to the provisions of Section 71 as to security) bring the person arrested before the
Court without unnecessary delay provided that such delay shall not in any case exceed 24
hours exclusive of the time necessary for the journey from the place of arrest to the
Magistrate’s Court.

PROCLAMATION AND ATTACHMENT

Where a warrant remains unexecuted, the Code provides for two remedies:

(1) issuing a proclamation (Section 82); and

(2) attachment and sale of property (Section 83).

If a Court has reason to believe that any person against whom a warrant has been issued by it
has absconded or is concealing himself so that such warrant cannot be executed, the Court
may publish a written proclamation requiring him to appear at a specified place and at a
specified time not less than 30 days from the date of publishing such proclamation. (Section
82)

While issuing proclamation, the Magistrate must record to his satisfaction that the accused
has absconded or is concealing himself. The object of attaching property is not to punish him
but to compel his appearance.

SUMMONS TO PRODUCE

Sometimes it is necessary that a person should produce a document or other thing which may
be in his possession or power for the purposes of any investigation or inquiry under this
Code. This can be compelled to be produced by issuing summons (Sections 91 and 92) or a
warrant (Sections 93 to 98).

SEARCH WARRANT

According to Section 93, a search warrant can be issued only in the following cases:

(1) where the Court has reason to believe that a person summoned to produce any document
or other thing will not produce it;

(2) where such document or thing is not known to the Court to be in the possession of any
person; or

(3) where a general inspection or search is necesary. However, a search warrant may be
general or restricted in its scope as to any place or part thereof.

But such warrant shall not be issued for searching a document, parcel or other thing in the
custody of the postal or telegraph authority, by a magistrate other than a District Magistrate
or Chief Judicial Magistrate, nor would such warrant be issued so as to affect Sections 123
and 124 of the Indian Evidence Act, 1872 or the Bankers’ Book Evidence Act, 1891.

In terms of Section 97 any District Magistrate, Sub-Divisional Magistrate or Magistrate of

the first class who has reasons to believe that any person is confined under such
circumstances that the confinement amounts to an offence, he may issue a search warrant for
the search of the person so confined. The person if found shall be immediately produced
before the Magistrate for making such orders as in the circumstances of the case he thinks
proper.

FUNCTIONARIES UNDER CRPC

In this section, we will discuss the important functionaries under the Criminal Procedure
Code 1973. They are – (a) Police, (b) Prosecutor, (c) Defence Counsel and (d) Prison
Authorities.
Important Functionaries in details:-

1. Police
The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say
anything about the constitution of Police. It assumes the existence of police and devolves
various powers and responsibilities on to it.

Functions

As per The Police Act, 1861, the police force is an instrument for the prevention and
detection of crime.

Organization

Every state establishes its own police force which is formally enrolled. The force consists of
such number of officers and men and is constituted in such manner as the state govt. may
decide from time to time. The overall administration of police in the entire state is done by
Director General of Police. The administration of police in a district is done by District
Superintendent of Police under the general control and direction of District Magistrate who is
usually the Collector of the district. Every police officer appointed to the police force, other
than Inspector General of Police and District Superintendent of Police, receives a certificate
in the prescribed form by virtue of which he is vested with the powers, functions and
privileges of a police officer.

The Police Act, 1888 also empowers the Central Govt to create special police districts and to
extend the jurisdiction of police of any state to that district. The Police Act 1949, creates a
police force for Union Territories.

Powers
1. The Cr P C confers specific powers on the members of police force who are enrolled
as police officers. These powers include power to make an arrest, search, and
investigate. Wider powers have been given to police officers in charge of a police
station. As per Section 2(s), police station means any post or place that is generally or
specially designated by the state govt as a police station. Further, as per Section
2(o)officer in charge of a police station includes the officer who is present at the
police station and is next in rank to the police officer in charge, if he is on leave or is
absent. This only increases the importance of the police officer in charge of a police
station.
2. Section 36 of CrPC specifies that officers of police who are superior in rank to police
officer in charge of a police station can exercise all the powers of that police officer.
In the case of State of Bihar v. J A C Saldanha SCC 1980, SC held that if the
Inspector General (Vigilance) is an officer superior to the officer in charge of the
police station he can exercise the powers of that officer throughout the territory to
 which the superior officer has been appointed, which, in this case is the entire
territory of Bihar.
2. Prosecutor

A crime is a wrong not only against an individual but is also against the society. It is because
of this reason that the state, which represents the collective of people, participates in the
criminal trial of an accused, specially if the crime is of cognizable nature. Public Prosecutor
or Assistant Public Prosecutor is the state counsel for such trials. As per section 2(u), Public
Prosecutor means any person appointed under Section 24 and includes any person acting
under the directions of the public prosecutor.

Section 24 of CrPC specifies the rules for appointment of Public Prosecutor. A person shall
be eligible to be appointed in High Court as Public Prosecutor if he has been in practice as an
advocate for not less than seven years. The appointment can be made only after consultation
with the High Court. Further, the central govt. can appoint a Public Prosecutor for conducting
in a high court any prosecution, appeal, or another proceeding on behalf of the Central Govt.

Assistant Public Prosecutor is appointed under Section 25. It authorizes the State Govt. to
appoint one or more APPs for every district for conducting any case in Court of Magistrates.
No police officer is allowed to be appointed as APP.

Duties

The duty of a public prosecutor mainly consists in conducting the prosecution on behalf of
the state. His goal is not merely to produce a conviction but the help the court arrive at a just
decision. He also appears as the state counsel in criminal appeals, revisions, and such other
matters in the Session Courts and High Court. It is important to note that he does not appear
on behalf of the accused.

Powers
1. As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the
authority to appear and plead before any court in any case entrusted to him.
2. As per Section 321, he can withdraw from the prosecution against any person with
the consent of the court.

According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session
Courts and the High Courts and Assistant Public Prosecutors are appointed for conducting the
prosecution in Magistrates’ Courts. As per prevailing practice, in respect of cases initiated on
police reports, the prosecution is conducted by the APP and in cases initiated on a private
complaint, the prosecution is either conducted by the complainant himself or by his duly
authorized counsel.

3. Defense Counsel

As per Section 303, any person accused of an offence before a Criminal Court has a right to
be defended by a pleader of his choice. Such pleaders are not in regular employment of the
state and a paid remuneration by the accused person. Since, a qualified legal practitioner on
behalf of the accused is essential for ensuring a fair trial, Section 304 provides that if the
accused does not have means to hire a pleader, the court shall assign a pleader for him at
state’s expense.

At present there are several schemes through which an indigent accused can get free legal aid
such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board, and
Supreme Court Senior Advocates Fee Legal Aid Society. The Legal Services Authorities Act,
1987 also provides free legal aid for the needy.

4. Prison Authorities

CrPC presumes the existence of Prisons and Prison authorities. The code empowers
magistrates and judges under certain circumstances to order the detention of under-trial
prisoners in jail during the pendency of proceedings. The code also empowers the courts to
impose sentences of imprisonment on convicted persons and to send them to prison
authorities. However, the code does not make specific provisions for creation and
administration of prison authorities. These matters are dealt with in separate acts such as The
Prisons Act 1894, The Prisoners Act, 1900, and the Probation of Offenders Act 1958.

ARREST

Meaning

Fair trial requires that the trial proceedings are conducted in the presence of the accused and
that he is given a fair chance to defend himself. Consequently, the provisions regarding the
issue of summons, or of a warrant of arrest or arrest without warrant are all aimed at ensuring
the presence of accused at his trial without unreasonably depriving him of his liberty.
Arrest means the apprehension of a person by legal authority resulting in deprivation of his
liberty. The Code contemplates two types of arrests:

1. Arrest made in pursuance of a warrant issued by a Magistrate; and

2. Arrest made without such warrant but made in accordance with some legal provision
permitting such arrest.
Cases in which arrest can be made without a warrant

Section 41 enumerates different categories of cases in which a police officer may arrest a
person without an order from a Magistrate and without a warrant. These include:

(a) who has been concerned in any cognizable offence or against whom a reasonable
complaint has been made, or credible information has been received, or a reasonable
suspicion exists, of his having been so concerned; or

(b) who has in his possession without lawful excuse, the burden of proving which excuse
shall lie on such person, any implement of housebreaking; or

(c) who has been proclaimed as an offender either under this Code or by order of the State
Government; or

(d) in whose possession anything is found which may reasonably be suspected to be stolen
property and who may reasonably be suspected of having committed an offence with
reference to such thing; or

(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or
attempts to escape, from lawful custody; or

(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the
Union; or

(g) who has been concerned in, or against whom a reasonable complaint has been made, or
credible information has been received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India which, if committed in India,
would have been punishable as an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained in custody in India; or

(h) who being a released convict, commits a breach of any rule, relating to notification of
residence or change of or absence from residence; or
(i) for whose arrest any requisition, whether written or oral, has been received from another
police officer, provided that the requisition specifies the person to be arrested and the offence
or other causes for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the requisition.
(Section 41)

Arrest on refusal to give name and residence

If any person who is accused of committing a non-cognizable offence does not give his name,
residence or gives a name and residence which the police officer feels to be false, he may be
taken into custody. However, such person cannot be detained beyond 24 hours if his true
name and address cannot be ascertained or fails to execute a bond or furnish sufficient
sureties. In that event, he shall be forwarded to the nearest Magistrate having jurisdiction.
(Section 42)

Arrest by a private person

A private person may arrest or cause to be arrested any person who in his presence commits a
non-bailable and cognizable offence or who is a proclaimed offender (Section 43). This right
of arrest arises under the Common Law which applies to India (Ramaswamy Aiyar (1921)
44 Mad. 913).

Arrest by Magistrate

Under Section 44 clause (1), the Magistrate has been given the power to arrest a person who
has committed an offence in his presence and also commit him to custody. Under in clause 2,
the Magistrate has the power to arrest a person for which he is competent and has also been
authorized to issue a warrant. However, Section 45 protects members of Armed Forces from
the arrest where they do something in the discharge of their official duties. They could be
arrested only after obtaining the consent of the Central Government.

Arrest how made

Section 46 sets out the manner in which an arrest is to be made. The Section authorizes a
police officer or other person making an arrest to actually touch or confine the body of the
person to be arrested and such police officer or other people may use all necessary means to
effect the arrest if there is forcible resistance. The Section does not give a right to cause the
death of a person who is not accused of an offence punishable with death sentence or life
imprisonment.

The word “arrest” when used in its ordinary and natural sense means the apprehension or
restraint or the deprivation of one’s personal liberty to go where he pleases. The word
“arrest” consists of taking into custody of another person under authority empowered by law,
for the purpose of holding or detaining him to answer a criminal charge and preventing the
commission of a criminal offence.

Other important provisions

• Section 47 is an enabling provision and is to be used by the police officer with regard
to exigencies of a situation.
• Section 48 authorizes a police officer to pursue the offender into any place in India
for the purpose of effecting his arrest without warrant. Ordinarily, a police officer is
not at liberty to go outside India and to arrest an offender without a warrant, but if he
can arrest an offender without warrant who escapes into any place in India, he can be
pursued and arrested by him without a warrant. (See also Section 60)
• Persons arrested are to be taken before the Magistrate or officer-in-charge of a police
station without unnecessary delay and subject to the provisions relating to
bail, Article 22(2) of the Constitution of India also provides for producing the
arrested person before the Magistrate within 24 hours.
• When a person is arrested under a warrant, Section 76 becomes applicable, and when
he is arrested without a warrant, he can be kept in custody for a period not exceeding
24 hours, and before the expiry of that period he is to be produced before the nearest
Magistrate, who can under Section 167 order his detention for a term not exceeding
15 days, or he can be taken to a Magistrate, under whose jurisdiction he is to be tried,
and such Magistrate can remand him to custody for a term which may exceed 15 days
but not more than 60 days.
• Officers-in-charge of the concerned police stations shall report to the Magistrate the
cases of all persons arrested without warrant, within the limits of their respective
police stations whether such persons have been admitted to bail or otherwise. (Section
58)

A person arrested by a police officer shall be discharged only on his own bond or on bail or
under the special order of a Magistrate, (Section 59). If a person in lawful custody escapes or
is rescued, the person, from whose custody he escaped or was rescued, is empowered to
pursue and arrest him in any place in India and although the person making such arrest is not
acting under a warrant and is not a police officer having authority to arrest, nevertheless, the
provisions of Section 47 are applicable which stipulates provisions relating to search of a
place entered by the person sought to be arrested.
 BAIL

Object and meaning of bail

The object of arrest and detention of the accused person is primarily to secure his appearance
at the time of trial and to ensure that in case he is found guilty he is available to receive the
sentence. If his presence at the trial could be reasonably ensured otherwise than by his arrest
and detention, it would be unjust and unfair to deprive the accused of his liberty during the
pendency of the criminal proceedings against him. The provisions regarding the release of the
accused person on bail are aimed at ensuring the presence of accused at his trial but without
unreasonably and unjustifiably interfering with his liberty. There is no definition of bail in
the Code, although the terms “bailable offence” and “non-bailable offence” have been
defined. (sec. 2a)

“Bail” has been defined in the Law Lexicon as security for the appearance of the accused
person on giving which he is released pending trial or investigation. Govind Prasad v. State
of West Bengal, 1975 CriLJ 1249

Provisions of Bail under CrPC

Bail in case of bailable offence

The Code of Criminal Procedure, 1973 contains elaborate provisions relating to bails. Section
436 provides for the release on bail of a person accused of a bailable offense.

436. In what cases bail to be taken.

(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, 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 or section 446A 1.
(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 bond to pay the
penalty thereof under section 446.
 IN HUSSAINARA V. HOME SECRETARY, 1980 1 SCC
81, BHAGWATI, J. OBSERVED THAT ONE OF THE
REASONS WHY OUR LEGAL AND JUDICIAL SYSTEM
CONTINUALLY DENIES JUSTICE TO THE POOR BY
KEEPING THEM FOR LONG YEARS IN PRE-TRIAL
DETENTION IN OUR HIGHLY UNSATISFACTORY
BAIL SYSTEM. IT SUFFERS FROM PROPERTY-
ORIENTED APPROACH WHICH PROCEEDS ON THE
ERRONEOUS ASSUMPTION THAT RISE OF
MONETARY LOSS IS ONLY DETERRED AGAINST
FLEEING FROM JUSTICE.
However, by Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section 436 was
amended to make a mandatory provision that if the arrested person is accused of a bailable
offense is an indigent and cannot furnish surety, the courts shall release him on his execution
of a bond without sureties. Legislature by Criminal Procedure (Amendment) Act,
2005 insertedSection 436A which lays down the maximum period for which an under trial
prisoner can be detained.

Bail in case of Non-bailable offence

Provisions, as to bail in case of non-bailable offence, is laid down in Section 437 of the
code. This section gives the Court or a police officer power to release an accused on bail in a
non-bailable case, unless there appear reasonable grounds that the accused has been guilty of
an offence punishable with death or with imprisonment for life. But (1) a person under the
age of sixteen years (2) a woman; or (3) a sick or infirm person may be released on bail even
if the offence charged is punishable with death or imprisonment for life. Where a person is
charged with a non-bailable offence, but it appears in the course of the trial that he is not
guilty of such offence, he can be immediately released on bail pending further inquiry.

The same may be done after the conclusion of a trial and before judgment is pronounced, if
the person is believed not to be guilty of a nonbailable offence. As a safeguard, the section
provides for review of the order by the Court which has released the person on bail. The
power of the Magistrate under this section cannot be treated at par with the powers of the
Sessions Court and the High Court under Section 439.
Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to
be satisfied that the order to be passed is in the interest of justice. (Mazahar Ali v. State,
1982 CrLJ 1223, 1225 (J&K)

Anticipatory Bail: Section 438

Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest
under a non-bailable offence in India can apply for Anticipatory Bail under the provisions of
section 438 of The Code of Criminal Procedure, 1973. It is basically bail before arrest, a
person arrested cannot seek Anticipatory Bail, he would have to move for a regular bail. The
words anticipatory bail is neither found in section 438 nor in its marginal note. In fact,
anticipatory bail is a misnomer. When a court grants anticipatory bail, what it does is to make
an order that in the event of arrest, the person shall be released on bail.

The legislature in its wisdom incorporated this provision for grant of bail to a person
apprehending arrest is to prevent disgrace of being jailed or remaining in custody before he
can be released on bail. The old code of criminal procedure did not have any provision for the
same and the lawmakers realized that false and frivolous cases are filed against some people
and such persons have to necessarily be arrested before they could seek bail. Thus a
mechanism for preventing undue harassment and disgrace from arrest and detention was
devised.

In the landmark Gurubaksh Singh Sibbia case, the apex court opined that “It is
conceptualized on the idea of protecting personal liberty guaranteed under the Constitution of
India”. This said, it is a discretionary power and is not a matter of right. The court would use
the discretion according to the facts and circumstances of the case and under stipulated
guidelines.

Cancellation of Bail

Rejection of Bail is different from the cancellation of bail. (Aslam Desai v. State of
Maharashtra, 1992 AIR SCW 2621)

The Code of Criminal Procedure, 1973 contains two provisions for cancellation of Bail. The
first one is laid down in Section 437(5) and the other in section 439(2). According to Section
437(5) “any court which has released a person on bail under sub-section (1) or sub-section (2)
of Section 437, may if it considers it necessary so to direct such person to be arrested, and
committed to custody”. Thus under this section a Magistrate does not have an authority to
cancel bail granted by a police officer.

For cancellation of bail in such situation, power of the High Court or the Court of Session
under Section 439(2) will have to be invoked. Section 439(2) lays down that a High Court or
a Court of Session may direct that any person who has been released on bail under this
chapter be arrested and commit him to custody. Thus the power given to the High Court and
court of Session is very wide.

441. Bond of accused and sureties.

(1) Before any person is released on bail or released on his own bond, a bond for such sum
of money as the police officer or Court, as the case may be, thinks sufficient shall be
executed by such person, and, when he is released on bail, by one or more sufficient sureties
conditioned that such person shall attend at the time and place mentioned in the bond, and
shall continue so to attend until otherwise directed by the police officer or Court, as the case
may be.

(2) Where any condition is imposed for the release of any person on bail, the bond shall also
contain that condition.

(3) If the case so requires, the bond shall also bind the person released on bail to appear when
called upon at the High Court, Court of Session or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or sufficient, the Court may
accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of
the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry
to be made by a Magistrate subordinate to the Court, as to such sufficiency of fitness.

ARRESTED PERSON RIGHTS

The powers given to police to facilitate the making of arrest are not absolute. These powers
are subject to certain restraints. These restraints are the rights of an arrested person. Thus,
Rights of an arrested person are-

1. Right to know the grounds of Arrest

2. Information regarding the Right to be released on Bail
3. Right to be taken before a Magistrate without Delay
 4. Right to a Fair Trial
5. Right to Consult a Legal Practitioner
6. Right to be examined by a Medical Practitioner
7. Right to Silence
8. Right to know the grounds of Arrest
1.Right to know the grounds of Arrest

1.1) As per Section 50(1) of Cr.PC., every person who is being arrested by any police officer,
without any warrant, is entitled to know the full particulars of offence for which he is being
arrested, and that the police officer is duty bound to tell the accused such particulars and
cannot deny it.

1.2) As per Section 55 of Cr.PC., when any person is being arrested by any police officer,
who is deputed by a senior police officer, then such subordinate officer shall before making
such arrest, notify 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.
If this provision is not complied with, then the arrest would be rendered illegal.

1.3) if the person is being arrested under a warrant, then as per Section 75 of Cr.PC, any
person who is executing such warrant must notify the person to be arrested, the particulars of
such warrant, or even show such warrant if needed. If the substance of the warrant is not
notified, the arrest would be unlawful.

1.4) the Constitution of India also confers this right as one of the fundamental rights. Article
22(2) of the constitution provides that “no person who is arrested shall be detained in custody
without being informed as soon as may be, of the grounds for such arrest nor shall he be
denied the right to consult, and to be defended by a legal practitioner of his choice.”

2.Information regarding the Right to be released on Bail

Any person who is to be arrested without a warrant and is not accused of a non-bailable
offense has to be informed by the police officer that he is entitled to be released on bail on
payment of the surety amount. This helps persons who are arrested for bailable offenses and
are not aware of their right to be released on bail.

3.Right to be taken before a Magistrate without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant, the
person who is making such arrest has to bring the arrested person before a judicial officer
without any unnecessary delay. Further, the arrested person has to be confined in police
station only and nowhere else, before taking him to the Magistrate. These matters have been
provided in Cr.P.C. under sections 56 and 76 which are as given below:

Section 56 of Cr.PC. states that “Person arrested to be taken before Magistrate or officer in
charge of police station- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, take or send the
person arrested before a Magistrate having jurisdiction in the case, or before the officer in
charge of a police station”.

Section 76 of Cr.PC. states that “Person arrested to be brought before Court without delay-
The police officer or other person executing a warrant of arrest shall (subject to the
provisions of section 71 as to security) without unnecessary delay bring the person arrested
before the Court before which he is required by law to produce such person”.

Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed
24 hours in any case. While calculating the time period of 24 hours, the time necessary for
the journey is to be excluded. The same has been enumerated in the Constitution as a
Fundamental Right under Article 22(2). This right has been created with a view to
eliminating the possibility of police officials from extracting confessions or compelling a
person to give information.

If the police officials fail to produce an arrested person before a magistrate within 24 hours of
the arrest, the police officials shall be held guilty of wrongful detention.

4.Rights at Trial

4.1) Right to a Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law. The Code
of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial.
This provision is designed to ensure that convictions are not obtained in secret. In some
exceptional cases, the trial may be held in camera.

4.2) Right to a Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however, the SC in
the Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 has made it mandatory that the
investigation in the trial must be conducted “as expeditiously as possible.”

In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused
is arrested, the investigation for the trial has to be completed within the period of six months
or stopped on receiving an order from the Magistrate, unless the Magistrate receives and
accepts, with his reasons in writing, that there is cause to extend the investigation.

5.Right to Consult a Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own choice. This
has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which
cannot be denied in any case. Section 50(3) of the Code also lays down that the person
against whom proceedings are initiated has a right to be defended by a pleader of his choice.
This starts begins as soon as the person is arrested. The consultation with the lawyer may be
in the presence of police officer but not within his hearing.

6.Rights of Free Legal Aid

The Supreme Court in the case of in Khatri(II) v. State of Bihar (1981) 1 SCC 627 has
held that the state is under a constitutional obligation (implicit in Article 21) to provide free
legal aid to an indigent accused person as is implicit in Article 21 of the Constitution. This
right does not come into picture only at the time of trial but exists at the time when the
accused is produced the first time before the magistrate, as also when remanded from time to
time. The Supreme Court further states that failure on the part of the state to inform the
accused of this right will vitiate the whole process of trial. Therefore, a duty is imposed on all
magistrates and courts to inform the indigent accused of his right to get free legal aid.

7.Right to be examined by a Medical Practitioner

Section 54 of Cr.PC. enumerates this right. It states that: “Examination of arrested person by
medical practitioner at the request of the arrested person- When a person who is arrested,
whether on a charge or otherwise, alleges, at the time when he is produced before a
Magistrate or at any time during the period of his detention in custody that the examination of
his body will afford evidence which will disprove the commission by him of any offence or
which will establish the commission by any other person of any offence against his body, the
Magistrate shall, if requested by the arrested person so to do direct the examination of the
body of such person by a registered medical practitioner unless the Magistrate considers that
the request is made for the purpose of vexation or delay or for defeating the ends of justice.”

8.Right to Silence

The ‘right to silence’ has been derived from common law principles. It means that normally
courts or tribunals should not conclude that the person is guilty of any conduct merely
because he has not responded to questions which were asked by the police or by the
court. The breaking of silence by the accused can be before a magistrate but should be
voluntary and without any duress or inducement.

As per Article 20(3) of Constitution of India guarantees every person has been given a right
against self-incrimination, it states that any person who has been accused of any offense,
shall not be compelled to be a witness against himself. The same was again reiterated by a
decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani (1978) 2 SCC
424; wherein it was held that no one can forcibly extract statements from the accused and that
the accused has the right to keep silent during the course of interrogation (investigation). The
Supreme Court again in the year 2010, held that narco-analysis, brain mapping, and lie
detector test are in violation of Article 20(3) of the Constitution of India.

FIRST INFORMATION REPORT (FIR)

Meaning

The information regarding commission of an offense has to be entered in a book available

with the police. The information so recorded is called First Information Report i.e. F.I.R. It is
an information to the police station at first in point of time that an offense has
been committed and on the basis of which the investigation is commenced. Vague, cryptic
and indefinite telephonic information cannot be treated as F.I.R. But it need not be an
encyclopedia containing every minute detail of the offense (Manoj v. State of Maharashtra
(JT 1999 (2) SC 58).

There cannot be two F.I.R.s against the same accused in respect of the same offense. But
rival versions in respect of the same episode may take the shape of two different F.I.R. and
investigation can be carried on under both of them by the same investigating agency.
Registering of F.I.R. includes only the process of entering the substance of the information
relating to the commission of the cognizable offense in a book kept by the officer in charge of
the police station.

Provisions

The information may relate to the commission of either cognizable offense or non-cognizable
offense. Section 154 of Criminal Procedure Code deals with the cognizable offenses and
Section 155 deals with the non-cognizable offenses.

The book, mentioned in section 154 of CrPC, regarding cognizable offenses, is commonly
known as Formal F.I.R. whereas the book, mentioned in section 155 of CrPC, regarding non-
cognizable offenses, is commonly known as General Diary book.

Evidentiary Value of F.I.R. and effect of Delay

The Hon’ble Supreme Court of India held in one case that the first information report is never
treated as a substantive piece of evidence. It can only be used for contradicting or
corroborating its maker when he appears in court as a witness. Its value must always depend
on the facts and circumstances of a given case. The F.I.R. can only discredit the testimony of
its maker. It can by no means be utilized for contradicting or discrediting the other witnesses.
F.I.R not being a substantive piece of evidence cannot encroach upon the periphery of the
evidence tendered by other witnesses with regard to the incident.

The law has not fixed any time for lodging the F.I.R. In different Judicial pronouncements it
has come out that the F.I.R. should be filed as promptly as possible and if delayed, the
explanation for delay should be given in the F.I.R because delay in lodging the F.I.R often
results in embellishment, which is a creature of an afterthought. On account of delay, the
F.I.R. not only bereft of the advantage of spontaneity, but danger creeps with the introduction
of a colored version or exaggeration. Where the first information report regarding cognizable
offense was lodged after considerable delay, it was held by the Hon’ble Supreme Court that it
introduces serious infirmity in the prosecution case against the accused.

If the delay is unreasonable and not satisfactorily explained, it becomes fatal for the
prosecution case. But where the delay is reasonable and was satisfactorily explained, the
delay cannot by itself be a ground for disbelieving and disregarding the entire prosecution
case. (Apren Joseph v. State of Kerala (AIR 1973 SC 1)
While deciding a famous rape case, where there was delay of 10 days and by way of
explanation it was argued that as honor of family was involved its members had to decide
whether to take the matter to court or not Hon’ble Supreme Court accepted the explanation as
reasonable. (Harpal Singh v. State of H.P. (AIR 1981 SC 361)

CHARGE

Outline of Charge

The charge is the establishment of the allegation(s) against the accused in a criminal case.
The inspiration behind a charge is to inform an accused individual, precisely and succinctly
of the issue with which he is charged. It must pass on to him with adequate clearness and
certainty, what the prosecution expects to prove against him and which he should protect.
The fundamental principle of criminal law is that the accused ought to be informed with
certainty and precision the exact nature of the charge leveled against him.

Object

The object is to give the accused notice of the offense he is charged with and does not touch
jurisdiction.

Charge – Definition and Meaning

The charge is an accusation. Section 2 (b) of the Cr.P.C which reads as follows:- “ 2.
Definitions. – In this Code, unless the context otherwise requires, – (b) charge includes any
head of the charge when the charge contains more head than one”. According to Section 2 (b)
of Cr.P.C, when a charge contains more than one heads, the head of charges is likewise a
charge.

The Legal Provisions

The provisions regarding it are contained in Section 211 to 224 (Chapter XVII), 227, 228,
239, 240 and 464 of the Code of Criminal Procedure.

Nature of charge

It should be precise in its scope and particular in its details.

Contents and Essentials of a Charge

A charge must contain the following contents –

• Offence to be stated – In a charge sheet, the offense must be expressed, so that the
accused may shield him.
• Description of Offence by Name – The Charge ought to depict offense by name
which is given by that the creates an offense.
• Definition of offense – Where the criminal law does not give any specific name to the
offense than a definition/ meaning of the offense must be expressed.
• Law or Section of Law – A charge must contain the law or the section of the law
against which the offense is asserted to have been committed.
• Compliance with substantive Requirements of offense – The charge must fulfill the
requirements of offense, i.e., which it must not come within the exceptions, or if it
comes, then it must be mention in it.
• The language of the Charge – The charge shall be framed in English or the Court’s
language or the language understandable by an accused.
• Previous conviction of the accused – Where the accused is liable to enhanced
punishment by virtue of his previous conviction and such previous conviction has to
be proved; such charge might state the fact, date, and place of the previous conviction.
• Particulars as to time Place and Person – It is necessary that charge ought to contain
Time of offense, Place of offense, Person against whom the offense was committed
and Thing against whom the offense was committed.
• Particulars of the Manner of the alleged offense – Where the particulars above are not
sufficient to give notice of the offense with which the accused is charged, the charge
shall likewise contain the particulars of the way in which the alleged offense was
committed.
• Thing is Respect of which offense was committed – A charge should express the
property in respect of which not is said to have been taken place, for example where
an offense is committed under Arms Ordinance, details of the arms recovered from
the house of the accused must be stated in the charge.
Impact of a defective charge

The matter has been provided in Sections 215 and 464 of the Code of Criminal Procedure (as
amended up to date). The two sections read together to lay down that whatever the anomaly
in the framing of a charge; it is not deadly unless there is a bias caused to the accused. If the
vital information is conveyed to him and no harm is caused to him because of the charges, the
accused cannot prevail by only showing that the charges framed were defective.
Change and Altered / Amendment

Whenever before pronouncement of judgment, the charge can be altered or added. However,
it is essential that charge can only be altered on justification by material on record, and that
every such alteration or addition ought to be pursued and explained to accused.

Role of Accused

At the time of framing charge, the accused has no privilege to produce any material. In the
event that the contention of the accused is accepted, there would be a mini-trial at the stage of
framing of charge. That would vanquish the object of the Code.

Discharge

Sections 239 and 240 of Cr.P.C. are to be read together. If upon consideration of all the
documents alluded to in Section 173 Cr.P.C. and examining the accused, if considered
important by the Magistrate and also after hearing both sides, the Magistrate considers the
charge as baseless, he must discharge the accused.

Interlocutory Order

The order of framing of the charges is purely interlocutory as it does not terminate the
proceedings, but the trial goes on until it culminates in acquittal or conviction. Without a
doubt, if the court refused to frame charges and discharged the accused, the proceedings
would have ‘terminated’ but that is only one side of the picture. The other side of the picture
is that if the court declined to discharge the accused and framed charges against him, then the
order would be interlocutory on the grounds that the trial would still be alive.

Conclusion

The charge is an essential step in a criminal proceeding. It isolates the inquiry stage from the
trial. The charge is a first notice to accused of his offense; it should convey to him in
sufficient clearness and certainty what the prosecution intends to prove and which case the
accused is to meet. At the phase of framing charge, the court exercises a limited jurisdiction.
It would just need to see with respect to whether a prima facie case has been made out.
 INTIATION OF CRIMINAL PROCEEDINGS

Magistrate may proceed against an accused on the basis of a complaint of facts; or an

information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed (section 190 CrPC). The criminal
investigation process and prosecution mechanism in India, can be started in any of the
following manner:

1. On complaint /reporting /knowledge of the commission of a cognizable offence, any

police officer, even without the orders of a Magistrate, can investigate the cognizable
case. [Section 156 (1) of the CrPC]
2. In case of failure or inaction of a police officer to investigate a cognizable offence, a
criminal complaint can be filed before a Magistrate under Section 190 of CrPC, for
taking cognizance of such offence, and on such complaint, the Magistrate himself can
take cognizance of the case and do the enquiry, or in the alternative under Section 156
(3) of the CrPC, order Police to register an F.I.R and investigate the offence.
3. In case of non-cognizable offence, Police is not obliged to investigate, and the judicial
process can be started by filing a criminal complaint before the competent court,
under Section 190 of the CrPC.

It would be appropriate to describe, in brief, as to what a “complaint” is and what a “police

report” is.

What is a complaint?

Complaint is an allegation made to a magistrate with an intent that an action be taken against
the offender. Complaint may be made orally or in writing. It does not include a police report.
[section (2(d) CrPC]

Explanation to section 2(d) says that 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 complaint; and the police officer by whom such report is made shall be deemed to be the
complainant.

The explanation to section 2(d) should be read with section 155 of the Code. According to the
section 155 a police officer cannot investigate into a non- cognizable offence without the
order of the Magistrate. The information of the non-cognizable offence is entered into the
Diary Book. When any police officer produces copy of the entry of diary regarding
commission of non-cognizable offence and obtains permission of the Magistrate to
investigate into the offence and submits report to the Magistrate that report disclosing after
investigation the commission of a non-cognizable offence is referred to by the section 2(d) of
CrPC to be deemed as complaint.

Ingredients of a complaint:-

According to the definition of section 2(d) of CrPC, the following are essential ingredients of
a complaint:-

• It needs merely to be an oral or written allegation. So it need not be in any particular

prescribed form. A telegram or a letter addressing to the Magistrate and containing
that some person has committed an offence is sufficient to constitute a complaint.
• The complaint should contain a fact that some person, known or unknown, has
committed an offence.
• It should be made to a Magistrate. Hence a report by the police or CBI to the Hon’ble
High Court is not a complaint.
• The allegation must be made with a view to the Magistrate’s taking action according
to the CrPC. This taking action is not an administrative action.
• It is not compulsory that name of the accused should be mentioned.

In the case of Sunil v. State of W.B. [(1965) I CriLJ 630], Hon’ble High Court of Calcutta
held that a protest petition challenging a report of enquiry or a final report of the police is a
complaint. It must, however, contain all necessary facts which constitute an offence.

In the case of Mohd. Yousuf v. Smt. Afaq Jahan [Appeal (crl.) 2 of 2006], Hon’ble
Supreme Court of India held that there is no particular format for a complaint. Nomenclature
is also inconsequential. It has also been held in that case that a petition addressed to the
Magistrate containing an allegation that an offence has been committed and ending with a
prayer that the culprit be suitably dealt with is a complaint. It is not necessary to cite or quote
particular section of the IPC or any statute defining or providing the offence.

What is a police report?

When police submits a report, after investigating into a matter, that the investigation has
disclosed commission of a cognizable offence, such report is called a police report. [Section
2(r) CrPC.

However, when police submits a report, to the effect that investigation has disclosed
commission of a non-cognizable offence such report is treated as a complaint and the police
officer making the same is treated as a complainant section 2(d) of CrPC.
Whenever police submits a report, after investigating into a matter, that investigation has
disclosed commission of no offence at all, such report is generally called a final report.

TRIALS IN SUMMON CASES

Introduction

The Criminal Procedure Code of 1973 is, as is clearly indicated by its title, a comprehensive
enactment laying down the law relating to criminal procedure. But it is worth mentioning that
the code is not a pure adjective law of procedure; there are some provisions in it which take
the nature of substantive law. For instance, chapters VIII, X and XI which deals with
‘prevention of offences’ and chapter IX that deals with ‘maintenance of proceedings’. As per
the Code, criminal trials can be divided into three categories namely: warrant cases, summons
cases and summary trials. The focus of this article shall be summons cases.

Summons Cases

The term “summons cases” has been defined, in a negative sense, under Section 2(w) of the
CrPC as “a case relating to an offence, not being a warrant case”. On the other hand, a
“warrant case” means a case relating to an offence punishable with death, imprisonment for
life or imprisonment for a term exceeding two years[1].

The two definitions, thus, lead to the conclusion that the basis of classification between
summons case and warrant cases is the seriousness of the offence. This classification
becomes applicable while determining the type of trial procedure to be adopted in a case. The
trial procedure provided for summons cases is devoid of much formality and technicality as
in warrant cases since the former is relatively less serious in nature. Chapter XX (Ss. 251-
259) of the Criminal Procedure Code delineates the procedure for trial of summons cases.

The following are the stages to be followed in respect of procedure

relating to the trial of summons case:
1. Substance of accusation to be stated to the accused

When in a summons cases 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.[3] It is necessary that the accused should have a clear statement made to him
as to the particulars of the offence of which he is charged.[4]An accused may not be
convicted even on his admission of guilt if the prosecution report does not make out an
offence under a statute.[5]

2. Conviction on plea of guilty

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.[6] If the accused
admits some or all of the charges alleged by the prosecution but pleads “not guilty”, the court
is bound to proceed according to law by examining the witnesses of prosecution and
defence.[7]

3. Conviction on plea of guilty in absence of accused in petty cases

Section 253 of CrPC provides an even simpler procedure for disposing of petty cases without
the presence of accused in the court. Where the accused wants to plead guilty without
appearing in the court, the accused is supposed to send Rs.1000/- by post or through a
messenger (pleader) to the Magistrate. The Magistrate can on his discretion convict the
accused.

4. Procedure when not convicted by the Magistrate—

[Hearing the Prosecution and Defence case]

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 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.[8]

The Magistrate may, on the application of the prosecution, issue summons to any witness
directing him to attend or produce evidence.[9] The Magistrate is bound to examine all the
witnesses and he is not empowered to limit the number of witnesses.

The Magistrate may, before summoning any witness on such application, require that the
reasonable expenses of the witness incurred in attending for the purposes of trial be deposited
in court.[10]
5. Acquittal or conviction

If the Magistrate after considering evidence finds the accused not guilty, he shall record an
order of acquittal.[11] He may also decide to release the offender after admonition, or on
probation of good conduct after under Section 360, or under Probation of Offender Act,1958
after considering the nature of offence, character of offender and circumstances of the
case.[12] A Magistrate may convict the accused of any offence (amenable to the trial in a
summons case) which from the facts admitted or proved the accused appears to have
committed.[13] This can only be done if the Magistrate is satisfied that it would not prejudice
the accused.[14]

If the Magistrate, while discharging or acquitting the accused, thinks that there was no
reasonable ground for making accusation against the accused person, he may call upon the
person making such accusation to show cause as to why he should not pay compensation to
the accused person after which the Magistrate may, for reasons to be recorded, make an order
fixing the compensation to be paid by such person to the accused.[15]

6. The court can convert a summons case into a warrant case

Section 259 of the CrPC provides that if in the course of the trial of a summons case relating
to an offence punishable with imprisonment exceeding six months, it appears to the
Magistrate that in the interests of justice, the offence should be tried in accordance with the
procedure for trial of warrant cases, he may proceed to re-hear the case in the manner
provided by the Code for the trial of warrant cases and may even recall any witness who may
have been examined.

The words “re-hear the case” indicate that the Magistrate should commence the proceedings
from the very start or de novo.[16]

PROCEDURE OF TRIAL BEFORE SESSIONS COURT

Introduction

Sessions Court is the court that deals with criminal cases at a district level. To be more
precise, it deals with the more serious warrant cases. It cannot take cognizance directly of any
offense except in cases of defamation as given u/s 199 of CrPC. In rest other, a competent
magistrate takes cognizance and commits the case to the court for trial.
This is the stage where mainly trials coupled with evidence, arguments, the cross-
examination (basically all the fun part of being an advocate) takes place. Chapter-XVIII,
Sec.225-237 of the Code of Criminal Procedure, 1973 substantially deals with the procedure
for trial before a Sessions Court.

INITIAL STAGE OF TRIAL:-

All the process can be explained simply by an example. Imagine a courtroom with
prosecution [being a public prosecutor (Sec. 225)] on one and defense (represented by
one the accused chooses or the court appoints) on the other side. It is the duty of the
court to provide accused with all the necessary copies of documents for their perusal.

Since prosecution is the one accusing, (when the case in pursuance to Sec.209 is brought), he
is the one who will be initiating the case proceeding with the pieces of evidence to prove the
guilt of accused while describing the charges against him (Sec.226). This is mere to
determine whether the trial is to be affected or not. One thing to note here is that prosecution
is not under any duty to make the accused be present and hence his absence will not lead to
his acquittal[1]. It is the duty of the court to secure it.

If after this, the judge considers that there is no case against the accused by prosecution, he
will discharge the accused vide Sec.227 of CrPC (this clause merely ensures that a person is
not harassed with a prolonged, unnecessary trial[2]) giving reasons (to aid the superior court
in case of appeal in determining the correctness and sufficiency of reasons for acquittal[3]).
The Hon`ble Supreme Court in the case of Union of India v. Prafulla Kumar Samal[4], has
enumerated 4 principles to be kept in mind when the accused is to be discharged u/s 227, the
gist of which is a prima facie case should be made against the accused the test of which will
vary from case to case

But if the presumption of the commission of offense arises then there are 2 scenarios vide Sec.
228:

1. If that Court of Session can exclusively try the matter at hand, charges in writing by
the court shall be framed [228(1)(b)]
2. If the Court of Session cannot exclusively hold the trial, meaning thereby another
court has the jurisdiction to try this case at hand, then session court shall transfer the
case to the appropriate CJM or JM of First Class [228(1)(a)]

U/s 228, another important point to note is that if charges are framed as above given, they are
to be explained to the accused in the language and manner he will understand (though a
violation of it will not vitiate the further proceedings.) Then, the accused will be asked if he
pleads guilty to the offenses he is charged with or not [(228(2))].

The Stage at Sec.227 and 228 plus the presumption so as to lead to framing of charge(s) as
mentioned above can be the result of even a strong suspicion since court possesses a very
wide discretion to determine sufficiency of grounds available i.e. whether they are so as to
require the framing of charge(s)[5].

Sec.228 (1) and Sec.227 ensure that no frivolous accusation is made or that no trial takes
place without any material. Sec.227 and 228 are inter-related since the principles that are to
be followed u/s 227 to discharge an accused can also be made applicable to the framing of
charges. In case of the framing of charges, reasons for doing so need not be given. They are
to be explained though, still if not, this won`t necessarily vitiate the trial.

THE SECOND STAGE OF TRIAL:-

U/s 229, an accused can plead guilty of an offense either himself or if allowed to appear by a
pleader, then through him, in unambiguous terms. He can be convicted based on it except in
cases where the offense in question is punishable by death or life imprisonment where there
is a form of reluctance to convict based on such plea[6]. If a conviction is done, then any
right of appeal against such conviction stands curtailed[7]. For conviction on the basis of
such plea, it is held by the Hon`ble Supreme Court to be essential that the accused be
confronted with the substance of allegations against him[8].

If no such pleading or conviction u/s 229 is made/done, the court vide Sec.230 shall fix a date
for examination of witnesses or may compel the attendance of any witness or production of
any documents the prosecution may need.

U/s 231, the court is to take all evidence produced and allow any cross-examination as
mentioned in its clause (2).

THIRD STAGE OF TRIAL:-

U/s 232, the court may acquit the accused if no evidence/legal proof indicating his
involvement in the said offense appears/presented.

If no acquittal, then u/s 233, accused presents his case, may in writing or otherwise, can
produce evidence, witness just like the prosecution. However, this can be denied if it appears
that they are being presented only to cause inordinate delay etc. Hence, non-compliance with
this section does not necessarily vitiate the proceeding. Sec.315 considers an accused to be a
competent witness as well.

Sec. 234 and 314 both deal with who shall give the closing arguments. Being a specific
provision, 234 prevails if any conflict arises hence if Sec. 314 applies, defense gives the
closing argument but if 234 does, the prosecution sums up, defense replies after him.

After conviction, u/s 235, the accused shall be heard with regard to the sentence etc.(as given
from Sec. 353-365) and then will be sentenced unless Sec. 360 of CrPC[9] applies. This gives
the accused a right of pre-sentence hearing which will at the most have a bearing on the
choice of sentence[10] but has to be followed in letter and spirit otherwise it is a violation of
natural justice.

U/s 236, in case of a previous convict, the court may call for evidence on that matter and
record finding. This helps in case the accused is liable to enhanced punishment.

Lastly, Sec. 237 deals with procedure in cases of defamation of high dignitaries and public
servants to prevent vindication of the conduct of such officials. However, provision for
compensation to the accused to prevent false accusation is made as well.

CONCLUSION:-

In this way, we went through almost all forms of complexities that are involved in case of a
trial before a Sessions Court. In the beginning, it is decided whether there is any cause for
trial or not. Next, it is seen, if there are sufficient grounds to convict through cross-
examination, pieces of evidence etc. and lastly the accused is acquitted or sentenced as the
case may be.

APPEALS

Introduction

The term “appeal” has not been defined in the code. According to the dictionary meaning, an
appeal is a complaint or grievance to a superior court for reconsideration or review of a
decision, verdict or sentence of a lower court.[1] It has been said that every human being is
fallible and a judge is not an exception. It is thus possible that even a judge may err or
commit mistake and his decision may be wrong or faulty. Article 25 of the Constitution Of
India guarantees life and liberty to every citizen, small or big, rich or poor, as one of the
Fundamental Rights. It is therefore, necessary that a person aggrieved by an order of the court
of the first instance may be able to challenge it by preferring an appeal. An appeal is a
method of correction of manly error or solution of human frailty.

Chapter XXXIX (Section 372 – 394 of Cr.PC) deals with Appeals.

A right of Appeal is not a natural or inherent right. It is a statutory right and must be
governed by the statute which grants it.[2]

SECTION 372 provides, no appeal lies except otherwise provided by the Code or by any
other law for the time being in force. Under Articles 132, 134 and 136 of the Constitution of
India, it may be possible to present an appeal to the Supreme Court against the order of
acquittal passed by the High Court.

SECTION 373 – APPLIES TO APPEALS FROM

1. Orders requiring security for keeping peace or good behavior and

2. Against order refusing to accept or rejecting to accept or rejecting a surety under s.
121.

The appeal lies to Court of Session, except, of course, in cases where under sub-s. (2) Or (4)
of S. 122, the proceedings are already laid before the Session Judge.

SECTION 374: APPEALS FROM CONVICTIONS

• Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
• Any person convicted on a trial held by a Sessions Judge or an Additional Sessions
Judge or on a trial held by any other Court in which a sentence of imprisonment for
more than seven years [has been passed against him or against any other person
convicted at the same trial]; may appeal to the High Court
• Save as otherwise provided in sub-section (2), any person,
o convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions
Judge or Magistrate of the first class, or of the second class,
o sentenced under section 325, or
o in respect of whom an order has been made or a sentence has been passed
under section 360 by any Magistrate, may appeal to the Court of Session.
While disposing of appeals from the sentences of the Sessions Court under this Section, the
High Court should specify the reasons for rejection of appeal and should not reject it
summarily. This will enable the Supreme Court to know the view of the High Court, in case
the appellant moves the Supreme Court in appeal. For computing the sentence of
imprisonment for seven years for the purpose of ascertaining the appellate forum under
Section 374 (2), the sentence in default of payment of a fine is not to be added to the
substantive sentence of imprisonment.

An appeal from an order of acquittal must be filed within the period of limitation prescribed
by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of
limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12
of the Limitation Act, 1963 would be useful.

NO RIGHT OF APPEAL

Section 375 and 376 bar appeals in certain cases, though a provision of Revision is
maintainable. Thus no appeal shall lie-

• Where a High Court passes a sentence of imprisonment not exceeding six months or
fine not exceeding one thousand rupees or both;
• Where a Court of Session or a Metropolitan Magistrate passes a sentence of
imprisonment not exceeding three months or fine not exceeding two hundred rupees
or both;
• Where a Magistrate of the First Class passes a sentence of fine not exceeding one
hundred rupees; or
• Where in a summary case, a Magistrate passes a sentence of fine not exceeding two
hundred rupees.
APPEAL FOR ENHANCEMENT OF SENTENCE

Section 377 confers right on the Government to file an appeal against the inadequacy of
sentence awarded by any court other than a High court. If the sentence appears to be
manifestly inadequate resulting in failure of justice, the appellate court can interfere with it
and can enhance the sentence. But at the same time, the high court can also exercise its
revisional jurisdiction, suo motto call for the record and enhance the sentence in appropriate
cases after giving an opportunity to the accused.[4]The appellate court must pass a speaking
order for enhancing the sentence. A bold statement that the ends of justice demanded
enhancement of sentence was held insufficient by courts.
An appeal under Section 377 must be filed by the State within a period of 60 days and the
contention of the State that it was under a mistaken belief that period of limitation is ninety
days would be no excuse for condonation of the delay.

APPEAL IN CASE OF ACQUITTAL

Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present an
appeal to the Supreme Court against the order of acquittal passed by the High Court.

An appeal from an order of acquittal must be filed within the period of limitation prescribed
by Article 114 of the Schedule of the Limitation Act, 1963. For the extension of the period of
limitation, and for exclusion of time in computing the period of limitation, Sections 5 and 12
of the Limitation Act, 1963 would be useful.

Appeal against an order of acquittal is an extraordinary remedy. In exercising this power the
High Court should give proper weight and consideration to “Very substantial and
compelling reasons.

“Very substantial and compelling reasons” exist when:

• The trial court’s conclusion with regard to the facts is palpably wrong;
• The trial court’s decision was based on an incorrect view of law;
• The trial court’s judgment is likely to result in “grave miscarriage of justice”;
• The entire approach of the trial court in dealing with the evidence was patently illegal;
• The trial court’s judgment was manifestly unjust and unreasonable;
• The trial court has ignored the evidence or misread the material evidence or has
ignored material documents like dying declarations/ report of the Ballistic expert, etc.
• This list is intended to be illustrative, not exhaustive.

The Appellate Court must always give proper weight and consideration to the findings of the
trial court. If two reasonable views can be reached – one that leads to acquittal, the other to
conviction – the High Court’s/appellate courts must rule in favour of the accused.

POWERS OF APPELLATE COURT IN APPEAL AGAINST

ACQUITTAL

In Chandrappa & Others v. State of Karnataka [6], Supreme Court held:

 1. An appellate court has full power to review, re-appreciate and reconsiders the
evidence upon which the order of acquittal is founded.
2. The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on
the exercise of such power and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
3. Various expressions, such as, “substantial and compelling reasons”, “good and
sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring
mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an
appeal against acquittal. Such phraseology are more in the nature of “flourishes of
language” to emphasize reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the evidence and to come to its own
conclusion.
4. An appellate court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved guilty by a competent
court of law. Secondly, the accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and strengthened by the trial court.
5. If two reasonable conclusions are possible on the basis of the evidence on record, the
appellate court should not disturb the finding of acquittal recorded by the trial court.”
SECTION 379 – APPEAL AGAINST CONVICTION BY HIGH
COURT IN CERTAIN CASES

Where the High Court has, on appeal, reversed an order of acquittal of an accused person and
convicted him and sentenced him to death or to imprisonment for life or to imprisonment for
a term of ten years or more, he may appeal to the Supreme Court.

An appeal to would lie to the Supreme Court as a matter of right when High Court, on appeal,

1. Reversed an order of Acquittal of an accused person and

2. Convicted and sentenced him to death or to imprisonment for life or to imprisonment
for a term of ten years or more.[8]

In other cases appeal can be filed, if the High Court certifies that the case is a fit one for
appeal to the Supreme Court. Only grave injustice manifest on record can induce the
Supreme Court to interfere with the concurrent finding of guilt of Courts below. The Court
would be slow in reversing the finding entered by the High Court unless there is a perverse
and erroneous appreciation of evidence. If the High Court, for acquitting the accused has
given certain tenable reasons, the Supreme Court would not be justified in interfering with
such acquittal.[9] The word “acquittal” doesn’t mean that the trial must have ended in a
complete acquittal but would also include the case where an accused has been acquitted of
the charge of murder and has been convicted of a lesser offense.[10]

SECTION 380- SPECIAL RIGHT OF APPEAL IN CERTAIN

CASES

Notwithstanding anything contained in this Chapter, when more persons than one are
convicted in one trial, and an appealable judgment or order has been passed in respect of any
of such person, all or any of the persons convicted at such trial shall have a right of appeal.

Form of Appeal -SECTION 382 – Petition of appeal.

Every appeal shall be made in the form of a petition in writing presented by the appellant or
his pleader, and every such petition shall (unless the Court to which it is presented otherwise
directs) be accompanied by a copy of the judgment or order appealed against. A copy of the
judgment or order means a certified copy. The court has, however, discretion to dispense with
the copy of the judgment.[11]

SECTION 383 – APPEAL FROM JAIL

Where a convict is in jail and intends to challenge his conviction, he can file an appeal from
jail by presenting it to the officer in charge of the jail. It is the duty of the jail officer to
forward such appeal to an appropriate court. No Jail Appeal can be dismissed without
affording the reasonable opportunity to the appellate court of being heard.

SECTION 384 – Summary Dismissal of Appeal or Dismissal in

Limine
• If upon examining the petition of appeal and copy of the judgment received under
section 382 or section 383, the Appellate Court considers that there is no sufficient
ground for interfering, it may dismiss the appeal summarily.
• DISMISSAL IN LIMINE (U/S 384)
The Appellate court’s power to dismiss an appeal must be exercised sparingly and
with great circumspection. The Apex court has dealt with cases where the summary
dismissal of criminal appeal is permissible. Even if the records of the case is
destroyed or is not available, it would justify acquittal. Bolin v. Jagdish (2005) AIR
2005 SC 1872; State v. Abhai Roy (2004)4 SCC 6
SECTION 385 – Procedure for hearing of the appeal which has been
admitted and not dismissed summarily under Section 384

The section lays down the procedure for hearing of the appeal which has been admitted and
not dismissed summarily under Section 384.

An order of the High Court setting aside the acquittal of the accused in appeal without notice
having been sent to the accused was held to be illegal. The accused must be heard and his
appearance must be ensured while disposing of the appeal.

Where the appeal is not dismissed summarily under Section 384, the Appellate Court is
bound to call for the record if such record has not already been sent by the Court and then
give a hearing to the parties However, the Court may dispose of the appeal even without
asking for the record where the appeal is only as to the legality of the sentence.

POWERS OF APPELLATE COURT

SECTION 386 Of the Code specifies powers of the appellate court. It provides that after
persuing the record and after hearing the parties, the court may dismiss the appeal, allow the
appeal or pass any other order that may appear to it be just and proper.

It includes appeal –

• Against Acquittal
• Against conviction
• For enhancement of sentence
• From other orders

Clause (d) of section 386 applies to all orders other than that of conviction, or of acquittal, or
for enhancement of sentence. The power which the appellate court possess is of alteration or
reversal of the order of the lower court.[12] According to Section 386(e) of the Code, the
appellate Court may make any amendment or any consequential or incidental order that may
be just or proper.

CONCLUSION

An appeal is a creature of statute and the power and jurisdiction of the appellate court must
be circumscribed by the words of the statute. At the same time, a court of appeal is a ‘court
of error’ and its normal function is to correct the decision appealed from if necessary, and its
jurisdiction should be co-extensive with that of the trial court. It cannot and ought not to do
something which the trial court was not competent to do.

[2] Akalu v. Ram Deo, AIR 1973 SC 2145

[3] Appeal (crl.) 320 of 2001

[4] Bachan Singh v. State of Punjab, AIR 1980 SC 267

[5] AIR 1963 SC 200

[6] (2007) 4 SCC 415

[7] AIR 1964 SC 286

[8] Chandra Mohan Tiwari v. State of Madhya Pradesh, AIR 1992 SC 891.

[9] Vijaybhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel, (2004) 10 SCC 583.

[10] Tarachand Damu v. State of Maharashtra, 1962 AIR 130.

[11] State of U.P. v. Tobit, AIR 1958 SC 414

[12] Gul Zaman v. Emperor AIR 1943 Pes 6 .

PLEA BARGAINING

Introduction

In India, Plea Bargaining has certainly changed the face of the Indian Criminal Justice
System. It is applicable in respect of those offences for which punishment is up to a period of
7 years. Moreover, it does not apply to cases where the offence committed is a Socio-
Economic offence or where the offence is committed against a woman or a child below the
age of 14 years. Also once the court passes an order in the case of Plea Bargaining no appeal
shall lie to any court against that order.

Meaning and Definition

While searching for the dictionary meaning one can get meanings only after connecting the
two words together, that is a plea, meaning to bring forward one’s excuse, justification,
defence, and bargaining, ways to arrive at an agreement of favorable purchase. A “plea
bargain”[1]is a practice whereby the accused forgoes his right to plead not guilty and demand
a full trial and instead uses a right to negotiate for a benefit.

In other words, plea bargaining means the accused’s plea of guilty has been bargained for,
and some consideration has been received for it. Plea Bargaining is an arrangement between
prosecutor and defendant whereby the defendant pleads guilty to a lesser charge in exchange
for a more lenient sentence or an arrangement to drop other charges.[2]

In State of Uttar Pradesh v. Chandrika (AIR 2000 SC 164), the Supreme Court held that it
is settled law that by plea bargaining Court cannot dispose of the criminal cases. The Court
has to decide it on merits.

Salient Features of Plea Bargaining

Following are the salient features of Plea Bargaining;

1. It is applicable in respect of those offences for which punishment is up to a period of

7 years.
2. It does not apply to cases where offence is committed against a woman or a child
below the age of 14 years.
3. When court passes an order in the case of plea bargaining no appeal shall lie to any
court against that order.
4. It reduces the charge.
5. It drops multiple counts and presses only one charge.
6. It makes a recommendation to the courts about punishment or sentence.
Types of Plea Bargaining

There are three main types of Plea Bargaining namely,

1. Charge Bargain
2. Sentence Bargain
3. Fact Bargain
Object of Plea Bargaining

By introducing the concept of Plea Bargaining in the Criminal Procedure the object of the
legislature is to-

1. reduce the pending litigation.

2. decrees the number of undertrial prisoners.
3. make provision of compensation to the victim of crimes by the accused.
4. cut delay the disposal of criminal cases.
Drawbacks of Plea Bargaining

Some of the major drawbacks of the concept of Plea Bargaining as is recognized in India are
as under;

1. A threat to the right to fair trial.

2. Involving the Police in Plea Bargaining process would invite coercion.
3. By involving the court in Plea Bargaining process the court impartially is impugned.
4. Involving the victim in Plea Bargaining process would invite corruption.
5. If the plead guilty application of the accused in reject then the accused would face
great hardship to prove himself innocent.
Requirement’s

To ensure fair justice, Plea Bargaining must encompass the following minimum requirements
namely,

1. The hearing must take place in court.

2. The court must satisfy itself that the accused is pleading guilty knowingly and
voluntarily.
3. Any court order rejecting a Plea Bargaining application must be kept confidential to
prevent prejudice to the accused.
Practical Analysis

Sections 265A to 265L are incorporated in the Code of Criminal Procedure (Cr.P.C.)[7] by
Amendment Act with effect from 5th of July, 2006 to give effect to the system of “Plea
Bargaining”.

1. The accused is entitled to avail the benefit of “plea bargaining” both in the cases
instituted on the police report as well as by way of a private complaint under Section
200 Cr.P.C.
 2. The benefit of “plea bargaining” is available to the accused that is not guilty of
committing an offence punishable by death or life sentence and not exceeding seven
The benefit also does not apply if the crime affects the socio-economic conditions of
the society and also to the crimes committed against woman or child below the age of
14 years. Plea bargaining is not applicable to juvenile offenders.
3. The accused should make an application. The court should conduct in camera inquiry
to ascertain that the application is voluntary and without duress. The Court should
notify the public prosecutor and the victim to arrive at final disposition.
4. On the admission of guilt, the Court should impose One-Fourth of the sentence
prescribed for the offence. In case the offence is punishable for minimum
imprisonment half of such imprisonment is to be imposed. In both the situations, the
Court can award compensation to the victim after productive negotiations with the
accused and the victim.
5. The accused is entitled to the benefit of Probation of Offenders Act, the benefit of let
off under section 428 Cr.P.C. and benefit of bail.
6. The accused convicted in the system of a plea of bargaining has no right of appeal,
but the remedy of writ jurisdiction under Articles 226 and 227[8] and Special Leave
Petition under Article 136[9] of the Constitution of India is not barred.

Conclusion – Final Remarks

Plea bargaining is undoubted, a disputed concept. Few people have welcomed it while others
have abandoned it. It is true that plea bargaining speeds up caseload disposition. The criminal
courts are too overburdened to allow each case to go to trial. In such situation, the system is
left with no other choice but to adopt this technique.

PROCEDURE FOLLOWED BY MAGISTRATES IN COURTS

Procedure to be followed by magistrates when a complaint is filed

before them

The procedure to be followed and the powers conferred to the magistrate are given in the
criminal procedure code, 1973 and also some in Indian Penal Code, 1860. The primary and
main objective of these proceedings to be conducted is to ensure that the trail must be fair and
no one should be deprived of their rights. First of all the main duty of the magistrate when the
complaint is filed is to see that the accused should be treated as innocent till the charge
against him is proved and also should check that he doesn’t escape from the punishment.

The powers of the magistrate are given in section 156(3) of CrPC, the procedure which he
needs to follow may also be classified under this act. But before discussing it we need to
know the different kinds of magistrates. Even the classification is given in the Code of
criminal procedure.

According to CrPC in each sessions district, there shall be –

1. An executive magistrate,
2. Judicial magistrate of Second Class,
3. Judicial Magistrate of First Class and
4. The chief judicial magistrate. In as much as section 156(3) of CrPC says that “any
Magistrate empowered under section 190 may order such an investigation as above
mentioned”.

So here we must also understand section 190 of CrPC. According to this section 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- upon receiving a
complaint of facts which constitute such offence; upon police report of such facts; upon
information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed.

In the case of CBI & another v. Rajesh Gandhi and another[1] the Hon’ble apex court
held that “no one can insist that an offense is investigated by a particular agency.”[2]

CASES

[1] 1997 Cr.L.J 63

[2] Sakiri Vasu V. State of U.P. and others.

PROVISIONS AS TO PERSONS OF UNSOUND MIND

INTRODUCTION

Chapter 25 of the Code of Criminal Procedure deals with the accused persons of unsound
mind. The chapter starts with Section 328 and ends at Section 339. An accused person in a
layman language is any person who is presumed to be charged with some offence, or against
whom any claim of committing an offence is made. An unsound person is a person who is
lunatic or otherwise insane. When we talk about an accused being of an unsound mind we
mean a person who has committed an offence in a state of mind whereby he couldn’t
understand the nature of the act he is committing. What remedies law has provided for such a
person? Chapter 20 has provided for certain safeguards for an accused who is not in a normal
state of mind which are detailed herein below:

PROCEDURE IN CASE OF ACCUSED BEING LUNATIC –

SECTION 328

The section says that when a Magistrate is conducting an inquiry and he has reasons to
believe that the person against whom the inquiry is initiated is of unsound mind and
consequently incapable of making his defense, the magistrate shall inquire into the fact of
such unsoundness of mind and shall cause such person to be examined by civil surgeon of the
district or any such medical officer as the state government may direct, he shall then examine
such surgeon or medical officer whatever the case may be as witness and shall reduce the
examination in writing.

Clause [(1A) was inserted by the Act 5 of 2009, Section 25(a) : According to this clause if a
civil surgeon or a medical officer finds the accused to be of unsound mind he shall refer such
person to a psychiatrist or clinical psychologist and he shall inform the Magistrate whether
the accused is suffering from unsoundness of mind or mental retardation. This clause comes
with a proviso which lays down:

Provided that if the accused is aggrieved by the information which is given by

the psychiatrist or clinical psychologist, as the case may be to the Magistrate, he may prefer
an appeal before the Medical Board which shall consist of :

• head of the psychiatry unit in the nearest government hospital

• a faculty member in psychiatry in the nearest Medical college.

Clause 2 of the said Section provides that pending such inquiry and examination the
Magistrate may deal with the accused person in accordance with Section 330.

Clause 3 added by Act 5 of 2009, Section 25(b) : says that if the Magistrate is informed that
the person referred to in sub section (1A) is of unsound mind, the Magistrate shall further
determine whether the unsoundness of mind renders the accused incapable of defending
himself, if the Magistrate believes that the accused is incapable of defending himself, he shall
record a finding to that effect and shall examine the record of evidence produced by the
prosecution, the Magistrate has to question the advocate and not the accused, if he finds out
that no prima facie case is made out against the accused, he shall discharge the accused
instead of postponing the enquiry and shall deal with him in a manner provided under Section
330.

Where the Magistrate finds out that a prima facie case is made out against the accused
person, he shall postpone the proceedings till such a time period as in the opinion of the
psychiatrist or psychologist is required for the treatment of the accused.

Subsection 4 of the section provides that if the Magistrate is informed that the accused person
is suffering from mental retardation, he shall further determine whether the mental retardation
renders the accused person incapable of defending himself, if the accused is found incapable,
the Magistrate shall order closure of inquiry and deal with the accused as provided under
Section 330.

PROCEDURE IN CASE OF PERSON OF UNSOUND MIND

TRIED BEFORE COURT –SECTION 329

Subsection 1: says if during the trial before a Magistrate or Court of Session, it appears to the
court or Magistrate that the person in question is of unsound mind and consequently
incapable of making his defence, the Magistrate or Court shall in the first instance try the fact
of such unsoundness and incapacity, and if the Court or Magistrate after examining the
medical and other evidence as may be produced, is satisfied with the fact, he or it shall record
a finding to that effect and shall postpone further proceedings in the case.

Clause (1A) Inserted by Act 5 of 2009, Section 26(a) the clause says that if during the trails
the Magistrate or the court finds the accused to be of unsound mind, he shall refer such
person to a psychiatrist or clinical psychologist for care and treatment, and any of such
person whether the psychologist or psychiatrist as the case may be shall report to the
Magistrate whether the accused person is suffering from unsoundness of mind :

Provided if the accused is aggrieved by such report he shall prefer an appeal before the
Medical board which shall consist of

(a) head of psychiatry unit in the nearest hospital

(b) a faculty member in psychiatry in the nearest medical college

sub-section (2) of the said section says that if the Magistrate or Court is informed that the
person referred in sub-section (1A) is a person of unsound mind, the Magistrate or Court
shall further determine whether unsoundness of mind renders the accused incapable of
entering defense and if the accused is found so incapable, the Magistrate shall examine the
record of evidence produced by the prosecution and shall record a finding to that effect if the
Court finds no prima facie case is made out against the accused person, he or it shall instead
of postponing the trial discharge the accused and shall deal with him according to the
provisions of Section 330. But if the Magistrate finds out that the prima facie case is made
out he shall postpone the trail for a period as may be prescribed by the psychiatrist or clinical
psychologist for the treatment of the accused.

Sub section (3) lays down that if the Magistrate or Court finds that a prima facie case is made
out against the accused and he is incapable of entering defense because of mental retardation,
he or it shall not hold any trail and may deal with the accused according to Section 330.

State of Maharastra v. Sind A.I.R 1975 SC 1665

The Supreme Court has held that the word “trail” in Section 329 includes reference under sub
section (1) of Section 336. In this case death penalty was given to the accused person of
unsound mind the question was whether Section 329 shall apply to the accused when the
sentence has been passed by the Sessions Judge but sent for confirmation to the High Court.
It was held that the trial of the accused, a person of unsound mind sentenced to death does not
conclude with the termination of the proceedings in the Court of Sessions because the trail
cannot be deemed to have concluded in till an executable sentence is passed by the competent
court.

RELEASE OF LUNATIC PENDING INVESTIGATION OR

TRAIL – SECTION 330

Sub section (1) of Section 330 provides that whenever a Magistrate or a Court finds the
accused to be of unsound mind under Section 328 or Section 329, he or it shall order the
release of such person whether the offence is bailable or not:

Provided that the accused is suffering from such unsoundness or mental retardation which
does not require in-patient treatment, and a friend or relative takes responsibility that such
person will not cause injury to himself or any other person.
Sub section (2) says that if the offence is such that a bail cannot be granted or proper
undertaking is not given then the magistrate shall order such person to be kept at such a place
where he can get regular psychiatric treatment and report the action taken to the State
Government :

Provided no order of detention of such person in a lunatic asylum shall be made otherwise
than in accordance with such rules as the State Government may have under the Mental
Health Act, 1987.

(3) Whenever a person is found under Section 328 or Section 329 to be incapable of entering
into defense because of unsoundness of mind or mental retardation the Magistrate or the
Court as the case may be, shall keep in mind the nature of the offence committed and the
extent of unsoundness or mental retardation, and shall further determine whether the accused
can be released or not:

Provided that :

• If on the opinion of the medical specialist, the Magistrate or Court as the case may be,
decide that the accused should be discharged as mentioned under Section 328 and
Section 329, such release may be ordered, if sufficient security is given that the
accused will not cause injury to himself or any other person
• If the Court or Magistrate as the case may be, is of the opinion that discharge of the
accused cannot be ordered, the Magistrate or Court shall order the transfer of the
accused to a residential facility for persons of unsound mind or mental retardation
where the accused may be provided with proper care and appropriate training and
education.

Joy Hari Kor, (1877) 2 Cal 356

It was held that the authority of a Magistrate to act under sub section (1) ceases when the
lunatic is handed over to the care of the State Government. If the relative of such lunatic
desires to have the custody of the lunatic he should apply, not to the Magistrate, but to the
Government.

RESUMPTION OF INQUIRY OF TRAIL – SECTION 331

Sub section (1) provides that whenever an inquiry or a trail is postponed because of the
reason of the accused being unsound or mentally retarded, the Magistrate or the Court as the
case may be, at any time after the person concerned has ceased to be of unsound mind,
resume the inquiry or trial, and require the accused to appear or be brought before such
Magistrate or Court.

Sub section (2) lays down that when the accused has been released under Section 330, and
the sureties for his appearance produce him to the officer who Magistrate or Court appoints in
this behalf, the certificate of such officer that the accused is capable of making his defence
shall be receivable in evidence.

PROCEDURE ON ACCUSED APPEARING BEFORE

MAGISTRATE OR COURT – SECTION 332

Sub section (1) provides that if the Magistrate or the Court finds the accused person of being
capable of defending himself, the inquiry or the trial shall proceed.

Sub section (2) lays down if the Magistrate or the Court considers the accused of being
capable of making defence, the Magistrate or the Court shall act according to the provisions
of Section 328 or Section 329, as the case may be, and if the accused is found to be of
unsound mind and consequently incapable of making his defence, he or it shall deal with the
accused according to the provisions of Section 330.

WHEN ACCUSED APPEARS TO HAVE BEEN OF SOUND

MIND – SECTION 333

When the accused appears before the Magistrate or Court to be of sound mind at the time of
inquiry or trial, and the Magistrate is satisfied from the evidence produced before him that
there is reason to believe that the accused committed an act, which, if he would have been of
sound mind, would have been an offence, and that he was, at the time when the act was
committed, by reason of unsoundness of mind, incapable of knowing the nature of the act or
that it was wrong or contrary to law, the Magistrate shall proceed with the case,and, if the
accused ought to be tried by the Court of Session,commit him for trial before the Court of
Session.

JUDGEMENT OF ACQUITTAL ON GROUND OF

UNSOUNDNESS OF MIND – SECTION 334

Whenever any person is acquitted upon the ground that, at the time of commission of the
offence he was incapable of knowing the nature of the act committed, by reason of the
unsoundness of mind, and that he did not have the sense of recognizing the act as wrong or
contrary to law, the finding shall state specifically whether he committed the act or not.

State of Karnataka v. Jatli, 1992 CrLj 3835

The accused assaulted his wife and children and set fire to a house, but the plea of insanity
was neither taken by the accused nor the prosecution referred to it, the trial Judge may
resolve the issue all by himself but he must have a set of facts produced in evidence by a
competent Medical person. In the absence of such evidence, the judge cannot acquit the
accused on grounds of insanity on his own.

PERSON ACQUITTED ON SUCH GROUND TO BE DETAINED

IN SAFE CUSTODY – SECTION 335

Sub section (1) of the said section provides for whenever it is found that the alleged person
committed the act allegedly, the Magistrate or the Court before whom the trail has been held
shall, if such act would, but for the incapacity found have constituted an offence:

(a) order such person to be detained in safe custody in such a place as the Magistrate may
deem fit

(b) order such person to be delivered to the relative or friend

Sub section (2) lays down that no order of detention of the accused in a lunatic asylum shall
be made under clause (a) of sub section (1) otherwise than in accordance with such rules as
the State Government may have made under the Indian Lunacy Act, 1912

Sub section (3) of the section provides that no such order under clause (b) of subsection (1)
shall be made otherwise than on application is given by the friend or relative, only after
providing the security to the satisfaction of the Magistrate or Court as the case may be, that
the person delivered shall:

(a) be properly taken care of and prevented from doing injury to himself or any other person

(b) be produced for the inspection of such officer, and at such time and places, as the State
Government may direct

Sub section (4) provides that the Magistrate or Court shall report to the State Government the
action taken under sub section(1).
Legal Remembrancer v. Srish Chandra Roy, (1928)56Cal 208

The court held that detained in the safe custody does not mean detained in the custody of
friends or relatives.

POWER OF THE STATE GOVERNMENT TO EMPOWER

OFFICER IN CHARGE TO DISCHARGE – SECTION 336

According to this Section the State Government shall empower the officer in charge of the
jail in which a person is lodged under Section 330 or Section 335 to discharge all or any of
the functions of the Inspector General of Prisons under Section 337 or Section 338.

PROCEDURE WHERE LUNATIC PRISONER IS REPORTED

CAPABLE OF MAKING HIS DEFENCE – SECTION 337

Where the person is detained under the provisions of sub section (2) of Section 330, in case
of the person detained in jail, the Inspector General of Prisons,or, in case of a person detained
in a lunatic asylum, the visitors of such asylum or any two of them shall certify, that such a
person is capable of making his defence and that he shall be taken before the Magistrate or
Court, at such time as the Magistrate or Court appoints, and deal with such person according
to the provisions of Section 332, the certificate of the Inspector General of Prisons shall be
receivable as evidence.

PROCEDURE WHERE LUNATIC DETAINED IS DECLARED

FIT TO BE RELEASED – SECTION 338

Sub section (1) provides that if a person is detained under sub section (2) of section 330 or
Section 335 and such Inspector General or visitor shall certify that, in his or their judgment,
he may be released with an authorization that he will neither cause damage to himself or any
other person, the State Government may thereupon order him to be released, or to be detained
in custody, or to be transferred to a public lunatic asylum if he has not been already sent to
such asylum, for sending him to the asylum he shall constitute a commission, consisting of a
judicial officer and two medical officers

Sub section (2) of the said section lays down such commission shall make a formal inquiry
into the state of mind of that person, take such evidence as may be necessary, and shall report
to State Government, which may order his release or detention as it deems fit.
DELIVERY OF LUNATIC TO CARE OF RELATIVE OR
FRIEND – SECTION 339

Sub section (1) provides that whenever any relative or friend of any person detained under
the provisions of Section 330 or Section 335 wants to take custody of the accused person, he
shall write an application and provide the security to the satisfaction of the State Government,
that the person delivered shall

(a) be properly taken care of and prevented from doing injury to himself or any other person

(b) be produced for the inspection of such officer, and at such places and time as the State
Government may direct

(c) the person detained under sub section (2) of Section 330 be produced when required
before such Magistrate or Court, order such person to be delivered to such relative or friend

Sub section (2) if the person so delivered is accused of any offence, the trail of which has
been postponed by reason of unsoundness of mind or mental retardation, which render him
incapable of making his defence and the inspecting officer referred to in clause (b) of sub
section (1) certifies that such a person is capable of making his defence, such Magistrate or
Court shall call upon the relative or friend to whom such accused was delivered to produce
him before the Magistrate or Court and upon such production the Magistrate or Court shall
deal with him according to the provision of Section 332 and the certificate of the inspecting
officer shall be deemed as evidence.

CONCLUSION

The whole Chapter deals with the person of unsound mind, it provides certain safeguards to
the person in question, but at the same time the Court or the Magistrate dealing with such
cases need to go in detail to check and know the reason of insanity, the Court or Magistrate
shall order to examine him by Civil surgeon or any Medical Officer to find out the state of
mind of the accused person. The decision ultimately lies with the State Government the
future of the person in question lies in the hands of the State Government. The person is to be
kept in safe custody and provisions for that are also mentioned. The Sections also provide
that the person should only be delivered to a relative or friend when it is wholly ensured that
such person will not be a threat to himself or any other person. The chapter also contains
Sections which provide that upon the ability of the person to be capable of defending himself,
the proceedings which were postponed may be resumed.
Case Laws
• State of Maharastra v. Sind A.I.R 1975 SC 1665
• Joy Hari Kor, (1877) 2Cal 356
• State of Karnataka v. Jatli, 1992 CrLj 3835
• Legal Remembrancer v. Srish Chandra Roy, (1928) 56 Cal 208

OFFENCE AFFECTING THE ADMINISTRATION OF

JUSTICE

INTRODUCTION

It is a general rule in law that anybody can report an offence and Court takes cognizance of
the offence. But due to the nature of certain offences under the Indian Penal Code, the
legislature, has restricted this right in respect of certain offences, particularly in section 195
of Cr.p.c., 1973. The Public servants and Courts can therein take cognizance as mentioned in
chapter XXVI, section 340 to 352, provisions as to offences affecting the administration of
justice.

Section 190 of Cr.p.c. states that – A Court can 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 d)upon his
own knowledge, that such offence has been committed. This section empowers the Court to
take cognizance of the matter reported to it by any individual.

However, section 195 of Cr.p.c is an exception to this rule. Section 195 of Cr.p.c. provides
for the offences against public servants. It also states that the Court is barred from taking
cognizance of any offence committed against public servant[1] unless reported by himself.
No Court shall take cognizance of:

1. the offences committed, or abetment to commit or attempt to commit, or criminal

conspiracy to commit against a public servant [offence under section 172 to 188 (both
inclusive) of the Indian Penal Code (45 of 1860)
2. provides false evidence [ offence under sections 193 to 196 (both included),
199,200,205 to 211 (both inclusive) and 228 of the Indian Penal Code (45 of 1860) ]
3. forgery [offence under section 463,471,475 or 476 of the Indian Penal Code (45 of
1860) ]
Procedure in cases mentioned in section 195 – Section 340 of Cr.p.c

This section lays down the procedure to be followed in offences mentioned in section 195 of
Cr.p.c. When an offence is committed in relation to a public servant [s.195 (1) (a)] the
sanction of a public servant should first be obtained. When the offence is in relation to a
Court [s.195 (1) (b)] the sanction of the Court should be obtained first.

Any Civil, Criminal, Revenue Court can proceed under this section and hold a preliminary
inquiry. It should then record a finding or should itself make a complaint in writing or
forward it to the first class Magistrate having jurisdiction. No prosecution should be ordered
without a reasonable probability of conviction through the authority taking action should not
decide the question of guilt or innocence great care and caution is required before the
criminal law is set in motion. There must be a reasonable foundation for the charge in respect
of which a prosecution is directed.

*an Arbitrator cannot be termed as a Court within the meaning of this section and section
195. The question of applicability of section 340 to arbitral proceedings does not arise.

Appeal – Section 341 of Cr.p.c.

An appeal under this section from an order passed under section 340 by a Civil Court must be
deemed to be a criminal appeal and the provisions of the Court so far as applicable to appeals
apply to such an appeal. When an appeal under section 341 can be filed provided the
contingencies described therein are present. The first category covers an appeal by a person
who had made an application in a Court other than a High Court, praying for a complaint
under sub-section (1) (2) of section 340 which has been refused. The other category covers an
appeal by a person against whom such a complaint has been made in such Court. In either
event concerned person has an option of filing an appeal to the Court to which the formal
Court is subordinate within the meaning of sub-section(4) of section 195.

Power to order costs –Section 342 of Cr.p.c.

Any Court which is dealing with an application made to it for filing a complaint under
section 340 or an appeal under section 341 has the power to make such order as to costs as
may be just.

Power of Magistrate taking cognizance – Section 343 of Cr.p.c.

This section lays down the manner in which the complaints made under section 340 or
section 341 are to be dealt with and states that such complaints should as far as may be dealt
with as if the same way instituted on a police report under section 19 of the Code.

Summary procedure for trial for giving false evidence – Section

344 of Cr.p.c.

The offence for which a person can be summarily tried under section 344 Cr.p.c. is not the
offence under sec 193 IPC. However, in order to make a person liable for perjury, it is
necessary that he should have made a statement on oath regarding the facts to which his
statement was based and deny this on oath on a subsequent occasion. If both the statements
are opposed to each other and cannot be reconciled then the person may be liable to proceed
against perjury under section 344 Cr.p.c. or under section 193 of IPC.

Procedure in certain cases of contempt –Section 345 of Cr.p.c.

This section enables a court to preserve its decorum and maintain its dignity. It provides a
summary remedy to deal with certain kinds of contempt. It gives special power to a Court to
deal with a case of an insult made to the Court in its presence. The Court is not bound to any
evidence it can rely on its own opinion of what happened and can detain the offender in
custody, take cognizance of the offence and sentence him. All this, however, must be done
before the rising on the Court.

Procedure where Court considers that case should not be dealt with
under section 345 – Section 346 of Cr.p.c.

When the Court considers that an offence under section 345 cannot be tried summarily by it
or requires a heavier sentence it can after recording 1) the facts and 2) the statement of the
accused forward him to a Magistrate in the ordinary way as if it were instituted on a police
report. The Magistrates is not bound to follow the Special Procedure provided in sect 345[2].

When Registrar or Sub-Registrar to be deemed a court – Section

347 of Cr.p.c.

When the State government directs any Registrar or Sub-Registrar appointed under the
Registration Act, 1908 shall be deemed to be a Civil Court within the meaning of sect 345
and sec 346.
Discharge of offender on submission of apology – Section 348 of
Cr.p.c.

The offence described in section 345 is curable from satisfactory apology laid to the court
under section 345 or section 346 has been followed.

Imprisonment or committal of person refusing to answer or produce

the document –Section 349 of Cr.p.c.

This section is a special provision regarding the witness refusing to answer the questions as
required by it under section 17 of IPC. If due to the persistence in the refusal, he may be dealt
with according to the provision of section 344 or section 346.

Summary procedure for punishment for non-attendance by a

witness in obedience to the summons –Section 350 of Cr.p.c.

Under this section, if a summoned fails to appear without just excuse the Court may try him
summarily after hearing his defence and sentence him to fine not exceeding one hundred
rupees. The Court has to follow the procedure prescribed for summary trials.

Appeals for convictions under sections 344, 345, 349 and 350 –
Section 351of Cr.p.c.

The right of appeal conferred by sub-section (1) is not controlled by any other provision of
the Code. Therefore, an appeal against conviction and sentence under section 345, 349 and
350 of the Code under this sub-section even when the fine imposed does not exceed the limit
prescribed by section 376.

Certain Judges and Magistrates not to try certain offences when committed before themselves –
Section 352 of Cr.p.c.

A Magistrate who refuses to set aside an order sanctioning prosecution on the charge of
perjury cannot try the case himself[3] nor can a Sessions Judge try a person whose trial has
been directed by him for the offences of giving false evidence committed in the course of
judicial proceedings of a criminal nature[4].

@lawkhabar
CASE LAW

[2] Bipin Chandra Pal, (1907) 35 Cal 161.

[3] Seshadri Ayyangar, (1896) 20 Mad 383.

[4] Makhdum, (1892) 14 All 354

TRANSFER OF CRIMINAL CASES BY COURT

Introduction

Criminal law in India is mainly governed by Indian Penal Code, 1860 and Code of Criminal
Procedure, 1973. Former defines offences and punishments thereof while later lays down the
procedure to be mandatorily followed while pursuing a case. Chapter XXXI (Section 406 to
Section 412) of Code of Criminal Procedure deals with Transfer of Criminal Cases by the
courts.

Power of Supreme Court to transfer cases and appeals: Section 406

of Cr.P.C.

1) Whenever it is made to appear to supreme court that an order under this section is
expedient from the ends of justice, it may direct that any particular case or appeal to
transferred from one High Court to another High Court or from a Criminal Court
subordinate to one High Court to another Criminal Court of equal or superior jurisdiction to
another High Court.

2) The Supreme Court may act under this section only on the application of Attorney General
of India or of a party interested, and every such application shall be made by motion, which
shall, except when the applicant is the Attorney General of India or Advocate General of the
State, be supported by affidavit or affirmation.

3) Where any application for the exercise of the powers conferred by this section is
dismissed, the Supreme Court may if it is of opinion the application was frivolous or
vexatious, order the applicant to pay by way of compensation to any person who has opposed
the application such sum not exceeding one thousand rupees as it may consider appropriate
in the circumstances of the case.
Explanation

A case is transferred if there is a reasonable apprehension on the part of a party to a case that
justice will not be done. A petitioner is not required to demonstrate that justice will inevitably
fail. He is entitled to a transfer if he shows circumstances from which it can be inferred that
he entertains an apprehension and that it is reasonable in the circumstances alleged. It is one
of the principles of the administration of justice that justice should not only be done but it
should be seen to be done. However, a mere allegation that it is an apprehension that justice
will not be done in a given case does not suffice. The court has further to see whether the
apprehension is reasonable or not[1]

Powers of High Court to transfer cases and appeals: Section 407 of

Cr.P.C.

1) whenever it is made to appear to the High Court-

a.that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate
thereto; or

b.that some question of law of unusual difficulty is likely to arise; or

c.that an order under this section is required by any provision of this Code, or will tend to the
general convenience of the parties or witnesses, or is expedient for the ends of justice,

It may order-

i. that any offence be inquired into or tried by any Court not qualified under sections 177 to
185 (both inclusive), but in other respects competent to inquire into or try such offence;

ii. that any particular case or appeal, or class of cases and appeals, be transferred from a
Criminal Court subordinate to its authority to any other such Criminal Court of equal or
superior jurisdiction;

iii. that any particular case be committed for trial to a Court of Sessions; or

iv. that any particular case or appeal be transferred to and tried before itself.

2) the High Court may act either on the report of the lower court, or on the application of a
party interested, or on its own initiative:
Provided that no application should lie to the High Court for transferring a case from one
Criminal Court to another Criminal Court in the same sessions division, unless an
application for such transfer has been made to the Sessions Judge and rejected by him.

3) Every application of an order under sub-section 1) shall be made by motion, which shall,
except when the applicant is Advocate General of the State, be supported by an affidavit or
affirmation.

4) When such application is made by an accused person, the High Court may direct him to
execute a bond, with or without sureties, for the payment of any compensation which the
High Court may award under sub-section 7)

5) Every accused person making such application shall give to the Public Prosecutor notice
in writing of the application, together with copy of the grounds on which it is made and; and
no order shall be made on the merits of the application unless at least twenty four hours have
elapsed between the giving of such notice and the hearing of the application.

6) Where the application is for the transfer of a case or appeal from any subordinate court,
the High Court may, if it is satisfied that it is necessary so to do in the interests of justice,
order that pending the disposal of the application, the proceedings in the subordinate court
shall be stayed, on such terms as the High Court may fit to impose

Provided that such stay shall not affect the subordinate court’s power of remand under
section 309

7) Where an application for an order under sub-section 1) is dismissed, the High Court may,
if it is of opinion that the application was frivolous or vexatious, order the applicant to pay
by way of compensation to any person who has opposed the application such sum not
exceeding one thousand rupees as it may consider proper in the circumstances of the case.

8) When the High Court orders under sub-section 1) that a case can be transferred from any
Court for trial before itself, it shall observe in such trial the same procedure which that Court
would have observed if the case had not been so transferred.

9) Nothing in this section shall be deemed to affect any order of government under section
197.
Explanation

A Full Bench of Madras High Court has held that where an offence consists of several acts
done in different local areas the High Court when it is made to appear to it that the
circumstances contemplated under cl. (a), (b) or (c) of sub-section (1) exist, may order to the
case to be inquired into or tried by a Court having jurisdiction over any such local areas[2].

Power of session’s judge to transfer cases and appeals: Section 408 of

Cr.P.C.

1) Whenever it is made to appear to a Sessions Judge that an order under this sub-section is
expedient for the ends of justice, he may order that any particular case can be transferred
from one Criminal Court to another Criminal Court in his sessions divisions.

2) The Sessions Judge may act either on the report of the lower court, or on the application
of a party interested, or on his own initiative.

3) the provisions of sub-section (3), (4),(5),(6),(7) and (9) of section (7) can apply in relation
to an application to the Sessions Judge for an order under subsection (1) as they apply in
relation to an application to the Sessions Judge for an order under subsection (1) of section
407, except that the sub-section (7) of that section shall so apply as if for the words “one
thousand rupees” occurring herein, the words “two hundred and fifty” were substituted.

Explanation

The provisions of sub-section (3), (4),(5),(6),(7) and (9) of section (7) and (9)of s.407
becomes applicable in case of the application to the Sessions Judge also, with the difference
that for frivolous or vexatious application for transfer he can award maximum compensation
of Rs. 250 only. Where the Sessions Judge has transferred the case u/s 408 to the Court of the
Additional Sessions Judge, who has already begun the trial, a subsequent trial of the same
case before the Sessions Judge was illegal and beyond his jurisdiction[3].

Withdrawal of cases and appeals by Sessions Judge: Section 409 of

Cr.P.C.

1) A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal
which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate
subordinate to him.
2) At any time before the trial of the case or the hearing of the appeal has commenced before
the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has
made over to any Additional Sessions Judge.

3) Where a Sessions Judge withdraws or recalls case or appeal under subsection (1) or
subsection (2) he may either try case in his own court or appeal himself, or make it in
accordance with the provisions of this court to another court for trial or hearing, as the case
may be.

Explanation

A Sessions Judge cannot withdraw or recall a case or an appeal pending before a Judge which
has been partly head by him[4]. A case cannot be withdrawn and proceeded with under s.
409(1) after the trial has commenced[5]. Recital of a wrong section does not invalidate an
order which is otherwise within the power of the authority making it[6]

Withdrawal of cases by Judicial Magistrates: Section 410 of Cr.P.C.

1) Any Chief Judicial Magistrate may withdraw case from, or recall any case which he has
made over to, any Magistrate subordinate to him and may inquire or try such case himself, or
refer it for inquiry or trial to any other such magistrate competent to inquire into or try the
same.

2) Any Judicial Magistrate may recall any case made over by him under subsection (2) of
section 192 to any other magistrate and may inquire into or try such case himself.

Explanation

After considering the plea of not guilty of the accused, the magistrate posted the case for trial.
Consequently, on re-organisation on the jurisdiction of the courts, the case was transferred to
another Magistrate under section 410. The transferee Magistrate is bound by the order of his
predecessor and cannot go behind the pre-cognizance stage[7]

Making over or withdrawal of cases by Executive

Magistrate: Section 411 of Cr.P.C.

Any District Magistrate or Sub-divisional Magistrate may-

1. makeover for disposal, any proceeding which has been started before him, to any
Magistrate subordinate to him
 2. withdraw any case from, or recall any case which he has made over to, any
Magistrate subordinate to him, and dispose of such proceeding himself or refer it for
disposal to any other Magistrate.

Explanation

Any District Magistrate or Sub-divisional magistrate has right to make over to or withdraw
from any magistrate subordinate to him cases which have been made over to any magistrate
subordinate to him respectively vide s.411. Any case u/s 411 means any proceeding or
inquiry before an Executive Magistrate such as cases under section 107, 108, 109, 110, 132,
144, 145, 146 and 176.

The powers given by this section are very large and for that reason, they should be most
carefully exercised. The magistrate in the district should use the extensive discretion given to
them to divert the course of the procedure from its ordinary channel only when it is
absolutely necessary for interests of justice that they should do so[8].

Reasons to be recorded: Section 412 of Cr.P.C.

A Sessions Judge or Magistrate making an order under section 408, section 409, section 410,
section 411 shall record his reasons for making it.

Explanation

This section makes it incumbent on a Sessions Judge or a Magistrate to record reasons for
passing an order for transfer or recalling of the case or appeal under the preceding sections.

CASE LAW

[1] Gurcharan Das Chadha v. State of Rajasthan- LNIND 1965 SC 328

[2] Employees’ State Insurance Corporation v. M. Haji Muhammad, (1906) Mad 1 (FB)

[3] State of West Bengal v. Gangadhar Dawn, 1989 Cr LJ 563

[4] Smt. Gulzar v. Nizam, 1981 Cr LJ NOC 22

[5] Amrithappa v. State of Karnataka, 1982 Cr LJ 1336 (Knt)

[6] State of Karnataka v. Muniyalla, 1985 Cr LJ 751: AIR 1985 SC 470

@lawkhabar
[7] Food Inspector v. K.P. Alavikutty, 1987 Cr LJ 1298 (Ker)

[8] Umrao Singh v. Fakir Chand, (1881) 3 All 746, 749

LIMITATIONS FOR TAKING COGNIZANCE OF CASES

INTRODUCTION

The Code of Criminal Procedure has a full section dedicated to the cognizance of offences by
the Magistrates and has also dealt with the restrictions placed on his power of cognizance
regarding certain offences. Chapter XIV of the Code of Criminal Procedure lays down
cognizance as one of the conditions requisite for initiation of proceedings employs the word
‘cognizance’. Sections 190 and 193 provide for methods for taking cognizance under the
Code. This paper, therefore, will focus to the limitations imposed in taking cognizance of
certain cases, as per Chapter XXXVI of the CrPC.

LIMITS TO TAKING COGNIZANCE OF CERTAIN

OFFENCES

It must be noted that the power of the magistrate to take cognizance of an offence is not
absolute and operates under the ambit of certain limitation which has been listed under in
Chapter XXXVI of the CRPC in sections 467 to 473.

Definitions – Section 467:

This section has been coined in order to define the scope and limitations that exist in relation
to the specified period of taking cognizance of an offence, as stated under section 468. The
section reads as follows:-

“For the purposes of this Chapter, unless the context otherwise requires, “period
of limitation”means the period specified in section 468 for taking cognizance of an
offence.”

Unless an amendment has been imbibed in the Code modifying the above clause, or unless
exceptional circumstances provide otherwise, violation of this time period will be considered
ultra vires to the section.
The above section has been jurisdicated by the case of Additional District
Magistrate Jabalpur vs S.S Shukla (1976 AIR 1207)

Section 468- Bar to taking Cognizance after the lapse of the period of limitation:

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of
an offence of the category specified in Sub-Section, after the expiry of the period of
limitation.

(2)The period of limitation shall be-

a. six months, if the offence is punishable with fine only;

b. one year, if the offence is punishable with imprisonment for a term not exceeding one year;

c. three years, if the offence is punishable with imprisonment for a term exceeding one year
but not exceeding three years.

(3) For the purposes of this section, the period of limitation, in relation to offences which
may be tried together, shall be determined with reference to the offence which is punishable
with the more severe punishment or, as the case may be, the most severe punishment.

Bar of limitation for taking cognizance provided by Section 468 will not apply to the offence
under section 7 (1) (A) (ii) of the Essential Commodities Act 1955. (Nirmal Kanti Roy. vs.
State of West Bengal, (1998) Cr LJ 3282 (SC)

Section 469- Commencement of the period of limitation:

This section lays down the details regarding the commencement of the period of limitation in
taking cognizance to an offence. It lays down that such period should ensue on the date of the
commission of offence, or in case if the person aggrieved by the offence or to police officer is
oblivious about the exact date of the offence, then the period of limitation commencement
ensues from the first date when the victim or any such person or the police officer himself,
whichever earlier, gains a knowledge of the offence.[20]

In the case of adulteration, the period of limitation relating to the bar for taking cognizance
will start from the date of receipt of the report of Public Analyst and not from the date of
taking of the sample. (State of Rajasthan vs. Sanjay Kumar, 1998 Cri LJ 253 (SC)

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Section 470-Exclusion of Time in certain Cases:

This section elaborates on the time that is to be excluded while calculating the period of
limitation. Firstly, it says that if the concerned person whose offence or case is being
evaluated for cognizance is engaged in the proceedings of another prosecution against the
offender in the meanwhile, then the tenure taken by that prosecution would be excluded. The
prosecution might pertain to a case filed in the first instance or one in a court of appeal. The
explanation that the law provides here is that exclusion from the period of limitation will not
be allowed unless the prosecution is based on the same case and it rests upon the same set of
facts but by mistake of law, is being prosecuted in a court that is unable to entertain it due to
lack of jurisdiction. In such a situation, the time spent in the incorrect prosecution will be
rendered invalid and won’t be taken into account. The second clause provides that if the case
in prosecution has received a stay order or injunction from the court, then full period during
which the injunction or stay order will continue to operate will remain outside the purview of
the period of limitation of the cognizance.

This period starts from its day of issuance or the stay order or injunction and ends on the very
day of its official withdrawal by the court. It is stated that in case any law necessitates the
obtaining of any order of sanction or permission of any offence, then the date on which the
application for a sanction is filed till the date on which the sanction or permission is received
gets excluded from being computed within the period of limitation. Apart from the above the
period of limitation also does not consider the time during which the accused is outside the
territory of India or in any such area which is outside the administration of the central
government and also the time during which he tries to abscond conceal himself so as to
escape arrest.[22]

Exclusion of the date on which the court is closed – Section 471

The day of the closure of the court is excluded from being imputed to the specified period of
limitation. In case the date of expiry of the period of taking cognizance coinciding with the
date of closure of the court proceedings, it is the rule that the cognizance is taken when the
court sessions reopen thereafter. It has been further explained in this section that the court is
assumed to be closed for all those days when even during its normal working hours, it
remains closed for that particular day.

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Continuing offence -Section 472

In cases where the offence continues in its process of occurrence, commencement of a fresh
period of limitation relapses each time and from the very moment, the offence is reiterated
throughout the full tenure that it continues.

Extension of period of limitation in certain cases – Section 473

The last and the final section is especially important as it postulates the criteria available for
extension of the period of limitation in certain cases, thus upholding the essence of justice. It
lay s down that irrespective of any provision that has been laid down in any section so far, the
courts enjoy the discretion to take cognizance of an offence and make the proceedings for the
same, provided it is satisfied that the facts and other circumstances of the case are sufficiently
able to explain the cause of such delay.

INHERENT POWERS OF HIGH COURT

Introduction

The object of the criminal law is to punish those who commit offence against society. Our
country’s law of crimes is mainly maintained in Code of Criminal Procedure, 1973 which
came into force from April 1, 1974. It provides for the detection of crime, the collection of
evidence, determination of guilt or innocence of the accused and punishment of the crime. In
addition, this Code also contains sections pertaining to prevention of offences, maintenance
of wives, children and parents, and public nuisance. The Code covers all the provisions
related to crime and its punishment. However, if the court finds that there is no specific
provision dealing with a particular issue it has inherent powers to pass orders which serve
justice.

The Supreme Court has declared that no other courts other than The High Courts have the
inherent powers. These powers are mentioned in Section 482 of Chapter XXXVII of the
Code of Criminal Procedure (hereafter referred to as ‘the Code’).

Black’s law dictionary defines inherent powers as powers over and beyond those explicitly
granted in the Constitution or reasonably to be implied from the express grants.

The principle underlying the inherent jurisdiction is “quando lex aliquid alicui concedit,
concedere videtur ed it sine quo res ipsae esse non protest”[1] i.e. when the law gives
anything to anyone, it gives also all those things without which the thing itself would be
unavailable. The sole purpose of the inherent powers is to do the right and to undo a
wrong.

Section 482 of The Code reads as:

“Saving of inherent power of High Court : 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.

Earlier the provision of inherent powers was maintained under Section 561-A of the Code of
Criminal Procedure, 1898 (hereafter referred to as ‘the Old Code’). The inherent powers of
the High Court preserved by section 561-A of the Old Code are vested in the High Court by
law within the meaning of Article 21 of the Constitution of India. The procedure for invoking
the inherent powers is regulated by rules framed by the High Court and the power to make
such rules is conferred on the High Court by the Constitution[2].

Inherent jurisdiction of High Court under sec 482 of Cr.P.C may be

exercised:
• To give effect to an order under The Code.
• To prevent abuse of the process.
• To otherwise secure the ends of justice.

The exercise of power under Section 482 Cr.P.C is not the rule but an exception[3]. The
inherent power has to be exercised sparingly with circumspection and in the rarest of rare
cases[4].

The Supreme Court has held that the following principles would govern the exercise of the
inherent jurisdiction of the high court given by Section 482:

1. the power is not to have resorted if there is a specific provision in the Code for the
redress of the grievance of the aggrieved party.
2. It should be exercised sparingly to prevent abuse of the process of court or otherwise
to secure the ends of justice.
3. It should not be exercised as against the express bar of the law engrafted in any other
provision of the Code[5].
In State of Haryana v. Bhajan Lal (1992) Supp (1) SCC 335, Supreme Court gave
guidelines stating the instances of a possible occasion where interference of High Court to
quash criminal proceedings is justifiable:

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 entirety do not prima facie
constitute any offence or make out a case against the accused.
2. Where the allegations in F.I.R. and other materials, if any, do not disclose a
cognizable offence, justifying an investigation by police officers except under an
order of a magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the F.I.R. 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 a criminal proceeding is manifestly attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to a private and personal grudge.
Difference between Appeal and Revision, and Inherent powers

Inherent powers of High Court are different from appeal and revision. The power of appeal
and revision has been given to the court by the statute. So, High Court while entertaining
cases under Section 482 cannot treat this power to be a substitute for statutory appeal or
statutory revision[6].

Limitations of Section 482 :

Even though the inherent jurisdiction of the High Court under Section 482 of the Code is
very wide, it 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[7].

• Inherent powers cannot be used as a measure of appeal after conviction.

• High Court does not possess the power to review its judgment.
• Interim order while the petition under Section 482 is still pending cannot declare the
accused to be innocent.
• High Court cannot usurp the jurisdiction of the trial court.
• Inherent powers can be exercised by the High Court only over a court which is
subordinate to it.
CASE LAWS

[1] Minu Kumari v. State of Bihar-2006 4 SCC 359

[2] Ratilal Bhanji v. Assistant Customs Collector, Bombay- AIR 1967 SC 1639

[3] Some Mittal v. Government of Karnataka (2008) 3 SCC 753

[4] R.K. Lakshman v. A.K.Srinivasan and Another AIR 1975 SC 1741

[5] Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47

[6] Dharampal v. Ramshri (1993) 1 SCC 435

[7] State of Karnataka v. Muniswami Air 1977 SCC 1489

@LAW KHABAR