Section 1 To 90

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Documents (100)
1. [s 1] Short title, extent and commencement.—

Client/Matter: -None-
2. [s 2] Definitions.—
3. [s 3] Construction of references.—
4. [s 4] Trial of offences under the Indian Penal Code and other laws.—
5. [s 5] Saving.—
6. [s 6] Classes of Criminal Courts.—
7. [s 7] Territorial divisions.—
8. [s 8] Metropolitan areas.—
9. [s 9] Court of Session.—
10. [s 10] Subordination of Assistant Sessions Judges.—
11. [s 11] Courts of Judicial Magistrates.—
12. [s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.—
13. [s 13] Special Judicial Magistrates.—
14. [s 14] Local Jurisdiction of Judicial Magistrates.—
15. [s 15] Subordination of Judicial Magistrates.—
16. [s 16] Courts of Metropolitan Magistrates.—
17. [s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.—
18. [s 18] Special Metropolitan Magistrates.—
19. [s 19] Subordination of Metropolitan Magistrates.—
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20. [s 20] Executive Magistrates.—
21. [s 21] Special Executive Magistrates.—
22. [s 22] Local Jurisdiction of Executive Magistrates.—
23. [s 23] Subordination of Executive Magistrates.—
24. [s 24] Public Prosecutors.—
25. [s 25] Assistant Public Prosecutors.—
26. [s 25A] Directorate of Prosecution.—
27. [s 26] Courts by which offences are triable.—
28. [s 27] Jurisdiction in the case of juveniles.—
29. [s 28] Sentences which High Courts and Sessions Judges may pass.—
30. [s 29] Sentences which Magistrates may pass.—
31. [s 30] Sentence of imprisonment in default of fine.—
32. [s 31] Sentence in cases of conviction of several offences at one trial.—
33. [s 32] Mode of conferring powers.—
34. [s 33] Powers of officers appointed.—
35. [s 34] Withdrawal of powers.—
36. [s 35] Powers of Judges and Magistrates exercisable by their successors-in-office.—
37. [s 36] Powers of superior officers of police.—
38. [s 37] Public when to assist Magistrates and police.—
39. [s 38] Aid to person, other than police officer, executing warrant.—
40. [s 39] Public to give information of certain offences.—
41. [s 40] Duty of officers employed in connection with the affairs of a village to make certain report.—
42. [s 41] When police may arrest without warrant.—
43. [s 41A] Notice of appearance before police officer.—
44. [s 41B] Procedure of arrest and duties of officer making arrest.—
45. [s 41C] Control room at districts.—
46. [s 41D] Control room at districts.—
47. [s 42] Arrest on refusal to give name and residence.—
48. [s 43] Arrest by private person and procedure on such arrest.—
49. [s 44] Arrest by Magistrate.—
50. [s 45] Protection of members of the Armed Forces from arrest.—
51. [s 46] Arrest how made.—
52. [s 47] Search of place entered by person sought to be arrested.—
53. [s 48] Pursuit of offenders into other jurisdictions.—
54. [s 49] No unnecessary restraint.—
55. [s 50] Person arrested to be informed of grounds of arrest and of right to bail.—
56. [s 50A] Obligation of person making arrest to inform about the arrest, etc., to a nominated person.—
57. [s 51] Search of arrested person.—
58. [s 52] Power to seize offensive weapons.—
59. [s 53] Examination of accused by medical practitioner at the request of police officer.—
60. [s 53A] Examination of person accused of rape by medical practitioner.—
61. [s 54] Examination of arrested person by medical officer.—
62. [s 54A] Identification of person arrested.—
63. [s 55] Procedure when police officer deputes subordinate to arrest without warrant.—
64. [s 55A] Health and safety of arrested person.—
65. [s 56] Person arrested to be taken before Magistrate or officer in charge of police station.—
66. [s 57] Person arrested not to be detained more than twenty-four hours.—
67. [s 58] Police to report apprehensions.—
68. [s 59] Discharge of person apprehended.—
69. [s 60] Power, on escape, to pursue and retake.—
70. [[s 60A] Power, on escape, to pursue and retake.—
71. [s 61] Form of summons.—
72. [s 62] Summons how served.—
73. [s 63] Service of summons on corporate bodies and societies.—
74. [s 64] Service when persons summoned cannot be found.—
75. [s 65] Procedure when service cannot be effected as before provided.—
76. [s 66] Service on Government servant.—
77. [s 67] Service of summons outside local limits.—
78. [s 68] Proof of service in such cases and when serving officer not present.—
79. [s 69] Service of summons on witness by post.—
80. [s 70] Form of warrant of arrest and duration.—
81. [s 71] Power to direct security to be taken.—
82. [s 72] Warrants to whom directed.—
83. [s 73] Warrant may be directed to any person.—
84. [s 74] Warrant directed to police officer.—
85. [s 75] Notification of substance of warrant.—
86. [s 76] Person arrested to be brought before Court without delay.—
87. [s 77] Where warrant may be executed.—
88. [s 78] Warrant forwarded for execution outside jurisdiction.—
89. [s 79] Warrant directed to police officer for execution outside jurisdiction.—
90. [s 80] Procedure on arrest of person against whom warrant issued.—
91. [s 81] Procedure by Magistrate before whom such person arrested is brought.—
92. [s 82] Proclamation for person absconding.—
93. [s 83] Attachment of property of person absconding.—
94. [s 84] Claims and objections to attachment.—
95. [s 85] Release, sale and restoration of attached property.—
96. [s 86] Appeal from order rejecting application for restoration of attached property.—
97. [s 87] Issue of warrant in lieu of, or in addition to, summons.—
98. [s 88] Power to take bond for appearance.—
99. [s 89] Arrest on breach of bond for appearance.—
100. [s 90] Provisions of this Chapter generally applicable to summonses and warrants of arrest.—
[s 1] Short title, extent and commencement.—
K D Gaur: Textbook on The Code of Criminal Procedure, 2nd ed
K D Gaur
K D Gaur: Textbook on The Code of Criminal Procedure, 2nd ed > K D Gaur: Textbook on The Code of
Criminal Procedure, 2nd ed > THE CODE OF CRIMINAL PROCEDURE, 1973 > CHAPTER I
PRELIMINARY
THE CODE OF CRIMINAL PROCEDURE, 1973

CHAPTER I PRELIMINARY
(1) This Act may be called the Code of Criminal Procedure, 1973.
(2) It extends to the whole of India 1.[***]:
Provided that the provisions of this Code, other than those relating to Chapters VIII,
X and XI thereof, shall not apply—
(a) to the State of Nagaland,
(b) to the tribal areas,
but the concerned State Government may, by notification, apply such provisions or any of
them to the whole or part of the State of Nagaland or such tribal areas, as the case may be,
with such supplemental, incidental or consequential modifications, as may be specified in
the notification.
Explanation.—In this section, “tribal areas” means the territories which immediately
before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred
to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the
local limits of the municipality of Shillong.
(3) It shall come into force on the 1st day of April, 1974.
COMMENTS
[s 1.1] Introduction
After drafting a comprehensive Penal Code under the caption Indian Penal Code (45 of) 18602. for the Indian
sub-continent to bring about consistency and uniformity in the substantive criminal law which was in
chaotic condition with conflicting and contradictory decisions on similar points during Mughal period, the
British drafted an adjective law of procedure entitled “Code of Criminal Procedure in 1861 (Act XXV of 1861)
which was subsequently replaced by the Act X of 1872 and Act XV of 1882 respectively. The Act of 1882
Page 2 of 4
for the first time gave a uniform procedure of law to be applied for the whole of British India including
Metropolitan cities of Calcutta, Bombay and Madras in addition to moffusil towns and cities. The Act of
1882 has now been replaced by the Code of Criminal Procedure, 1973 (Act 2 of 1974).
The object of Code of Criminal Procedure is to provide machinery for the determination of guilt of the
accused for committing a particular offence(s) as provided under the Indian Penal Code and to ensure that
no innocent person is victimised. This is based on the principle that let ten accused be set free but one
innocent person may not be punished. The Indian Penal Code and Criminal Procedure Code are complimentary
to each other and are to be read together. Of course, there are certain provisions in the Code of Criminal
Procedure which are of substantive nature, i.e.:
(i) Security for keeping the Peace and for Good Behaviour (Chapter VIII, sections 106 to 124).
(ii) Maintenance of Public Order and Tranquillity (Chapter X, sections 129 to 148).
(A) Unlawful Assemblies (sections 129 to 132).

(B) Public Nuisance (sections 133 to 143).
(C) Urgent cases of Nuisance or Apprehended Danger (sections 144, 144A).
(D) Disputes as to Immovable Property (sections 145 to 148).
(iii) Maintenance Proceedings (Chapter IX, sections 125 to 128).

(iv) Preventive Action of the Police (Chapter XI, sections 144 to 153).
[s 1.2] Nature and Scope of the Code of Criminal Procedure
As stated by the Supreme Court in Popular Muthiah v State,3. the Code of Criminal Procedure (CrPC) is an
exhaustive Code providing a complete machinery to investigate and try cases, appeals against the
judgments. It has provisions at each stage to correct errors, failures of justice and abuse of process under
the supervision and superintendence of the High Court as would be evident from the following:
(i) The Court has the power to direct investigation in cognizable cases under section 156(3) read with
section 190 CrPC.
(ii) A Magistrate can postpone the issue of process and inquire into the case himself under section
202(1) CrPC.
(iii) When a charge-sheet is filed, the Court can refuse to accept the same and to take cognizance of
the offence on the basis of the materials on record. The court can direct further investigation into
the matter.
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(iv) The Magistrate may treat a protest petition as a complaint and proceed to deal therewith in terms
of Chapter XV, CrPC.
(v) Once the case is committed, the Sessions Judge may refer the matter to the High Court.
(vi) In the event, without taking any further evidence, it is found that while passing the order of
commitment, the Magistrate has committed an error in not referring the case of an accused or left
out an accused after evidence is adduced, the court may proceed against a person who was not an
accused provided it appears from the evidence that he should be tried with the accused.
(vii) The Revisional Court during pendency of the trial may exercise its revisional jurisdiction under
section 397 in which case, it may direct further inquiry in terms of section 398 CrPC.
(viii) The revisional powers of the High Court and the Court of Session are pointed out in the Code
separately; from a perusal whereof it would appear that the High Court exercises larger power.
(ix) In the event of any conviction by a Court of Session, an appeal against the conviction would lie to
the High Court. The appellate court exercises the power laid down under section 386 CrPC in
which event it may also take further evidence or direct it to be taken in terms of section 391 CrPC
thereof.
(x) The High Court has inherent power under section 482 CrPC to correct errors of the courts below
and pass such orders as may be necessary to do justice to the parties and/or to prevent the abuse
of process of court. (Para 21)
(xi) The Supreme Court of India established under Article 124 of the Constitution for the whole of India
have wide jurisdiction in all types of cases coming from all States and Union Territories. The
Supreme Court besides having the appellate, revisional and curative jurisdiction also have original
jurisdiction under Article 32 of the Constitution and High Court under Article 226 of the Constitution for
the enforcement of rights conferred under Part III of the Constitution titled “Fundamental Rights”,
guaranteed to the citizens as well as non-citizens visiting country, in case of violation of their basic
human rights by the State vide Article 21 of Constitution4.. Law declared by Supreme Court is
binding on all courts vide Article 141 of the Constitution.
The Supreme Court vide Article 131 of the Constitution has been given original jurisdiction in any dispute:
(a) between the Government of India and one or more States; or

(b) between Government of India and any State or States on one side and one or more States on the
other;
(c) between two or more states.
The Code of Criminal Procedure extends to the whole of India. The Code has come into effect on 1st April,
1974 after receiving the assent of the President of India.
Page 4 of 4
Explanation.—The “Tribal areas” means the territories included in the Tribal areas of Assam before 21st
of January, 1972 as referred in paragraph 20 of Sixth Schedule to the Constitution.
1. The words “except the State of Jammu and Kashmir” omitted by the Jammu and Kashmir Reorganisation Act, 2019, sections 95, 96
and Fifth Sch., Table-1 (w.e.f. 31-10-2019).
2. See K.D. Gaur, Commentary on the Indian Penal Code, (2nd Edn. 2013) Universal Law Publishing Co. Pvt. Ltd., Delhi); Criminal Law Cases
and Materials (8th Edn. 2015) Lexis Nexis. The First General Code of Criminal Procedure came into force in 1861 (Act 25 of 1861) which
was replaced by Act 10 of 1872 and later by Act 5 of 1898, and finally by the Code of Criminal Procedure, 1973 (Act 2 of 1974).
3. Popular Muthiah v State, (2006) 7 SCC 296 : (2006) 3 SCC (Cri) 245 : LNIND 2006 SC 458 , SB Sinha and PP Naolekar, JJ delivered the
judgment.
4. Chairman Railway Board v Chandrima Das, (2002) 2 SCC 465 : AIR 2000 SC 988 : 2000 AIR SCW 649. See KD Gaur Civil Law Cases and
Materials (2015).
End of Document
[s 2] Definitions.—
K D Gaur
PRELIMINARY

In this Code, unless the context otherwise requires,—
(a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or
which is made bailable by any other law for the time being in force; and “non-bailable
offence” means any other offence;
(b) “charge” includes any head of charge when the charge contains more heads than one;
(c) “cognizable offence” means an offence for which, and “cognizable case” means a case in
which, a police officer may, in accordance with the First Schedule or under any other law
for the time being in force, arrest without warrant;
(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view
to his taking action under this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.
Explanation.—A report made by a police officer in a case which discloses, after investigation, the
commission of a non-cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made shall be deemed to be the complainant;
(e) “High Court” means,—
(i) in relation to any State, the High Court for that State;
(ii) in relation to a Union territory to which the jurisdiction of the High Court for a State
has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of criminal appeal for that
territory other than the Supreme Court of India;
Page 2 of 6
(f) “India” means the territories to which this Code extends;

(g) “inquiry” means every inquiry, other than a trial, conducted under this Code by a
Magistrate or Court;
(h) “investigation” includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised
by a Magistrate in this behalf;
(i) “judicial proceeding” includes any proceeding in the course of which evidence is or may
be legally taken on oath;
(j) “local jurisdiction”, in relation to a Court or Magistrate, means the local area within
which the Court or Magistrate may exercise all or any of its or his powers under this Code
5. [and such local area may comprise the whole of the State, or any part of the State, as
the State Government may, by notification, specify];
(k) “metropolitan area” means the area declared, or deemed to be declared, under section 8,
to be a metropolitan area;
(l) “non-cognizable offence” means an offence for which, and “non-cognizable case” means
a case in which, a police officer has no authority to arrest without warrant;
(m) “notification” means a notification published in the Official Gazette;
(n) “offence” means any act or omission made punishable by any law for the time being in
force and includes any act in respect of which a complaint may be made under section 20
of the Cattle-trespass Act, 1871 (1 of 1871);
(o) “officer in charge of a police station” includes, when the officer in charge of the police
station is absent from the station-house or unable from illness or other cause to perform
his duties, the police officer present at the station-house who is next in rank to such
officer and is above the rank of constable or, when the State Government so directs, any
other police officer so present;
(p) “place” includes a house, building, tent, vehicle and vessel;
(q) “pleader”, when used with reference to any proceeding in any Court, means a person
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;
(r) “police report” means a report forwarded by a police officer to a Magistrate under sub-
section (2) of section 173;
(s) “police station” means any post or place declared generally or specially by the State
Government, to be a police station, and includes any local area specified by the State
Government in this behalf;
(t) “prescribed” means prescribed by rules made under this Code;
(u) “Public Prosecutor” means any person appointed under section 24, and includes any
person acting under the directions of a Public Prosecutor;
(v) “sub-division” means a sub-division of a district;
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(w) “summons-case” means a case relating to an offence, and not being a warrant-case;
6. [(wa) “victim” means a person who has suffered any loss or injury caused by reason
of the act or omission for which the accused person has been charged and the expression
“victim” includes his or her guardian or legal heir;]
(x) “warrant-case” means a case relating to an offence punishable with death, imprisonment
for life or imprisonment for a term exceeding two years;
(y) words and expressions used herein and not defined but defined in the Indian Penal Code
(45 of 1860) have the meanings respectively assigned to them in that Code.
COMMENTS
[s 2.1] Introduction
Section 2 is the definition clause and most important part of the Code. The section gives meaning and
definition of important “terms” used in the Code that are adhered to throughout in subsequent chapters.
In Mohd. Yousuf v Afaq Jahan,7. the Supreme Court held that there is no format for a complaint.
Nomenclature is also inconsequential. A petition addressed to the Magistrate containing an allegation that
an offence has been committed, and ending with a prayer that the culprits be suitably dealt with, as in the
instant case, is a complaint. (Paras 15 and 16).
[s 2.2] Investigation
Investigation means all proceedings conducted by a police officer or by any person authorised by
Magistrate. The object of investigation is to collect evidence and all materials, documents, examine
witnesses and make a note of all the statements made by the witnesses, search any places connected with
the commission of crime. Investigation, inquiry and trial are three stages through which a criminal case
travels before a final judgment is delivered.
[s 2.2.1] Flaw in Investigation/Prosecution – No Incriminating Materials Found – Conviction

Quashed
In Dinesh Borthakur v State of Assam,8. the appellant was convicted of murder of his wife and adopted
daughter by poisoning and strangulation. The trial court and High Court convicted the appellant on the
basis that the reaction of the accused was not natural as he did not exhibit his emotion or sadness despite
the fact that a shocking incident had occurred and that the sniffer dog stayed near the accused.
Allowing the appeal, Supreme Court held the circumstantial evidence leading to the guilt of the appellant
not having been established by the prosecution, the judgment of the conviction cannot be sustained. The
prosecution made an attempt to show that the deaths of the victims were caused by administering poison
and/or strangulation. The prosecution in a case of commission of murder by poisoning must bring in
record some evidence linking the accused therewith. The bottle containing pesticide was found in the
washbasin alongwith a glass inside the house. There is nothing on record to show that the appellant had
purchased pesticide or brought it home. No fingerprint of the appellant was taken to show that it was he
who had used the bottle or the glass for the said purpose. No incriminating evidence linking the appellant
Page 4 of 6
in regard to administration of poison/pesticide has been brought on record. A finding of guilt cannot be
based on a presumption. Before arriving at an inference that the appellant has committed an offence,
existence of materials therefore ought to have been found. (Paras 60, 54, 56 and 33)
The prosecution did not bring on record any material to show that the deceased had put up any resistance
when the appellant had allegedly tried to commit the crime. There was no evidence of any mark of
struggle by and between the deceased with the accused. PW 6, in his evidence, in no uncertain terms,
admitted that the scraping of nails taken from the deceased did not correspond to the scraping of skin
taken from the body of the appellant. (Paras 37 and 30)
If the theory that he could have committed the murder within a couple of minutes is ruled out, no
suspicion can be raised that the appellant had committed the crime. It is not the case of the prosecution
that the deceased were last seen in the company of the appellant. Nobody had seen him going inside his
house or coming out at the time of or near about the commission of the crime. The matter might have
been different if some evidence had been introduced to suggest that the offence was committed sometime
between 11.30 a.m. and 4/5.00 p.m. and to infer that he could forcibly administer poison to the deceased
or strangulate them or to do the both so as to cause their deaths. (Paras 48 and 30)
The time-lag between the appellant’s calling PW 1 for the first time and the second time was a few
minutes. The prosecution did not suggest nor has any finding been arrived at that the offence could have
been committed during the said interval. The least the prosecution, in this behalf, could do was to
examine the co-employees of the appellant who had been working in his office to find out as to when he
had reached his office or whether he had left his office at any time prior to 4.00 p.m. No evidence was
also led to bring on record the distance between the house of the appellant and his office. No witness also
deposed in regard to the mode of his travelling. PW 1 was in his house up to 11.30 a.m. It can safely be
inferred from his deposition that he had come back to his residence much prior to the appellant. He had
not noticed any abnormality in the locality. Other witnesses who were the neighbours of the appellant
and/or the shop-owners who have their shops on the other side of the road were also not aware of any
incident before the appellant reached his residence. (Paras 35, 34 and 41)
[s 2.3] Section 2(b) & Chapter XVII (Sections 211 to 224) – “Charge” – Meaning
In State of Uttar Pradesh v Johrimal,9. while defining “charge” Supreme Court said:
The Code of Criminal Procedure does not define what a charge is. It is the precise formulation of the specific accusation made against a
person who is entitled to know its nature at the earliest stage. A charge is not an accusation made or information given in the abstract,
but an accusation made against a person in respect of an act committed or omitted in violation of penal law forbidding or commanding
it. In other words, it is an accusation made against a person in respect of an offence alleged to have been committed by him. A charge is
formulated after inquiry as distinguished from the popular meaning of the word as implying inculpation blame of a person for an
alleged offence as used in section 224 IPC (withdrawal of remaining charges on conviction on one of several charges) resistence or
obstruction by a person to his lawful apprehension.
[s 2.4] Section 2(g) “Trial”, held is distinct from “Inquiry”
In Moly v State of Kerala,10. it was held that it is clear from section 14 of the 1989 Act that it is for trial of
Page 5 of 6
the offences under the Act that a particular Court of Session in each district is sought to be specified as a
Special Court. Though the word “trial” is not defined either in the Code (Code of Criminal Procedure, 1973)
or in the Act, it is clearly distinguishable from inquiry. The word “inquiry” is defined in section 2(g) of the
Code as “every inquiry, other than a trial, conducted under this Code by a Magistrate or court”. So “trial”
is distinct from “inquiry” and inquiry must always be a forerunner to the trial. Thus the Court of Session
is specified to conduct a trial and no other court can conduct the trial of offences under the Act.
Evidently, the legislature wanted the Special Court to be a Court of Session. Hence the particular Court of
Session, even after being specified as a Special Court, would continue to be essentially a Court of Session
and designation of it as a Special Court would not denude it of its character or even powers as a Court of
Session. The trial in such a court can be conducted only in the manner provided in Chapter XVIII of the
Code which contains a fasciculus cluster of provisions for “trial before a Court of Session”. (Paras 9 and
10).
Court has a duty in such cases to separate the grain from the chaff. If after sieving the untruth or
unacceptable portion of the evidence residue is sufficient to prove the guilt of the accused, held, he can be
convicted on the evidence primarily disbelieved vis-a-vis others. It is only when the said separation is not
possible, the evidence can be discarded in toto. Falsus in uno falsus in omnibus (false in one, false in all) –
principle applicable (Para 13)
[s 2.4.1] Purpose and Role of Presiding Judge is the Discovery, Vindication and Establishment of
Truth
The Supreme Court held in Zahira Habibullah Sheikh (5) v State of Gujarat,11. that:
The trial should be a search for the truth and not about over technicalities. Presiding Judge must cease to be a spectator and a mere
recording machine. He must become a participant in the trial evincing intelligence, active interest and eliciting all relevant materials
necessary for reaching the correct conclusion to find out the truth, and administer justice with fairness and impartiality both to the
parties and to the community. Restraints on processes for determining the truth. [Criminal Procedure Code, 1973, sections 391, 311, 386,
231, 242, 244, 233, 243 and 247].
5. Ins. by Act 45 of 1978, sec. 2 (w.e.f. 18-12-1978).
7. (2006) 1 SCC 627 : (2006) 1 SCC (Cri) 460 : AIR 2006 SC 705 : (2006) 1 KLT 939 : (2006) 2 Guj LR 1742 : (2006) 38 AIC 70 (SC) :
2006 Cr LJ 788 , Arijit Pasayat and S.H. Kapadia, JJ delivered the judgment.
Page 6 of 6
8. (2008) 3 SCC 697 : (2008) 3 SCC (Cri) 39 : AIR 2008 SC 2205 : LNIND 2008 SC 675 , S.B. Sinha and Dalveer Bhandari, JJ delivered
the judgment of the Court.
9. (2004) 4 SCC 714 : AIR 2004 3800 : (2004) 3 SLR 734 : (2004) 19 AIC 69 SC : (2004) 3 LLN 13 , V.N. Khare, C.J. and Brij Kumar and
S.B. Sinha, JJ delivered the judgment.
10. (2004) 4 SCC 584 : 2004 SCC (Cri) 1348 : AIR 2004 SC 1890 : 2004 Cr LJ 1812 : LNIND 2004 SC 378 , (Doraiswamy Raju and Arjiit
Pasayat, JJ.) delivered the judgment; see Vidyadharan v State of Kerala, AIR 2004 SC 536 : (2004) 1 SCC 215 : (2004) SCC (Cri) 260 .
11. (2004) 4 SCC 158 : 2004 SCC (Cri) 2004 Cr LJ 2050 : AIR 2004 SC 3114 : LNIND 2004 SC 471 , Doraiswamy Raju and Arijit Pasayat,
JJ delivered the judgment; Pearse v Pearse, (1846) 1 De G & Sm 12 : 63 FR 950 referred to Jennisen v Baker, (1972) 1 All ER 997 : (1972) 2
QB 52 : (1972) 2 WLR 429 (CA), relied on.
End of Document
[s 3] Construction of references.—
K D Gaur
PRELIMINARY

(1) In this Code,—

(a) any reference, without any qualifying words, to a Magistrate shall be construed, unless
the context otherwise requires,—
(i) in relation to an area outside a metropolitan area, as a reference to a Judicial

Magistrate;
(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;
(b) any reference to a Magistrate of the second class shall, in relation to an area outside a
metropolitan area, be construed as a reference to a Judicial Magistrate of the second
class, and, in relation to a metropolitan area, as a reference to a Metropolitan
Magistrate;
(c) any reference to a Magistrate of the first class shall,—
(i) in relation to a metropolitan area, be construed as a reference to a Metropolitan

Magistrate exercising jurisdiction in that area;
(ii) in relation to any other area, be construed as a reference to a Judicial Magistrate of
the first class exercising jurisdiction in that area;
(d) any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area,
be construed as a reference to the Chief Metropolitan Magistrate exercising
jurisdiction in that area.
(2) In this Code, unless the context otherwise requires, any reference to the Court of a
Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to
the Court of the Metropolitan Magistrate for that area.
(3) Unless the context otherwise requires, any reference in any enactment passed before the
commencement of this Code,—
Page 2 of 5
(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial

Magistrate of the first class;
(b) to a Magistrate of the second class or of the third class, shall be construed as a
reference to a Judicial Magistrate of the second class;
(c) to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a
reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan
Magistrate;
(d) to any area which is included in a metropolitan area, as a reference to such
metropolitan area, and any reference to a Magistrate of the first class or of the second
class in relation to such area, shall be construed as a reference to the Metropolitan
Magistrate exercising jurisdiction in such area.
(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate
relate to matters—
(a) which involve the appreciation or shifting of evidence or the formulation of any
decision which exposes any person to any punishment or penalty or detention in
custody pending investigation, inquiry or trial or would have the effect of sending him
for trial before any Court, they shall, subject to the provisions of this Code, be
exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the
suspension or cancellation of a licence, sanctioning a prosecution or withdrawing
from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive
Magistrate.
[s 3.1] State Amendments
Section 3
Arunachal Pradesh, Mizoram and Meghalaya:
In section 3, after sub-section (4), insert the following sub-section, namely:—
(5) Notwithstanding anything contained in the foregoing provisions of this section,—
(i) any reference in such of the provisions of this Code, as applied to the Union territories of
Arunachal Pradesh and Mizoram, to the Courts mentioned in Column (1) of the Table below
shall, until the Courts of Session and Courts of Judicial Magistrate are constituted in the said
Union territories be construed as references to the Court of Magistrate mentioned in the
corresponding entry in Column (2) of that Table.
Page 3 of 5
TABLE
1 2
Court of Session or Sessions Judge or Chief District Magistrate.
Magistrate or Magistrate of the First Class or Judicial Magistrate of the Judicial Magistrate.
First Class.
Executive Magistrate.
(ii) the functions mentioned in clause (a) of sub-section (4) shall be exercisable by an Executive
Magistrate.
[Vide Notification No. Jud. 25/74, dated 2 April 1974.]
Nagaland:
In section 3, after sub-section (4), insert the following sub-section which shall be deemed always to have
been so:—
(5) Notwithstanding anything contained in the foregoing provisions of this section,—
(i) any reference in such of the provisions of this Code, as applied to the State of Nagaland to the
Court and authority mentioned in Column (1) of the Table below shall, until the Courts of
Session and Courts of Judicial Magistrates are constituted in the said areas, be construed as
references to the Court and authority mentioned in the corresponding entry in Column (2) of that
Table.
1 2
Court of Session or Sessions Judge or Chief Judicial Magistrate. District Magistrate or Additional
Magistrate or Magistrate of the first class or Judicial Magistrate of the District Magistrate.
first class.
Executive Magistrate.
Page 4 of 5
(ii) references mentioned in sub-section (3) to a Judicial Magistrate and functions mentioned in sub-
section (4) exercisable by a Judicial Magistrate and Executive Magistrate shall be construed as
references to, and exercised by, Deputy Commissioner and Additional Deputy Commissioner and
Assistant to Deputy Commissioner appointed under any law in force:
Provided that an Assistant to Deputy Commissioner shall exercise such powers of a Judicial Magistrate as
may be invested by the Governor.
[Vide Nagaland Gazette, Extra., No. 15, dated 19 June 1975.]
Section 3A
Andaman and Nicobar Islands (U.T.)
(1) After section 3, the following section shall be inserted, namely:—
“3A. Special provision relating to Andaman and Nicobar Islands.—(1) References in this Code to—
(a) The Chief Judicial Magistrate shall be construed as references to the District Magistrate or, where
the State Government so directs, also to the Additional District Magistrate;
(b) a Magistrate or Magistrate of the first class or of the second class or Judicial Magistrate of the first
class or of the second class, shall be construed as references to such Executive Magistrate as the
State Government may, by notification in the Official Gazette, specify.
(2) The State Government may, if it is of opinion that adequate number of persons are available for
appointment as Judicial Magistrate, by notification in the Official Gazette, declare that the provisions of
this section shall, on and from such day as may be specified in the notification, cease to be in force and
different dates may be specified for different Islands.
(3) On the cesser of operation of the provisions of this section every inquiry or trial pending, immediately
before such cesser, before the District Magistrate or Additional District Magistrate or any Executive
Magistrate, as the case may be, shall stand transferred, and shall be dealt with, from the stage which was
reached before, such cesser, by such Judicial Magistrate as the State Government may specify in this
behalf.
Page 5 of 5
[Regulation 1 of 1974, section 3 (w.e.f. 30-3-1974).]
COMMENTS
Section 3 in sub-section (1) clauses (a), (b), (c) and (d) relate to Construction of reference to Metropolitan
area, Chief Judicial Magistrate and Courts of Judicial Magistrate and Executive Magistrates.
This section relates to an important provisions regarding separation of Judiciary from executive. Chapter
in details provides for separation and functions of Judicial and Executive Magistrates.
End of Document
[s 4] Trial of offences under the Indian Penal Code and other laws.—
K D Gaur
PRELIMINARY

[s 4] Trial of offences under the Indian Penal Code and other laws.—
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into,
tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise
dealt with according to the same provisions, but subject to any enactment for the time
being in force regulating the manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.
COMMENTS
Section 4 sub-section (1) provides for all offences provided under the Indian Penal Code to be investigated,
inquired and tried according to provisions contained under the Code of Criminal Procedure, 1973. Sub-section
(2) also provides for investigation, inquiry and trial of offences dealt with according to the procedure laid
down under the Code of Criminal Procedure, 1973.
End of Document
[s 5] Saving.—
K D Gaur
PRELIMINARY

[s 5] Saving.—
Nothing contained in this Code shall, in the absence of a specific provision to the contrary,
affect any special or local law for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other law for the time being in
force.
COMMENTS
Section 5 is a saving clause in respect of trial in regard to any other law for which any specific procedure
has been provided. For instance, in case of trial with offences relating to Customs Act, 1962 conferring
powers on custom authority to confiscate certain goods prohibited by law. In such cases special procedure
will apply other than provided under the Code of Criminal Procedure.12.
[s 5.1] Special Procedure
The power of the High Court and Supreme Court to institute proceedings in respect of contempt of court
summarily and adopt its own procedure. In a 2014 case of an advocate who threw ink on the face of
Subrat Roy Sahare in the Court premises when he was going to attend the Court. The concerned advocate
was punished for contempt of court by the Supreme Court.
12. Officer in-charge, Customs v Minati Biswas, 1982 Cr LJ 1311 : 1982 (1) Cal HN 322 : 1982 Cal WN 853 (Cal).
End of Document
[s 6] Classes of Criminal Courts.—
K D Gaur
Criminal Procedure, 2nd ed > THE CODE OF CRIMINAL PROCEDURE, 1973 > CHAPTER II
CONSTITUTION OF CRIMINAL COURTS AND OFFICES

CHAPTER II CONSTITUTION OF CRIMINAL COURTS AND OFFICES
Besides the High Courts and the Courts constituted under any law, other than this Code, there
shall be, in every State, the following classes of Criminal Courts, namely:—
(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan
Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
COMMENTS
Chapter II in sections 6 to 25A provide for Constitution and establishment of different categories of
Criminal Courts to try criminal cases within the specific jurisdiction of the operation.
Section 6 states that besides High Court and Courts constituted under any law, other than the Code of
Criminal Procedure, 1973, Supreme Court and High Court may also deal with certain criminal cases when
infringement of fundamental rights guaranteed under Part III of Constitution is involved.
Section 6 states that in every State there shall be four categories of Courts to try criminal cases. These are:
(1) Court of Session;

(2) Judicial Magistrates of First Class and Metropolitan Magistrates in Metropolitan areas;
(3) Judicial Magistrates of Second Class; and
(4) Executive Magistrates.
Page 2 of 2
End of Document
[s 7] Territorial divisions.—
K D Gaur

[s 7] Territorial divisions.—
(1) Every State shall be a sessions division or shall consist of sessions divisions; and every
sessions division shall, for the purposes of this Code, be a district or consist of districts:
Provided that every metropolitan area shall, for the said purposes, be a separate
sessions division and district.
(2) The State Government may, after consultation with the High Court, alter the limits or the
number of such divisions and districts.
(3) The State Government may, after consultation with the High Court, divide any district
into sub-divisions and may alter the limits or the number of such sub-divisions.
(4) The sessions divisions, districts and sub-divisions existing in a State at the
commencement of this Code, shall be deemed to have been formed under this section.
COMMENTS
It is within the domain of the State Government to constitute Sessions Court in every district or part of
the district depending on the work load of the cases in consultation with the High Court concerned. A
district may be divided into Sessions divisions depending upon the requirement of the place.
End of Document
[s 8] Metropolitan areas.—
K D Gaur

(1) The State Government may, by notification, declare that, as from such date as may be
specified in the notification, any area in the State comprising a city or town whose
population exceeds one million shall be a metropolitan area for the purposes of this Code.
(2) As from the commencement of this Code, each of the Presidency-towns of Bombay,
Calcutta and Madras and the city of Ahmedabad shall be deemed to be declared under
sub-section (1) to be a metropolitan area.
(3) The State Government may, by notification, extend, reduce or alter the limits of a
metropolitan area but the reduction or alteration shall not be so made as to reduce the
population of such area to less than one million.
(4) Where, after an area has been declared, or deemed to have been declared to be, a
metropolitan area, the population of such area falls below one million, such area shall, on
and from such date as the State Government may, by notification, specify in this behalf,
cease to be a metropolitan area; but notwithstanding such cesser, any inquiry, trial or
appeal pending immediately before such cesser before any Court or Magistrate in such
area shall continue to be dealt with under this Code, as if such cesser had not taken place.
(5) Where the State Government reduces or alters, under sub-section (3), the limits of any
metropolitan area, such reduction or alteration shall not affect any inquiry, trial or appeal
pending immediately before such reduction or alteration before any Court or Magistrate,
and every such inquiry, trial or appeal shall continue to be dealt with under this Code as if
such reduction or alteration had not taken place.
Explanation.—In this section, the expression “population” means the population as

ascertained at the last preceding census of which the relevant figures have been
published.
[s 8.1] State Amendment
Delhi:
Page 2 of 3
In section 8.—
(a) in sub-section (1), for the words “a city or town”, substitute the words “a city or town or part
thereof”;
(b) for sub-section (3), substitute the following sub-section, namely:—
(3) The State Government may, by notification divide a metropolitan area into two or more
such areas or extend or reduce or alter the limits of a metropolitan area:
Provided that—
(a) the division of metropolitan area shall not be so made as to result in the population of any of
the areas into which it has been divided being less than one million; and
(b) the reduction or alteration of metropolitan area shall not be so made as to reduce the
population of such area to less than one million.
(c) after sub-section (4), the following sub-section shall be inserted, namely:—
(4A) Where any metropolitan area is divided under sub-section (3), the High Court may issue
such directions as it deems fit with respect to the disposal of the proceedings pending
immediately before such division before any Magistrate or court having jurisdiction in respect
of such area.
[Vide the Code of Criminal Procedure (Delhi Amendment) Act, 2011 (Delhi Act 09 of 2011), section 2.]
COMMENTS
Section 8 empowers the State Government to declare by notification any area having population of more
than one million to be a Metropolitan area. In case the population of the area ceases to be less than one
million, the area will also cease to be metropolitan area.
Page 3 of 3
Explanation clause states that population is determined on the basis of last preceding census of which the
relevant figures have been published.
End of Document
[s 9] Court of Session.—
K D Gaur

(1) The State Government shall establish a Court of Session for every sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High
Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions
Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the High Court to be
also an Additional Sessions Judge of another division, and in such case he may sit for the
disposal of cases at such place or places in the other division as the High Court may
direct.
(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements
for the disposal of any urgent application which is, or may be, made or pending before
such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no
Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions
division; and every such Judge or Magistrate shall have jurisdiction to deal with any such
application.
(6) The Court of Sessions shall ordinarily hold its sitting at such place or places as the High
Court may, by notification, specify; but, if, in any particular case, the Court of Session is
of opinion that it will tend to the general convenience of the parties and witnesses to hold
its sittings at any other place in the sessions division, it may, with the consent of the
prosecution and the accused, sit at that place for the disposal of the case or the
examination of any witness or witnesses therein.
Explanation.—For the purposes of this Code, “appointment” does not include the
first appointment, posting or promotion of a person by the Government to any Service,
or post in connection with the affairs of the Union or of a State, where under any law,
such appointment, posting or promotion is required to be made by Government.

Page 2 of 4
Orissa:
In section 9, sub-section (3), add the following proviso, namely:—
Provided that notwithstanding anything to the contrary contained in this Code, an Additional Sessions Judge in a district or sub-
division, other than the district or sub-division, by whatever name called, wherein the head quarters of the Sessions Judge are situated,
exercising jurisdiction in a Court of Sessions shall have all the powers of the Sessions Judge under this Code, in respect of the cases and
the proceedings in the Criminal Courts in that district or sub-division for the purposes of sub-section (7) of section 116, sections 193
and 194, clause (a) of section 209 and sections 409 and 449:
Provided further that the above powers shall not be in derogation of the powers otherwise exercisable by an Additional Sessions Judge
or a Sessions Judge under this Code.
[Vide Orissa Act 6 of 2004, section 2.]
Uttar Pradesh:
(5A) In the event of the death, resignation, removal or transfer of the Sessions Judge, or of his being incapacitated by illness or
otherwise for the performance of his duties, or of his absence from the place at which his Court is held, the senior most among the
Additional Sessions Judges, and the Assistant Sessions Judges present at the place, and in their absence the Chief Judicial Magistrate
shall without relinquishing his ordinary duties assume charge of the office of the Sessions Judge and continue in charge thereof until the
office is resumed by the sessions judge or assumed by an officer appointed thereto, and shall subject to the provision of this Code and
any rules made by the High Court in this behalf, exercise any of the powers of the Sessions Judge.
[Vide Uttar Pradesh Act 1 of 1984, section 2 (w.e.f. 1-5-1984).]
In section 9, to sub-section (6), insert the following proviso, namely:—
Provided that the Court of Session may hold, or the High Court may direct the Court of Session to hold its sitting in any particular case
Page 3 of 4
at any place in the Sessions Division, where it appears expedient to do so for considerations of internal security or public order, and in
such cases, the consent of the prosecution and the accused shall not be necessary.
[Vide Uttar Pradesh Act 16 of 1976, section 2 (w.r.e.f. 28-11-1975).]
West Bengal:
In section 9, to sub-section (3), add the following provisos, namely:—
Provided that notwithstanding anything to the contrary contained in this Code, an Additional Sessions Judge in a sub-division, other
than the sub-division, by whatever name called, wherein the headquarters of the Sessions Judges are situated, exercising jurisdiction in a
Court of Session, shall have all the powers of the Sessions Judge under this Code, in respect of the cases and proceedings in the
Criminal Courts in that sub-division, for the purposes of sub-section (7) of section 116, sections 193 and 194, clause (a) of section 209
and sections 409, 439 and 449:
Provided further that the above powers shall not be in derogation of the powers otherwise exercisable by an Additional Sessions Judge
or a Sessions Judge under this Code.
[Vide West Bengal Act 24 of 1988, section 3.]
COMMENTS
[s 9.2] Court of Session
Section 9 empowers the State Government to establish a Court of Session division which will be presided
over by a Judge appointed by the High Court of the concerned State for a particular division or divisions.
High Court may also appoint Additional as well as Assistant Sessions Judges depending on the
requirement of the particular Sessions Division taking into consideration work load of the Sessions
Division. Every Session Division shall be presided over by a presiding Judge.
[s 9.3] Presiding Judge – Purpose of and Role – Held, is the discovery, and vindication and
establishment of truth
In Zahira Habibullah Sheikh v State of Gujarat,1. the Supreme Court held, the trial should be a search for the
Page 4 of 4
truth and not about over technicalities. Presiding Judge must cease to be a spectator and a mere recording
machine. He must become a participant in the trial evincing intelligence, active interest and eliciting all
relevant materials necessary for reaching the correct conclusion to find out the truth, and administer
justice with fairness and impartiality both to the parties and to the community.
Right from the inception of the judicial system it has been accepted that discovery, vindication and
establishment of truth are the main purposes underlying the existence of the courts of justice. Restraints
on the processes for determining the truth are multifaceted. They have emerged in numerous different
ways, at different times and affect different areas of the conduct of legal proceedings. (Paras 30 and 32)
A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment
on an issue as to a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof
of such facts at which the prosecution and the accused have arrived by their pleadings: the controlling
question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict
the guilty and protect the innocent, the trial should be a search for the truth and not about over
technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty.
If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to
be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence,
active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the
truth, and administer justice with fairness and impartiality both to the parties and to the community it
serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive
conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk
of undermining the fair name and standing of the judges as impartial and independent adjudicators. (Paras
37 and 35)
The courts have always been considered to have an overriding duty to maintain public confidence in the
administration of justice – often referred to as the duty to vindicate and uphold the “majesty of the law.”
Due administration of justice has always been viewed as a continuous process, not confined to
determination of the particular case, protecting its ability to function as a court of law in the future as in
the case before it. (Para 135)
1. (2006) 3 SCC 374 : (2006) 2 SCC (Cri) 8 : AIR 2006 SC 1367 : (2006) 2 KLT 350 : 2006 Cr LJ 1694 : LNIND 2006 SC 168 .
End of Document
[s 10] Subordination of Assistant Sessions Judges.—
K D Gaur

[s 10] Subordination of Assistant Sessions Judges.—
(1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court
they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to
the distribution of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provision for the disposal of any urgent application, in
the event of his absence or inability to act, by an Additional or Assistant Sessions Judge,
or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate,
and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any
such application.
COMMENTS
All Assistant Sessions Judges work under the Sessions Judge of the District and work under their control
and directions. The Sessions Judge may also make provision for disposal of urgent cases on priority basis.
End of Document
[s 11] Courts of Judicial Magistrates.—
K D Gaur

(1) In every district (not being a metropolitan area), there shall be established as many
Courts of Judicial Magistrates of the first class and of the second class, and at such
places, as the State Government may, after consultation with the High Court, by
notification, specify:
2. [Provided that the State Government may, after consultation with the High Court,
establish, for any local area, one or more Special Courts of Judicial Magistrates of the
first class or of the second class to try any particular case or particular class of cases,
and where any such Special Court is established, no other Court of Magistrate in the
local area shall have jurisdiction to try any case or class of cases for the trial of which
such Special Court of Judicial Magistrate has been established.]
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The High Court may, whenever it appears to it to be expedient or necessary, confer the
powers of a Judicial Magistrate of the first class or of the second class on any member of
the Judicial Service of the State, functioning as a Judge in a Civil Court.
Andaman and Nicobar Islands, Dadra and Nagar Haveli and Lakshadweep:
In section 11, in sub-section (3), for the words “any member of the Judicial Service of the State,
functioning as a Judge in a Civil Court”, substitute the words “any person discharging the functions of a
Civil Court”.
[Vide Regulation 1 of 1974, section 4 (w.e.f. 30-3-1974).]
Bihar:
Page 2 of 5
(4) The State Government may likewise establish for any local area one or more Courts of Judicial Magistrate of the first class or second
class to try any particular cases of particular class or categories of cases.
[Vide Bihar Act 8 of 1977, section 2 (w.e.f. 10-1-1977).]
Haryana:
(1A) The State Government may likewise establish as many Courts of Judicial Magistrate of the first class and of the second class in
respect to particular cases or particular class or classes of cases, or to cases generally in any local area.
[Vide Haryana Act 16 of 1976, section 2 (w.e.f. 24-2-1976).]
Kerala:
(1) In section 11, after sub-section (1), insert the following sub-section, namely:—
(1A) The State Government may likewise establish as many Special Courts of Judicial Magistrate of First Class in respect to particular
cases or to a particular class or particular classes of cases or in regard to cases generally, in any local area.
The amendments made by sub-section (1) shall be, and shall be deemed to have been, in force for the period commencing from the 2nd
day of December, 1974 and ending with the 18th day of December, 1978.
Page 3 of 5
Validation.—Any notification issued by the State Government on or after the 2nd day of December, 1974 and before the
commencement of the Code of Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978) purporting to establish any Special
Court of the Judicial Magistrate of the first class having jurisdiction over more than one district shall be deemed to have been issued
under section 11 of the said code as amended by this Act and accordingly such notification issued and any act or proceeding done or
taken or purporting to have been done or taken by virtue of it shall be deemed to be and always to have been valid.
[Vide Kerala Act 21 of 1987, sections 2 and 3 (w.e.f. 2-12-1987).]
Punjab:
(1A) The State Government may likewise establish as many Courts of Judicial Magistrate of the first class in respect to particular cases
or to particular classes of cases, or in regard to cases generally, in any local area.
[Vide Punjab Act 9 of 1978, section 2 (w.e.f. 14-4-1978).]
Rajasthan:
respect to particular cases, or to a particular class or particular classes of cases, or in regard to cases generally, in any local area.
[Vide Rajasthan Act 10 of 1977, section 2 (w.e.f. 13-9-1977).]
Uttar Pradesh:
Page 4 of 5
respect to particular cases, or to a particular class or particular classes of cases, or in regard to cases generally, in any local area.
COMMENTS
According to section 11 State Government is empowered to establish in every District as many Courts of
Judicial Magistrates of the First Class or Second Class as the High Court considers appropriate vide a
notification to this effect.
Further, according to proviso to sub-section (1) to section 113. Special Court may be established in
consultation with the High Court of the State. For instance in Mohd. Aslam v State of Uttar Pradesh,4. it was
held that establishment of Special Court vide notification issued by the State in consultation with High
Court for trial of cases relating to demolition of disputed structure i.e. Ram Janm Bhumi/Babri Masjid,
(Crime No. 197) by establishing Special Court Judicial Magistrate at Lucknow is not invalid for court of
jurisdiction simply because Crime No. 198 was not mentioned. The mistake was rectified subsequently by
amendment notification by the State Government. While dismissing the Special leave application as well
as Review petition that amendment notification was invalid, the apex court held:
[T]here is no error apparent on the face of the record, nor do the facts and circumstances warrant Supreme Court’s interference with its
earlier order. Review petition is without merit. Though Single Judge of High Court observed that the mistake in issuing the amendment
notification could be rectified, it is for the State Government to take appropriate steps in the matter, if it so desires.
2. Added by Act 45 of 1978, sec. 3 (w.e.f. 18-12-1978).
3. Courts of Judicial Magistrate: Proviso to section provided that the State Government may, after consultation with the High Court,
establish, for any local area one or more Special Courts of Judicial Magistrate.
4. Mohd. Aslam v State of Uttar Pradesh, (2007) 12 SCC 667 : AIR 2007 SC 1901 : (2007) 4 All LJ 319 : 2007 Cr LJ 3200 : LNIND 2007 SC
370 , K.G. Balakrishnan, C.J. and G.P. Mathur and R.V. Raveechandran, JJ delivered the judgment.
Page 5 of 5
End of Document
[s 12] Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.—
K D Gaur

(1) In every district (not being a metropolitan area), the High Court shall appoint a Judicial
Magistrate of the first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional
Chief Judicial Magistrate, and such Magistrate shall have all or any of the powers of a
Chief Judicial Magistrate under this Code or under any other law for the time being in
force as the High Court may direct.
(3)
(a) The High Court may designate any Judicial Magistrate of the first class in any sub-
division as the Sub-divisional Judicial Magistrate and relieve him of the
responsibilities specified in this section as occasion requires.
(b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional
Judicial Magistrate shall also have and exercise, such powers of supervision and
control over the work of the Judicial Magistrates (other than Additional Chief Judicial
Magistrates) in the sub-division as the High Court may, by general or special order,
specify in this behalf.
Nagaland:
In section 12, in sub-sections (1), (2) and (3), for the words “High Court”, substitute the words “State
Government” wherever they occur.
[Vide Notification Law 170/74 Leg., dated 3 July 1975.]
Uttar Pradesh:
Page 2 of 2
(4) Where the office of the Chief Judicial Magistrate is vacant or he is incapacitated by illness, absence or otherwise for the performance
of his duties, the senior-most among the Additional Chief Judicial Magistrates and other Judicial Magistrates present at the place, and in
their absence the District Magistrate and in his absence the senior-most Executive Magistrate shall dispose of the urgent work of the
Chief Judicial Magistrate.
COMMENTS
[s 12.2] Scope
The section provides for appointment of Chief Judicial, Additional and Assistant Judicial Magistrates
depending on the requirement taking into consideration number of cases for disposal.
End of Document
[s 13] Special Judicial Magistrates.—
K D Gaur

(1) The High Court may, if requested by the Central or State Government so to do, confer
upon any person who holds or has held any post under the Government, all or any of the
powers conferred or conferrable by or under this Code on a Judicial Magistrate 5. [of the
first class or of the second class, in respect to particular cases or to particular classes of
cases, in any local area, not being a metropolitan area]:
Provided that no such power shall be conferred on a person unless he possesses such
qualification or experience in relation to legal affairs as the High Court may, by rules,
specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for
such term, not exceeding one year at a time, as the High Court may, by general or special
order, direct.
6. [(3) The High Court may empower a Special Judicial Magistrate to exercise the powers of
a Metropolitan Magistrate in relation to any metropolitan area outside his local
jurisdiction.]
Andhra Pradesh:
In section 13,—
(a) in sub-section (2), for the words “not exceeding one year at a time”, substitute the words “not
exceeding two years at a time”.
(b) to sub-section (2), add the following proviso, namely:—
Page 2 of 2
Provided that any person who is holding the office of Special Judicial Magistrate at the commencement of
the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992 and has not completed sixty-five
years of age shall continue to hold office for a term of two years from the date of his appointment.
[Vide Andhra Pradesh Act 2 of 1992, section 2 (w.e.f. 10-4-1992).]
COMMENTS
[s 13.2] Special Judicial Magistrate
The High Court of a State may on request of either State or Central Government confer on any person
power of a Judicial Magistrate of First Class or Second Class as per requirement of the District concerned.
5. Subs. by Act 45 of 1978 sec. 4(i), for certain words (w.e.f. 18-12-1978).
6. Ins. by Act 45 of 1978, sec. 4(ii) (w.e.f. 18-12-1978).
End of Document
[s 14] Local Jurisdiction of Judicial Magistrates.—
K D Gaur

(1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to
time, define the local limits of the areas within which the Magistrates appointed under
section 11 or under section 13 may exercise all or any of the powers with which they may
respectively be invested under this Code:
7.[Provided that the Court of a Special Judicial Magistrate may hold its sitting at any
place within the local area for which it is established.]
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every
such Magistrate shall extend throughout the district.
8. [(3) Where the local jurisdiction of a Magistrate, appointed under section 11 or section 13 or
section 18, extends to an area beyond the district, or the metropolitan area, as the case
may be, in which he ordinarily holds Court, any reference in this Code to the Court of
Session, Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation
to such Magistrate, throughout the area within his local jurisdiction, be construed, unless
the context otherwise requires, as a reference to the Court of Session, Chief Judicial
Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction
in relation to the said district or metropolitan area.]
Section 14A
Maharashtra:
After section 14, insert the following section, namely:—

Page 2 of 2
14A. Investing Judicial Magistrates with jurisdiction in specified cases of local area.—The High Court may invest any Judicial Magistrate with all or
any of the powers conferred or conferable by or under this Code upon a Judicial Magistrate in respect to particular cases or to a
particular class or classes of cases, or in regard to cases generally, in any local area, consisting of all or any of the districts specified by it
in this behalf.
[Vide Maharashtra Act 23 of 1976, section 2 (w.e.f. 10-6-1976).]
COMMENTS
The High Court may confer powers and jurisdiction within which the Judicial Magistrate will act in
accordance with the provisions of the Code.
Sub-section (3) of section 14 states that a Magistrate appointed under section 11 or section 13 of the Code
may exercise jurisdiction beyond the local limits of district or metropolitan area in which he ordinarily
holds the Court.
7. Added by Act 45 of 1978 sec. 5(a) (w.e.f. 18-12-1978).
8. Ins. by Act 45 of 1978, sec. 5(b) (w.e.f. 18-12-1978).
End of Document
[s 15] Subordination of Judicial Magistrates.—
K D Gaur

(1) Every Chief Judicial Magistrate shall be subordinate to the Sessions Judge; and every
other Judicial Magistrate shall, subject to the general control of the Sessions Judge, be
subordinate to the Chief Judicial Magistrate.
(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Judicial
Magistrates subordinate to him.
Bihar:
(3) Any judicial Magistrate exercising powers over any local area extending beyond the district in which he holds his Court, shall be
subordinate to the Chief Judicial Magistrate of the said district and reference in this Code to the Sessions Judge shall be deemed to be
reference to the Sessions Judge of that district where he holds his Court.
COMMENTS
Page 2 of 2
All Judicial Magistrate of First Class or Second Class shall be subordinate to the Sessions Judge and will
act under his control and direction. The Chief Judicial Magistrates may make rules from time-to-time for
the distribution of business from time-to-time among the Judicial Magistrates subordinate to him.
End of Document
[s 16] Courts of Metropolitan Magistrates.—
K D Gaur

(1) In every metropolitan area, there shall be established as many Courts of Metropolitan
Magistrates, and at such places, as the State Government may, after consultation with the
High Court, by notification, specify.
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the
metropolitan area.
Uttar Pradesh:
(4) Where the office of the Chief Metropolitan Magistrate is vacant or he is incapacitated by illness, absence or otherwise for the
performance of his duties, the senior most among the Additional Chief Metropolitan Magistrates and other Metropolitan Magistrates
present at the place, shall dispose of the urgent work of the Chief Metropolitan Magistrate.

Page 2 of 2
COMMENTS
In every metropolitan area number of Metropolitan Magistrates may be appointed at different places
considering the need and requirement of the place taking into account work load of cases. The presiding
officers of such Courts shall be appointed by the High Court and jurisdiction and powers of every
Metropolitan Magistrate shall extend throughout the Metropolitan area.
End of Document
[s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan
Magistrate.—
K D Gaur

[s 17] Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.—
(1) The High Court shall, in relation to every metropolitan area within its local jurisdiction,
appoint a Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such
metropolitan area.
(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief
Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a
Chief Metropolitan Magistrate under this Code or under any other law for the time being
in force as the High Court may direct.
COMMENTS
The High Court may appoint Chief, Additional Chief Metropolitan Magistrate for such Metropolitan area.
Magistrate shall have all or any of the powers conferred under the Code of Criminal Procedure or any other
law for the time being.
End of Document
[s 18] Special Metropolitan Magistrates.—
K D Gaur

(1) The High Court may, if requested by the Central or State Government so to do, confer
upon any person who holds or has held any post under the Government, all or any of the
powers conferred or conferrable by or under this Code on a Metropolitan Magistrate, in
respect to particular cases or to particular classes of cases 9. [***] in any metropolitan
area within its local jurisdiction:
Provided that no such power shall be conferred on a person unless he possesses such
qualification or experience in relation to legal affairs as the High Court may, by rules,
specify.
(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed
for such term, not exceeding one year at a time, as the High Court may, by general or
special order, direct.
10. [(3)The High Court or the State Government, as the case may be, may empower any
Special Metropolitan Magistrate to exercise, in any local area outside the metropolitan
area, the powers of a Judicial Magistrate of the first class.]
Andhra Pradesh:
In section 18,—
(a) in sub-section (2), for the words, “not exceeding one year at a time”, substitute the words “not
exceeding two years at a time”.
(b) to sub-section (2), add the following proviso, namely:—
Page 2 of 2
Provided that a person who is holding the office of Special Metropolitan Magistrate at the
commencement of the Code of Criminal Procedure (Andhra Pradesh Amendment) Act, 1992, and has not
completed sixty-five years of age shall continue to hold office for a term of two years from the date of his
appointment.
[Vide Andhra Pradesh Act 2 of 1992, section 3.]
Maharashtra:
In section 18, in sub-section (1), for the words “in any metropolitan area”, substitute the words “in one or
more metropolitan areas”.
[Vide Maharashtra Act 23 of 1976, section 3 (w.e.f. 10-6-1976).]
COMMENTS
[s 18.2] Special Metropolitan Magistrate
The High Court on request of either State or Central Government confer on any person who holds or has
held any post under the Government all or any of the powers conferred or conferrable by or under this
Code. Such Magistrate shall be called Special Metropolitan Magistrate. Such Special Magistrate may be
given power to exercise jurisdiction outside the metropolitan area of the power of Judicial Magistrate of
First Class.
9. The words “or to cases generally” omitted by Act 45 of 1978, sec. 6(i) (w.e.f. 18-12-1978).
10. Subs. by Act 45 of 1978 sec. 6(ii), for sub-section (3) (w.e.f. 18-12-1978).
End of Document
[s 19] Subordination of Metropolitan Magistrates.—
K D Gaur

[s 19] Subordination of Metropolitan Magistrates.—
(1) The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate
shall be subordinate to the Sessions Judge; and every other Metropolitan Magistrate shall,
subject to the general control of the Sessions Judge, be subordinate to the Chief
Metropolitan Magistrate.
(2) The High Court may, for the purposes of this Code, define the extent of the
subordination, if any, of the Additional Chief Metropolitan Magistrates to the Chief
(3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special
orders, consistent with this Code, as to the distribution of business among the
Metropolitan Magistrates and as to the allocation of business to an Additional Chief
COMMENTS
The Chief Metropolitan Magistrate and Additional Metropolitan Magistrate shall be subordinate to the
Sessions Judge and every other Metropolitan Magistrate shall be subordinate to the Chief Judicial
Magistrate.
End of Document
[s 20] Executive Magistrates.—
K D Gaur

(1) In every district and in every metropolitan area, the State Government may appoint as
many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to
be the District Magistrate.
(2) The State Government may appoint any Executive Magistrate to be an Additional District
Magistrate, and such Magistrate shall have 11.[such] of the powers of a District
Magistrate under this Code or under any other law for the time being in force 12.[, as may
be directed by the State Government].
(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any
officer succeeds temporarily to the executive administration of the district, such officer
shall, pending the orders of the State Government, exercise all the powers and perform all
the duties respectively conferred and imposed by this Code on the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub-division and
may relieve him of the charge as occasion requires; and the Magistrate so placed in
charge of a sub-division shall be called the Sub-divisional Magistrate.
13.[(4A) The State Government may, by general or special order and subject to such
control and directions as it may deem fit to impose, delegate its powers under sub-section
(4) to the District Magistrate.]
(5) Nothing in this section shall preclude the State Government from conferring under any
law for the time being in force, on a Commissioner of Police, all or any of the powers of
an Executive Magistrate in relation to a metropolitan area.
Uttar Pradesh:
Page 2 of 3
(6) The State Government may delegate its powers under sub-section (4) to the District Magistrate.
COMMENTS
[s 20.2] Executive Magistrate
The State Government may appoint Executive Magistrates “as many persons” as it thinks fit to be
appointed on a particular district depending on its size and requirement. One of the Executive Magistrate
will be designated as District Magistrate. In fact, the Executive Magistrates have been bifurcated into five
categories depending on the powers conferred and jurisdictional area of the Magistrate, such as:
(i) the District Magistrate;

(ii) the Additional Magistrate;
(iii) Sub-Divisional Magistrate;
(iv) Executive Magistrate; and
(v) Special Executive Magistrate as provided under section 21 of the Code.
Supreme Court in A.N. Roy v Suresh Sham Singh,14. held, that words “as many persons” in sub-section (1)
of section 20 CrPC includes Commissioner of Police and as such State Government can appoint a
Commissioner of Police in a metropolitan area as an Executive Magistrate. Reading sub-sections (1), (2)
and (3) in conjunction, the State Government has power to appoint the Commissioner of Police of Brihan
Mumbai, which is a metropolitan area, as an Executive Magistrate and further appoint him as an
Additional District Magistrate, who shall have powers of a DM for the purposes of sections 18 and 20 of
Immoral Traffic (Prevention) Act, 1956, sections 18 and 20.
Page 3 of 3
11. Sub. by Act 45 of 1978 sec. 7(a), for “all or any” (w.e.f. 18-12-1978).
12. Ins. by Act 45 of 1978 sec. 7(b) (w.e.f. 18-12-1978).
14. (2006) 5 SCC 745 (2006) 3 SCC (Cri) 75 : AIR 2006 SC 2677 : LNIND 2006 SC 464 , H.K. Sema and A.K. Mathur, JJ delivered the
judgment.
End of Document
[s 21] Special Executive Magistrates.—
K D Gaur

[s 21] Special Executive Magistrates.—
The State Government may appoint, for such term as it may think fit, Executive Magistrates, to
be known as Special Executive Magistrates for particular areas or for the performance of
particular functions and confer on such Special Executive Magistrates such of the powers as are
conferrable under this Code on Executive Magistrates, as it may deem fit.
COMMENTS
[s 21.1] Special Executive Magistrate
The State Government may appoint for such term as it thinks fit Executive Magistrate to be designated as
Special Executive Magistrate for particular area or for performance of particular function.
End of Document
[s 22] Local Jurisdiction of Executive Magistrates.—
K D Gaur

[s 22] Local Jurisdiction of Executive Magistrates.—
(1) Subject to the control of the State Government, the District Magistrate may, from time to
time, define the local limits of the areas within which the Executive Magistrates may
exercise all or any of the powers with which they may be invested under this Code.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every
such Magistrate shall extend throughout the district.
COMMENTS
[s 22.1] Local Jurisdiction of Executive Magistrate
Subject to the control of State Government the District Magistrate may, from time-to-time define the
local limits of the area within which the Executive Magistrate may exercise all or any of the powers
invested by the Code of Criminal Procedure, 1973.
End of Document
[s 23] Subordination of Executive Magistrates.—
K D Gaur

[s 23] Subordination of Executive Magistrates.—
(1) All Executive Magistrates, other than the Additional District Magistrate, shall be
subordinate to the District Magistrate, and every Executive Magistrate (other than the
Sub-divisional Magistrate) exercising powers in a sub-division shall also be subordinate
to the Sub-divisional Magistrate, subject, however, to the general control of the District
Magistrate.
(2) The District Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Executive
Magistrates subordinate to him and as to the allocation of business to an Additional
District Magistrate.
COMMENTS
All Executive Magistrates other than Additional District Magistrate shall be subordinate to the District
Magistrate. The District Magistrate may make rules or give special orders consistent with the Code as to
the distribution of business to an Additional District Magistrate.
End of Document
[s 24] Public Prosecutors.—
K D Gaur

15.[s 24] Public Prosecutors.—
(1) For every High Court, the Central Government or the State Government shall, after
consultation with the High Court, appoint a Public Prosecutor and may also appoint one
or more Additional Public Prosecutors, for conducting in such Court, any prosecution,
appeal or other proceeding on behalf of the Central Government or State Government, as
the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of
conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also
appoint one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one
district may be appointed also to be a Public Prosecutor or an Additional Public
Prosecutor, as the case may be, for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of
names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or
Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or
Additional Public Prosecutor for the district unless his name appears in the panel of
names prepared by the District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a
regular Cadre of Prosecuting Officers, the State Government shall appoint a Public
Prosecutor or an Additional Public Prosecutor only from among the persons constituting
such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is
available in such Cadre for such appointment that Government may appoint a person
as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the
panel of names prepared by the District Magistrate under sub-section (4).
16.[Explanation.—For the purposes of this sub-section,—

Page 2 of 8
(a) “regular Cadre of Prosecuting Officers” means a Cadre of Prosecuting Officers which
includes therein the post of a Public Prosecutor, by whatever name called, and which
provides for promotion of Assistant Public Prosecutors, by whatever name called, to
that post;
(b) “Prosecuting Officer” means a person, by whatever name called, appointed to
perform the functions of a Public Prosecutor, an Additional Public Prosecutor or an
Assistant Public Prosecutor under this Code.]
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public
Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6),
only if he has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any
case or class of cases, a person who has been in practice as an advocate for not less than
ten years as a Special Public Prosecutor:
17.[Provided that the Court may permit the victim to engage an advocate of his choice
to assist the prosecution under this sub-section.]
(9) For the purposes of sub-section (7) and sub-section (8), the period during which a person
has been in practice as a pleader, or has rendered (whether before or after the
commencement of this Code) service as a Public Prosecutor or as an Additional Public
Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name
called, shall be deemed to be the period during which such person has been in practice as
an advocate.]
[s 24.1] State & UT Amendments
Bihar:
In section 24, for sub-section (6), substitute the following sub-section, namely:—
(6) Notwithstanding anything contained in sub-section (5) where in a State there exists a regular Cadre of Prosecuting Officers, the State
Government may also appoint a Public Prosecutor or an Additional Public Prosecutor from among the persons constituting such
Cadre.
Haryana:
In section 24, to sub-section (6), add the following Explanation, namely:—

Page 3 of 8
Explanation.—For the purpose of sub-section (6), the persons constituting the Haryana State Prosecution
Legal Service (Group A) or Haryana State Prosecution Legal Service (Group B), shall be deemed to be a
regular Cadre of Prosecuting Officers.
[Vide Haryana Act 14 of 1985, section 2 (w.e.f. 29-11-1985).]
Karnataka:
In section 24, in sub-section (1),—
(i) omit the words “or the State Government shall”;

(ii) for the words “appoint a Public Prosecutor”, substitute the words “or the State Government shall
appoint a Public Prosecutor”.
[Vide Karnataka Act 20 of 1982, section 2 (w.e.f. 3-9-1981).]
Madhya Pradesh:
In section 24,—
(i) in sub-section (6), for the words, brackets and figure “Notwithstanding anything contained in
sub-section (5)”, substitute the words, brackets, letter and figures “Notwithstanding anything
contained in sub-section (5), but subject to the provisions of sub-section (6A)” and shall be
deemed to have been substituted with effect from 18th December, 1978;
(ii) after sub-section (6), insert the following sub-section, and shall be deemed to have been inserted
with effect from 18th December, 1978, namely:—
(6A) Notwithstanding anything contained in sub-section (6), the State Government may
appoint a person who has been in practice as an advocate for not less than seven years as the
Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary
to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among
the persons constituting the Cadre of Prosecuting Officers in the State of Madhya Pradesh
and the provisions of sub-sections (4) and (5) shall apply to the appointment of a Public
Prosecutor or Additional Public Prosecutor under this sub-section;
Page 4 of 8
(iii) in sub-section (7), after the words, brackets and figure “sub-section (6)”, substitute the words,
brackets, figure and letter “or sub-section (6A)” and shall be deemed to have been inserted with
effect from 18th December, 1978; and
(iv) in sub-section (9), for the words, brackets and figure, “sub-section (7)”, substitute the words,
brackets, figures and letter “sub-section (6A) and sub-section (7)” and shall be deemed to have
been substituted with effect from 18th December, 1978.
[Vide Madhya Pradesh Act 21 of 1995, section 3 (w.e.f. 24-5-1995).]
Maharashtra:
In section 24,—
(a) in sub-section (1), omit the words “after consultation with the High Court”;
(b) in sub-section (4), for the words “in consultation with the Sessions Judge”, substitute the words
“with the approval of the State Government”.
[Vide Maharashtra Act 34 of 1981 section 2 (w.e.f. 20-5-1981).]
Rajasthan:
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular Cadre of Prosecuting Officers, the
State Government may also appoint a Public Prosecutor or an Additional Public Prosecutor from among the persons constituting such
Cadre.
[Vide Rajasthan Act 1 of 1981, section 2 (w.r.e.f. 10-12-1980).]
Tamil Nadu:
In section 24,—
Page 5 of 8
(a) in sub-section (6), after the expression “sub-section (5)”, insert “but subject to the provisions of
sub-section (6A)”;
(b) after sub-section (6), insert the following sub-section, namely:—
(6A) Notwithstanding anything contained in sub-section (6), the State Government may
appoint a person who has been in practice as an advocate for not less than seven years, as the
Public Prosecutor or Additional Public Prosecutor for the district and it shall not be necessary
to appoint the Public Prosecutor or Additional Public Prosecutor for the district from among
the persons constituting the Cadre of Prosecuting Officers in the State of Tamil Nadu and the
provisions of sub-sections (4) and (5) shall apply to the appointment of a Public Prosecutor or
Additional Public Prosecutor under this sub-section.
(c) “In sub-section (7), after the expression “sub-section (6)” insert “or sub-section (6A)”.
[Vide Tamil Nadu Act 42 of 1980 section 2 (w.e.f. 1-12-1980).]
Uttar Pradesh:
In section 24,—
(a) in sub-section (1), after the words “Public Prosecutor”, insert the words, “and one or more
Additional Public Prosecutors” and shall be deemed always to have been inserted.
(b) after sub-section (6), insert the following sub-section and shall be deemed always to have been
inserted, namely:—
(7) For the purpose of sub-sections (5) and (6), the period during which a person has been in
practice as a pleader, or has rendered service as a Public Prosecutor, Additional Public
Prosecutor or Assistant Public Prosecutor, shall be deemed to be the period during which
such person has been in practice as an advocate.

Page 6 of 8
Ed. These amendments were made prior to the amendments made by the Central Act 45 of 1978, section
8 (w.e.f. 18-12-1978).
In section 24,—
(a) in sub-section (1), omit the words “after consultation with the High Court”;
(b) omit sub-sections (4), (5) and (6);
(c) in sub-section (7), omit the words “or sub-section (6)”.
West Bengal:
In section 24, in sub-section (6),—
(a) for the words “shall appoint a Public Prosecutor or an Additional Public Prosecutor only”,
substitute the words “may also appoint a Public Prosecutor or an Additional Public Prosecutor”.
[Vide West Bengal Act 26 of 1990, section 3 (w.e.f. 1-3-1991).]
(b) omit the proviso.
Union Territory of Jammu and Kashmir:
After sub-section (6), insert the following sub-section, namely:—

Page 7 of 8
(6A).—Notwithstanding anything contained in sub-section (1) and sub-section (6), the Government of the Union territory of Jammu
and Kashmir may appoint a person who has been in practice as an Advocate for not less than seven years as Public Prosecutor or
Additional Public Prosecutor for High Court and for the District Courts and it shall not be necessary to appoint Public Prosecutor or
Additional Public Prosecutor for the High Court in consultation with High Court and Public Prosecutor or Additional Public
Prosecutor for the District Court from amongst the person constituting the cadre of Prosecution for the State of Jammu and Kashmir.
[Vide Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020 (w.e.f. 18-3-2020),
S.O. 1123(E), dated 18 March 2020, published in the Gazette of India, Extra., Pt. II, section 3(ii), No.
1016, dated 18 March 2020.]
COMMENTS
[s 24.2] Crimes – Nature of – Sections 24 and 225 – Public Prosecutor – Role and Duties of –
Duty of Court in case of dereliction of duty by prosecuting agency
It is duty of the State to maintain law and order and to protect citizens against persons (culprits) who
violate law and infringe the rights of individuals guaranteed under the Constitution particularly under Part
III and Part IV of the Constitution, i.e., Fundamental Rights and Directive Principle of State Policy. A
detailed list of offences has been mentioned under the Indian Penal Code which provides offences under
substantive criminal law and under special and local laws. In order to determine the guilt of the accused a
well-established law of procedure has been enacted under the Code of Criminal Procedure, 1973. The guilt of
the accused is determined by following the set principles of investigation, inquiry and trial in a Court of
law.
The State being guardian of its citizens has to protect and safeguard the interest of individuals and get the
accused punished according to procedure established by law as provided in the Code of Criminal Procedure,
1973 by a Court of law. It is for this purpose that the State Governments and Central Government
appoint Public Prosecutors, Additional and Assistant Public Prosecutors for conducting trial on behalf of
the State in Courts in consultation with the High Court. Section 24 of the CrPC lays down special procedure
for appointment of Public Prosecutors by the District Magistrate in consultation with the Sessions Judge.
Section 24 in sub-sections (1) – (9) gives in detail provisions for appointment of Public Prosecutors who
represent State in Districts, Sessions and High Courts respectively. In Supreme Court also there is a
provision for appointment of Advocate-General, Solicitor-General and Additional Advocate-General and
Solicitor General to represent the Central Government as well as State Governments in the Supreme
Court in various types of cases including civil, criminal, constitutional and other matters.
In sub-section (8) of section 24 there is a provision for appointment of special prosecutor by the Central
as well as State Governments as stated by the apex court in Jayendra Saraswati Swamigal (3) v State of Tamil
Page 8 of 8
Nadu18.. The Court in the impugned case held that the power of appointment of Special Prosecutors can
be exercised by the Central Government and the State Government for the purpose of any case or class
of cases, having requisite qualification. Such powers can also be exercised by the State Government of the
transferee court where the sessions case is pending (Para 14).
[s 24.3] Duty of Public Prosecutor and Court
In Zahira Habibulla H. Sheikh v State of Gujarat,18 Supreme Court held though a Public Prosecutor is not
supposed to be a persecutor, yet the minimum that was required to be done, to fairly present the case of
the prosecution, was not done. It is as much the duty of the prosecutor as on the court to ensure that full
and material facts are brought on record so that there might not be miscarriage of justice. The prosecutor
who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system,
and courts should not also play into the hands of such prosecuting agency showing indifference or
adopting an attitude of total aloofness. (Paras 71, 56 and 43)
In the present case, the Court said the Public Prosecutor appears to have acted more as a defence counsel
than one whose duty was to present the truth before the court. (Para 68)
15. Subs. by Act 45 of 1978 sec. 8, for section 24 (w.e.f. 18-12-1978).
16. Ins. by Act 25 of 2005, sec. 3 (w.r.e.f. 18-12-1978).
18. (2008) 10 SCC 180 : LNIND 2008 SC 1487 , Justices K.G. Balakrishnan, C.J. and R.V. Raveendran and M.K. Sharma, JJ delivered the
judgment; Zahira Habibullah Sheikh v State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 2004 Cr LJ 2050 : AIR 2004 SC 3114 ,
Doraiswamy Raju and Arijit Pasayat, JJ delivered the judgment.
End of Document
[s 25] Assistant Public Prosecutors.—
K D Gaur

(1) The State Government shall appoint in every district one or more Assistant Public
Prosecutors for conducting prosecutions in the Courts of Magistrates.
19.[(1A) The Central Government may appoint one or more Assistant Public
Prosecutors for the purpose of conducting any case or class of cases in the Courts of
Magistrates.]
(2) Save as otherwise provided in sub-section (3), no police officer shall be eligible to be
appointed as an Assistant Public Prosecutor.
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case,
the District Magistrate may appoint any other person to be the Assistant Public
Prosecutor in charge of that case:
Provided that a police officer shall not be so appointed—

(a) if he has taken any part in the investigation into the offence with respect to which the
accused is being prosecuted; or
(b) if he is below the rank of Inspector.

Orissa:
In section 25, to sub-section (2), add the following proviso, namely:—
Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant
Public Prosecutor through police officers.
[Vide Orissa Act 6 of 1995, section 2 (w.e.f. 10-3-1995).]

Page 2 of 3
Uttar Pradesh:
In section 25, to sub-section (2), add the following proviso and shall be deemed always to have been
inserted, namely:—
Provided that nothing in this sub-section shall be construed to prohibit the State Government from exercising its control over Assistant
Public Prosecutor through police officers.
West Bengal:
(3) Where no Assistant Public Prosecutor is available for the purposes of any particular case, any advocate may be appointed to be the
Assistant Public Prosecutor in charge of that case,—
(a) where the case is before the Court of Judicial Magistrate in any area in a sub-division, wherein the headquarters of the District
Magistrate are situated, by the District Magistrate; or
(b) where the case is before the Court of a Judicial Magistrate in any area in a sub-division, other than the sub-division referred to
in clause (a), wherein the headquarters of the Sub-divisional Magistrate are situated, by the Sub-divisional Magistrate; or
(c) where the case is before the Court of the Judicial Magistrate in any area, other than the area referred to in clauses (a) and (b),
by a local officer (other than a police officer) specially authorised by the District Magistrate in this behalf.
Explanation.—For the purposes of this sub-section,—
(i) “advocate” shall have the same meaning as in the Advocates Act, 1961 (5 of 1961);
(ii) “local officer” shall mean an officer of the State Government in any area, other than the area referred to in clauses (a)
and (b).
COMMENTS
Page 3 of 3
[s 25.2] Assistant Public Prosecutor

The State Government shall appoint in any district one or more Assistant Public Prosecutor for
conducting prosecutions in the Courts of Magistrate. Sub-section (1A) added in 1978 mentions about
appointment of one or more Assistant Public Prosecutors for conducting any class of cases.
End of Document
[s 25A] Directorate of Prosecution.—
K D Gaur

20.[s 25A] Directorate of Prosecution.—
(1) The State Government may establish a Directorate of Prosecution consisting of a Director
of Prosecution and as many Deputy Directors of Prosecution as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy
Director of Prosecution, only if he has been in practice as an advocate for not less than
ten years and such appointment shall be made with the concurrence of the Chief Justice
of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who
shall function under the administrative control of the Head of the Home Department in
the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
appointed by the State Government under sub-section (1), or as the case may be, sub-
section (8), of section 24 to conduct cases in the High Court shall be subordinate to the
Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
appointed by the State Government under sub-section (3), or as the case may be, sub-
section (8), of section 24 to conduct cases in District Courts and every Assistant Public
Prosecutor appointed under sub-section (1) of section 25 shall be subordinate to the
Deputy Director of Prosecution.
(7) The powers and functions of the Director of Prosecution and the Deputy Directors of
Prosecution and the areas for which each of the Deputy Directors of Prosecution have
been appointed shall be such as the State Government may, by notification, specify.
(8) The provisions of this section shall not apply to the Advocate General for the State while
performing the functions of a Public Prosecutor.]
[s 25A.1] State & UT Amendments
Karnataka:
Page 2 of 4
In section 25A,—
(a) for sub-section (2), substitute the following, namely:—
(2) The post of Director of prosecution and Government litigations, or a Deputy Director of
Prosecution and other cadres shall be filled in accordance with the Cadre and Recruitment
Rules framed under the Karnataka State Civil Services Act, 1978 (Karnataka Act 14 of 1990).
(b) for sub-section (5), substitute the following, namely:—
(5) Every Public Prosecutor, Additional Public Prosecutor appointed by the State
Government from the cadre of Prosecutors recruited under the recruitment rules framed by
the Government under the Karnataka State Civil Services Act, 1978 shall be subordinate to
the Director of Prosecution and Government litigations and every Public Prosecutor,
Additional Prosecutor and Special Prosecutor appointed under sub-section (8) of section 24
shall be subordinate to the Advocate General.
(c) in sub-section (6), for the words “Deputy Director of Prosecution, substitute the words “Director
of Prosecution”.
[Vide Karnataka Act 39 of 2012, section 2 (w.e.f. 24-10-2012), published in the Karnataka Gazette, Extra.,
dated 6-11-2012.]
Union Territory of Jammu and Kashmir:
(i) for sub-sections (1) and (2), substitute—
(1) The Government of the Union territory of Jammu and Kashmir shall establish a Directorate
of Prosecution consisting of a Director General of Prosecution and such other officers, as
may be provided in rules to be framed by the said Government; and
(2) The Post of Director General of Prosecution and all other officers, constituting the
prosecution cadre, shall be filled in accordance with the rules to be framed by the said
Government.;
Page 3 of 4
(ii) In sub-section (3), substitute “Director of Prosecution” with “Director General of Prosecution”;
(iii) For sub-section (4), substitute—
(4) subject to the control of the Director General of Prosecution, the Deputy Director shall
be subordinate to and under the Control of a Joint Director.;
(iv) substitute sub-section (5),—
Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor
appointed by the Government of the Union territory of Jammu and Kashmir under sub-
section (1), or the case may be under sub-section (8) of section 24 to conduct cases in the
High Court shall be subordinate to the Advocate General.;
(v) for sub-section (7), substitute–
(7) The powers and functions of the Director General of Prosecution and other officers of
the prosecution cadre shall be such as may be provided by the rules.
[Vide the Jammu and Kashmir Reorganisation (Adaptation of Central Laws) Order, 2020 (w.e.f. 18-3-
2020), S.O. 1123(E), dated 18 March 2020, published in the Gazette of India, Extra., Pt. II, section 3(ii),
No. 1016, dated 18 March 2020.]
COMMENTS
Section 25A was inserted in the Code vide Criminal Law (Amendment) Act, 2005 with a view to establish a
Directorate of Prosecution consisting of a Director of Prosecution and as many as Deputy Directorate of
Prosecution as required in a District. The Director of Prosecution shall function under the Home
Department of the State.
Every Deputy Director shall be subordinate to the Director of Prosecution. Special Public Prosecutor
may be appointed depending upon the requirement of cases of sensitive nature by the State Government.
Page 4 of 4
End of Document
[s 26] Courts by which offences are triable.—
K D Gaur
Criminal Procedure, 2nd ed > THE CODE OF CRIMINAL PROCEDURE, 1973 > CHAPTER III
POWER OF COURTS

CHAPTER III POWER OF COURTS
Subject to the other provisions of this Code,—

(a) any offence under the Indian Penal Code (45 of 1860) may be tried by—
(i) the High Court, or
(ii) the Court of Session, or
(iii) any other Court by which such offence is shown in the First Schedule to be triable;
1.[Provided that any 2.[offence under section 376, 3.[section 376A, section 376AB, section
376B, section 376C, section 376D, section 376DA, section 376DB] or section 376E of the
Indian Penal Code (45 of 1860)] shall be tried as far as practicable by a Court presided over
by a woman.]
(a) any offence under any other law shall, when any Court is mentioned in this behalf in such
law, be tried by such Court and when no Court is so mentioned, may be tried by—
(i) the High Court, or
(ii) any other Court by which such offence is shown in the First Schedule to be triable.
Uttar Pradesh:
In section 26, for clause (b), substitute the following clause, namely:—
(b) any offence under any other law may be tried—

Page 2 of 3
(i) when any Court is mentioned in this behalf in such law, by such Court, or by any Court
superior in rank to such Court, and
(ii) when no Court is so mentioned, by any Court by which such offence is shown in the First
Schedule to be triable, or by any Court superior in rank to such Court.
COMMENTS
Chapter III in sections 26 to 35 states the powers to be exercised by different Courts for trial of criminal
cases. Section 26 in clause (a) states that any offence committed under the Indian Penal Code may be tried
by:
(i) The High Court, or

(ii) The Court of Session, or
(iii) Any other Court by which such offence is shown in the First Schedule to be triable.
In clause (b) in case of offences where a particular Court is mentioned or when no Court is mentioned
will be tried by High Court or any other Court by which such offence(s) is shown to have been triable as
stated in the First Schedule to be triable.
[s 26.2] Recent Amendments
In view of drastic amendment taken place in certain provisions of IPC relating to the law of rape vide The
Criminal Law (Amendment) Act, 2013 (13 of 2013) and 2018 (22 of 2018). A number of penal provisions
were added in order to punish those who were indulged in heinous crime of sexual offences against
women. Changes made in substantive law of IPC necessitated consequential amendment made in the
procedural law of Code of Criminal Procedure, 1973.
The updated relevant provisions are as follows:
Provided that any offence under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB or section 376E of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman.
Page 3 of 3
2. Subs. by Act 13 of 2013, sec. 11, for “offence under section 376 and sections 376A to 376D of the Indian Penal Code (45 of 1860)” (w.r.e.f.
3-2-2013).
3. Subs. by Act 22 of 2018, sec. 10, for “section 376A, section 376B, section 376C, section 376D” (w.r.e.f. 21-4-2018).
End of Document
[s 27] Jurisdiction in the case of juveniles.—
K D Gaur
POWER OF COURTS

[s 27] Jurisdiction in the case of juveniles.—
Any offence not punishable with death or imprisonment for life, committed by any person who at
the date when he appears or is brought before the Court is under the age of sixteen years, may be
tried by the Court of a Chief Judicial Magistrate, or by any Court specially empowered under the
Children Act, 1960 (60 of 1960), or any other law for the time being in force providing for the
treatment, training and rehabilitation of youthful offenders.
COMMENTS
A “juvenile” or “child” as defined under section 2 clause (k) of Juvenile Justice (Care and Protection of
Children) Act, 2000 means “a person who has not completed 18 years of age” applicable to male or
female child as compared to earlier provision when 16 years was fixed for girls and 18 years for boys. A
separate Act in the name of The Juvenile Justice (Care and Protection of Children) Act, 2000 was passed.
The Act is a comprehensive legislation that provides for trial, treatment, training and rehabilitation of such
juvenile offenders. Chief Judicial Magistrate or any Court specially empowered under the Children Act,
1960 shall try cases of juveniles. A juvenile cannot be sentenced to death or life imprisonment even for
heinous offences like murder and rape.4.
4. See K.D. Gaur, Commentary on the Indian Penal Code, 2nd Edn. (2013) Universal Law Publishing Co. Pvt. Ltd., pp. 239 to 254; K.D. Gaur,
Criminal Law Cases and Materials, 8th Edn., section 83 commentary.
End of Document
[s 28] Sentences which High Courts and Sessions Judges may pass.—
K D Gaur
POWER OF COURTS

[s 28] Sentences which High Courts and Sessions Judges may pass.—
(1) A High Court may pass any sentence authorised by law.

(2) 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.
(3) 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.
COMMENTS
Section 28 prescribes that both High Court and Sessions Judge and Additional Sessions Judge may pass
any sentence including death sentence prescribed under the Penal Code or under any other law. However,
in case of Sessions Judge, Additional Sessions Judge, death sentence must be confirmed by the High
Court of the concerned State. Section 28 in sub-section (3) puts a bar in regard to the Assistant Sessions
Judge who cannot award death sentence or life imprisonment or of imprisonment for a term exceeding
ten years.
End of Document
[s 29] Sentences which Magistrates may pass.—
K D Gaur
POWER OF COURTS

(1) 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.
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a
term not exceeding three years, or of fine not exceeding 5.[ten thousand rupees], or of
both.
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a
term not exceeding one year, or of fine not exceeding 6.[five thousand rupees], or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a
Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court
of a Magistrate of the first class.
Maharashtra:
In section 29,—
(a) in sub-section (2), for the words “ten thousand rupees”, substitute the words “fifty thousand
rupees”;
(b) in sub-section (3), for the words “five thousand rupees”, substitute the words “ten thousand
rupees”.
Page 2 of 3
[Vide The Code of Criminal Procedure (Maharashtra Amendment) Act, 2007 (Maharashtra Act 27 of 2007),
sec 2 (w.e.f. 1-12-2007).]
Rajasthan:
In section 29, in sub-section (2), for the expression “ten thousand rupees”, substitute the expression “fifty
thousand rupees”.
[Vide Rajasthan Act 1 of 2015, section 2.]
Section 29A
Punjab:
29A. Sentence which Executive Magistrate may pass.—An Executive Magistrate may pass a sentence of imprisonment of a term not exceeding
three years or of fine not exceeding five thousand rupees, or both.
[Vide Punjab Act 22 of 1983 (w.e.f. 27-6-1983).]
COMMENTS
Section 29 lays down the quantum of punishment that may be awarded to an accused by Magistrate of
different categories. For instance,
(i) The Chief Judicial Magistrate may pass any sentence authorised by law except death or of
imprisonment for life or of imprisonment exceeding seven year.
(ii) Magistrate of First Class may pass a sentence of imprisonment not exceeding three years or of
fine not exceeding ten thousand or both.
Page 3 of 3
(iii) Magistrate of Second Class imprisonment not exceeding one year or fine upto five thousand or
both.
(iv) The Court of Chief Metropolitan Magistrate shall have the powers of Chief Judicial Magistrate
and that of Metropolitan Magistrate the powers of the Court of a Magistrate of First Class.
5. Subs. by Act 25 of 2005, sec. 5(a), for “five thousand rupees” (w.e.f. 23-6-2006).
6. Subs. by Act 25 of 2005, sec. 5(b), for “one thousand rupees” (w.e.f. 23-6-2006).
End of Document
[s 30] Sentence of imprisonment in default of fine.—
K D Gaur
POWER OF COURTS

[s 30] Sentence of imprisonment in default of fine.—
(1) The Court of a Magistrate may award such term of imprisonment in default of payment of
fine as is authorised by law:
Provided that the term—

(a) is not in excess of the powers of the Magistrate under section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive sentence,
exceed one-fourth 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.
(2) The imprisonment awarded under this section may be in addition to a substantive
sentence of imprisonment for the maximum term awardable by the Magistrate under
section 29.
COMMENTS
Section 30 authorises a Magistrate to award sentence of imprisonment in case a person is found in default
of payment of fine as authorised by law to put a check on amount of fine limit that has been fixed by
section 30. The amount of fine shall not exceed more than the amount of fine which the Magistrate is
entitled to award under section 29 CrPC [sub-section (a)].
As per sub-clause (b) when imprisonment has been awarded as part of the substantive sentences, it will
not exceed 1/4th of the imprisonment which the Magistrate is authorised to award.
End of Document
[s 31] Sentence in cases of conviction of several offences at one trial.—
K D Gaur
POWER OF COURTS

(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—
(a) in no case shall such person be sentenced to imprisonment for a longer period than
fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which
the Court is competent to inflict for 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.
COMMENTS
[s 31.1] Sentence in Cases of Conviction of Several Offences at One Trial
Section 31 provides guide lines to be followed by the courts in awarding sentence to an accused on
conviction at one trial of one or more offences. The Court may award sentences either to run
concurrently or consecutively, meaning thereby in the first case the sentence is to run one after the
expiration of another sentences, whereas in the latter case sentences will run consecutively. In other
words, sentences will be applied together. The lesser sentences will be merged in the greater punishment.
In Kamalanantha v State of Tamil Nadu,7. the Supreme Court held:
Page 2 of 8
The term “imprisonment” is not defined under the Code of Criminal Procedure. Section 31 of the Code falls under Chapter III of the Code
which deals with power of courts. Section 28 of the Code empowers the High Court to pass any sentence authorised by law. Similarly,
the Sessions Judge and Additional Sessions Judge may pass any sentence authorised by law, except the sentence of death which shall be
subject to confirmation by the High Court. Therefore, the term “imprisonment” would include the sentence of imprisonment for life.
(Para 76)
[s 31.2] Sentence should be commensurate with Gravity of Offence – Relevant Factors to be taken
into Account while Determining Proper Sentence
In State of Madhya Pradesh v Saleem,8. Supreme Court held, no formula of a foolproof nature is possible that
would provide a reasonable criterion in determining just and appropriate punishment. Due consideration
should be given to facts and circumstances of case, having regard to various factors including nature of
offence and manner in which it was executed or committed, motive for the crime, conduct of accused and
all other attendant circumstances. On facts. High Court’s reduction of sentences of 5 and 4 years’ RI
respectively under sections 307 and 330 IPC to period already undergone (six months and 23 days) on
grounds that appellants were illiterate persons belonging to lower income group and were only 23 years
old at time of commission of offence, held, not proper. Anguish expressed at High Court’s casual and
mechanical manner of disposal of question of sentence, without application of mind, oblivious to
consequences of awarding inappropriate sentences. However, matter not disposed of finally and remitted
to High Court instead, since it had not considered certain other alleged mitigating factors put forward by
respondents.
In State of Madhya Pradesh v Munna Choubey,9. Supreme Court held:
no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate
punishment….
Due consideration should be given to facts and circumstances of case, having regard to various factors
including nature of offence and manner in which it was executed or committed, motive for the crime,
conduct of accused and all other attendant circumstances – Aggravating and mitigating factors should be
delicately balanced. Discretion in determination of quantum of punishment is required to be exercised
judiciously and judicially. Extent of adherence to principle of proportionality, while sentences were
determined in actual practice, discussed – On facts, reduction of sentence of imprisonment of seven years
rigorous imprisonment imposed by trial court under section 376(1), to period already undergone (three
years and six months in case of one of the co-accused, and two months in case of the other) by High
Court, held, not proper – Sentence imposed by trial court restored by Supreme Court: [Sections 375 and
376 (Paras 11 to 13, 19 and 20)].
A court cannot afford to forget stigma that may follow the victim to the grave and which in most cases,
practically ruins all prospects of a normal life for the victim. These aspects while imposing a punishment
on the aggressor must be taken into consideration. The court has to do justice to society and to the victim
Page 3 of 8
on the one hand and to the offender on the other. The proper balance must be taken to have been struck
by the legislature. Hence, the legislative wisdom reflected by the statute has to be respected by the court
and the permitted departure therefrom made only for compelling and convincing reasons. (Para 17).10.
In Adu Ram v Mukna,11. Supreme Court held no formula of a foolproof nature is possible that would
provide a reasonable criterion in determining a just and appropriate punishment. Due consideration
should be given to facts and circumstances of case, having regard to various factors including nature of
offence and manner in which it was executed or committed, motive for the crime, conduct of accused and
all other attendant circumstances. Aggravating and mitigating factors should be delicately balanced.
Discretion in determination of quantum of punishment is required to be exercised judiciously and
judicially. Extent of adherence to principle of proportionality, while sentences were determined in actual
practice, discussed. On facts, three years’ custodial sentence under section 304 Pt. I, IPC imposed by High
Court, held, not proper. The Supreme Court found that case fell under section 304 Pt. II and not section
304 Pt. I. Even so, on facts and circumstances of case, custodial sentence enhanced to six years.
Criminal law adheres in general to the principle of proportionality in prescribing liability according to the
culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations
of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment
ought always to fit the crime; yet in practice sentences are determined largely by other considerations.
Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence; sometimes
the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime.
Inevitably these considerations cause a departure from just deserts as the basis of punishment and create
cases of apparent injustice that are serious and widespread. (Para 13)
Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions,
it remains a strong influence in the determination of sentences. The practice of punishing all serious
crimes with equal severity is now unknown in civilised societies, but such a radical departure from the
principle of proportionality has disappeared from the law only in recent times. Even now for a single
grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any
serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact,
quite apart from those considerations that make punishment unjustifiable when it is out of proportion to
the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
After giving due consideration to the facts and circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and
circumstances in which a crime has been committed are to be delicately balanced on the basis of really
relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult
task. No formula of a foolproof nature is possible that would provide a reasonable criterion in
determining a just and appropriate punishment in the infinite variety of circumstances that may affect the
gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable
criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the
discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably
distinguished. (Paras 14, 15 and 17).
[s 31.3] Imposition of “Appropriate Sentence” – Emphasising the Need of, and Reiterating the
Object of Law as well as Duty and role of courts in this regard, held, sentence should be
Proportionate to the Gravity of Offence
In State of MP v Bala alias Balaram;12. Supreme Court held undue sympathy to impose inadequate sentence
Page 4 of 8
would do more harm to the justice system to undermine the public confidence in the efficacy of law and
society could not long endure under such serious threats. It is, therefore, the duty of every court to award
proper sentence having regard to the nature of the offence and the manner in which it was executed or
committed, etc. It is expected that the courts would operate the sentencing system so as to impose such
sentence which reflects the conscience of the society and the sentencing process has to be stern where it
should be. (Paras 10 and 14)
The imposition of appropriate punishment is the manner in which the court responds to the society’s cry
for justice against the criminal. Justice demands that courts should impose punishment befitting the crime
so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights
of the criminal but also the rights of the victim of the crime and the society at large while considering the
imposition of appropriate punishment. Imposition of sentence without considering its effect on the social
order in many cases may be in reality a futile exercise. The social impact of the crime, e.g., where it relates
to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other
offences involving moral turpitude or moral delinquency which have great impact on social order and
public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by
imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect
of such offences will be result wise counter-productive in the long run and against societal interest which
needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. The court
will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed
not only against the individual victim but also against the society to which the criminal and victim belong.
The punishment to be awarded for a crime must not be irrelevant but it should conform to and be
consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the
crime warranting public abhorrence and it should “respond to the society’s cry for justice against the
criminal”. (Paras 16, 15 and 17)
Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions,
it remains a strong influence in the determination of sentences. The practice of punishing all serious
crimes with equal severity is now unknown in civilised societies, but such a radical departure from the
principle of proportionality has disappeared from the law only in recent times. Even now for a single
grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any
serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact,
quite apart from those considerations that make punishment unjustifiable when it is out of proportion to
the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
(Para 12)
After giving due consideration to the facts and circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and
circumstances in which a crime has been committed are to be delicately balanced on the basis of really
relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult
task. No formula of a foolproof nature is possible that would provide a reasonable criterion in
determining a just and appropriate punishment in the infinite variety of circumstances that may affect the
gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable
criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the
discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably
distinguished. (Para 13).
[s 31.4] Sentencing Process
Page 5 of 8
In State of Uttar Pradesh v Satish,13. Supreme Court held, award of punishment following conviction at a
trial in a system wedded to the rule of law is the outcome of cool deliberation in the courtroom, after
adequate hearing given to all parties to make and rebut accusations.
A convict hovers between life and death when the question of gravity of the offence and award of
adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards
civilised society and it is no longer the physical power of a litigating individual or the might of the ruler
nor even the opinion of the majority that takes away the liberty of a citizen by convicting him and making
him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system
wedded to the rule of law is the outcome of cool deliberation in the courtroom after adequate hearing is
afforded to the parties, accusations are brought against the accused, the prosecutor is given an
opportunity of supporting the charge and the defence is given an opportunity of meeting the accusations
by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by
the informed man i.e., the judge that leads to determination of the lis. (Para 27).
[s 31.5] Adequate Sentence – (Per Balasubramanyan, J.) Necessity of Imposing Punishment
Commensurate with Gravity of Offence, Stressed
The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the
gravity of the offence concerned, its impact on the society and what the legislature considers as a
punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative
wisdom and to respect it. (Para 12)
The rationale for advocating the award of a punishment commensurate with the gravity of the offence
and its impact on society, is to ensure that a civilised society does not revert to the days of “an eye for an
eye and a tooth for a tooth”. Not awarding a just punishment might provoke the victim or its relatives to
retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have
adopted. Even in the time of Kautilya, the need for awarding just punishment was recognised. According
to Kautilya, “Whoever imposes severe punishment becomes repulsive to people, while he who awards
mild punishment becomes contemptible. The ruler just with the rod is honoured. When deserved
punishment is given, it endows the subjects with spiritual good, material well-being and pleasures of the
senses.” This philosophy is woven into our statute and our jurisprudence and it is the duty of those who
administer the law to bear this in mind. (Paras 13 and 14)
[s 31.6] Effect of Imposition of “Appropriate Sentence” on justice system and Society, Explained
In Adu Ram v Mukna,14. Supreme Court held: object of sentence being to protect society and deter the
criminal, social impact of the crime and effect of sentence on social order are relevant considerations.
Court must also keep in view rights of victim of crime and society at large. Sentence should reflect
conscience of society. Imposition of meagre sentences on account of lapse of time not permissible.
The law regulates social interests, arbitrates conflicting claims and demands. Ensuring security of persons
and property of the people is an essential function of the State. It could be achieved through
instrumentality of criminal law. Undoubtedly, there is cross-cultural conflict where living law must find
answer to the new challenges and the courts are required to mould the sentencing system to meet the
challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of
society and stamping out criminal propeneity (tendency) must be the object of law which must be
achieved by imposing appropriate sentences. Therefore, law as a cornerstone of the edifice of “order”
should meet the challenges confronting society. In operating the sentencing system, law should adopt the
Page 6 of 8
corrective machinery or the deterrence based on factual matrix. By skilful modulation sentencing process
should be stern where it should be, and tempered with mercy where it warrants to be. The facts and given
circumstances in each case, the nature of the crime, the manner in which it was planned and committed,
the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all
other attendant circumstances are relevant facts which would enter into the area of consideration. For
instance, a murder committed due to deep-seated mutual and personal rivalry may not call for penalty of
death. But an organised crime or mass murder of innocent people would call for imposition of the death
sentence as a deterrent. Therefore, undue sympathy to impose inadequate sentence would do more harm
to the justice system to undermine the public confidence in the efficacy of law and society could not long
endure under such serious threats. It is, therefore, the duty of every court to award proper sentence
having regard to the nature of the offence and the manner in which it was executed or committed,
etc.(Paras 11 and 12).
An important example is of death sentence to Yakub Memon – 1993 Mumbai serial blasts convict found
guilty of horrific terrorist violence which claimed 257 lives, maimed 700 and scarred country’s financial
capital on July 30, 2015.15. Two other cases of similar gravity are of Navjot Sandhu alias Afsan Guru16.
(2005) Parliament Attack case and Mohd. Ajmal Amir Kasab v State of Maharashtra17. (2012) Mumbai Terrorist
Attack case.
The punishment must fit the crime and it is the duty of the court to impose a proper punishment
depending on the degree of criminality and desirability for imposing such punishment. However, the
awarding of inadequate punishments by courts is becoming disturbingly frequent as observed by Supreme
Court. (Paras 15 and 10)
Imposition of sentence without considering its effect on the social order in many cases may be in reality a
futile exercise. The social impact of the crime e.g., where it relates to offences against women, dacoity,
kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or
moral delinquency which have great impact on social order, and public interest, cannot be lost sight of
and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too
sympathetic view merely on account of lapse of time in respect of such offences will be result wise
counterproductive in the long run and against societal interest which needs to be cared for and
strengthened by a string of deterrence inbuilt in the sentencing system. (Paras 16 and 17)
[s 31.7] Section 31 – Direction for Sentence to run concurrently or consecutively – Criteria for –
Held (per K.G. Balakrishnan, J.), there are no Statutory or Judicial Guidelines
In K. Prabhakaran v P. Jayarajan,18. Supreme Court held (per curiam) in certain cases, if the person convicted
is a habitual offender and has been found guilty on various counts and it is suspected that he would be a
menace if let loose in society, then direction for consecutive running of sentences should be given.
Per K.G. Balakrishnan, J. (dissenting)
The direction for the sentence to run concurrently or consecutively is a direction as to the mode in which
the sentence is to be executed. That does not affect the nature of the sentence. It is also important to note
that in the Code of Criminal Procedure, there are no guidelines or specific provisions to suggest under what
circumstances the various sentences of imprisonment shall be directed to run concurrently or
consecutively. There are no judicial decisions by superior courts laying down the guidelines as to what
Page 7 of 8
should be the criteria for directing the convict to undergo imprisonment on various counts concurrently
or consecutively. In certain cases, if the person convicted is a habitual offender and he had been found
guilty of offences on various counts and it is suspected that he would be a menace if he is let loose on the
society, then the court would direct that such person shall undergo the imprisonment consecutively. (Para
69)
[s 31.8] Power to Pass Several Sentences in Respect of Section 31 CrPC
In Chatar Singh v State of Madhya Pradesh,19. the appellant was prosecuted for kidnapping and murdering
two boys aged 10 to 12 years. Trial court finding that there was no evidence to show that victims had
been killed by the appellant or that they were kidnapped for obtaining ransom for murdering them.
However, two letters demanding ransom were proved to be written by him, and hence he was convicted
under sections 364 and 365 IPC by the trial court and sentenced under section 364 IPC: for 10 years; under
section 365 IPC: for 4 years; under section 120B IPC: for 5 years; under section 201 IPC: for 2 years. – High
Court in appeal maintaining the conviction and directing the sentence under section 364 to run
consecutively while for other offences it was to be concurrent i.e., total period of 20 years’ rigorous
imprisonment was imposed. Appellant already in jail for more than 12 years, while the maximum sentence
that could be imposed was 14 years. Held, proviso (a) appended to section 31 clearly mandates that the
accused could not have been sentenced to imprisonment for a period longer than fourteen years. Trial
court as well as the High Court committed a serious illegality in passing the impugned judgment.
Appellant sentenced to the period already undergone. Appeal accordingly allowed and accused was set
free. (Paras 2, 3, 6 to 12).
7. AIR 2005 SC 2132 : (2005) 5 SCC 194 : 2005 SCC (Cri) 1121 , B.N. Agrawal and H.K. Sema, JJ delivered the judgment of the Court.
8. (2005) 5 SCC 554 : 2005 SCC (Cri) 1329 : 2005 Cr LJ 3435 : LNIND 2005 SC 1070 , Arijit Pasayat and S.H. Kapadia, JJ delivered the
judgment.
9. State of Madhya Pradesh v Munna Choubey, (2005) 2 SCC 710 : 2005 SCC (Cri) 559 : AIR 2005 SC 682 : 2005 Cr LJ 913 , Arijit Pasayat and
S.H. Kapadia, JJ delivered the judgment.
10. State of Madhya Pradesh v Bala, (2005) 8 SCC 1 : 2005 SCC (Cri) 1947 : AIR 2005 SC 3567 : 2005 Cr LJ 4371 . R.C. Lahoti, C.J. and G.P.
Mathur and P.K. Balasubramanyan, JJ delivered the judgment.
11. (2005) 10 SCC 597 : 2005 SCC (Cri) 1635 : AIR 2004 SC 5064 : 2004 Cr LJ 4674 : LNIND 2004 SC 1055 , Arijit Pasayat and C.K.
Thakker, JJ delivered the judgment.
12. AIR 2005 SC 3567 : 2005 AIR SCW 4952 : (2005) 8 SCC 1 & 8.
13. (2005) 3 SCC 114 : 2005 SCC (Cri) 642 : AIR 2005 SC 1000 : 2005 Cr LJ 1428 . Arijit Pasayat and S.H. Kapadia, JJ delivered the
judgment.
Page 8 of 8
14. (2005) 10 SCC 597 : 2005 SCC (Cri) 1635 : AIR 2004 SC 5064 : 2004 Cr LJ 4674 . Arijit Pasayat and C.K. Thakker, JJ delivered the
judgment.
15. Times of India, July 31, 2015 pp. 1, 13. The Bench of Supreme Court consisting of Justice Deepak Mishra, P.C. Pant and Amitava Rao
in one of the most extraordinary hearing in SC’s history began hearing in the night at 3:24 a.m. and dictated its order at 4:40/4:56 a.m.
and Yakub Memon was hanged in Nagpur Jail at 7:30 a.m.
16. State (NCT of Delhi) v Navjot Sandhu, AIR 2005 SC 3820 : 2005 AIR SCW 4148 : 2005 Cr LJ 3950 : LNIND 2005 SC 580 .
17. Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, AIR 2012 SC 3565 : 2012 Cr LJ 4770 : 2012 AIR SCW 4942.
18. (2005) 1 SCC 754 : 2005 SCC (Cri) 451 : AIR 2005 SC 688 : (2005) 1 KLT 510 , R.C. Lahoti, C.J. and Shivaraj V. Patil, K.G.
Balakrishnan, B.N. Srikrishna and G.P. Mathur, JJ delivered the judgment.
19. (2006) 12 SCC 37 : (2007) 2 SCC (Cri) 370 : AIR 2007 SC 319 : 2007 Cr LJ 796 .
End of Document
[s 32] Mode of conferring powers.—
K D Gaur
POWER OF COURTS

[s 32] Mode of conferring powers.—
(1) In conferring powers under this Code, the High Court or the State Government, as the
case may be, may, by order, empower persons specially by name or in virtue of their
offices or classes of officials generally by their official titles.
(2) Every such order shall take effect from the date on which it is communicated to the
person so empowered.
COMMENTS
The High Court or the State Government if it thinks fit may empower persons specially by name or by
virtue of office one is holding confer powers specified in the order. For instance, if a Magistrate of Second
Class when during the course of trial of a case is invested with power of First Class Magistrate, he can
pass sentence authorised to a Magistrate of First Class.
End of Document
[s 33] Powers of officers appointed.—
K D Gaur
POWER OF COURTS

[s 33] Powers of officers appointed.—
Whenever any person holding an office in the service of Government who has been invested by
the High Court or the State Government with any powers under this Code throughout any local
area is appointed to an equal or higher office of the same nature, within a like local area under
the same State Government, he shall, unless the High Court or the State Government, as the case
may be, otherwise directs, or has otherwise directed, exercise the same powers in the local area in
which he is so appointed.
COMMENTS
Section 33 states that an officer on his transfer from one local area to another ceases to have jurisdiction
in that area as soon as he relinquishes charge of his office of the original place (office).
End of Document
[s 34] Withdrawal of powers.—
K D Gaur
POWER OF COURTS

[s 34] Withdrawal of powers.—
(1) The High Court or the State Government, as the case may be, may withdraw all or any of
the powers conferred by it under this Code on any person or by any officer subordinate to
it.
(2) Any powers conferred by the Chief Judicial Magistrate or by the District Magistrate may
be withdrawn by the respective Magistrate by whom such powers were conferred.
COMMENTS
[s 34.1] Withdrawal of Powers
The State Government or High Court may withdraw all or any of the powers conferred by it. Sub-section
(2) states that the Chief Judicial Magistrate or District Magistrate may withdraw the powers conferred by
them on the respective Magistrates.
End of Document
[s 35] Powers of Judges and Magistrates exercisable by their successors-in-office.—
K D Gaur
POWER OF COURTS

[s 35] Powers of Judges and Magistrates exercisable by their successors-in-office.—
(1) Subject to the other provisions of this Code, the powers and duties of a Judge or
Magistrate may be exercised or performed by his successor-in-office.
(2) When there is any doubt as to who is the successor-in-office of any Additional or Assistant
Sessions Judge, the Sessions Judge shall determine by order in writing the Judge who
shall, for the purposes of this Code or of any proceedings or order thereunder, be deemed
to be the successor-in-office of such Additional or Assistant Sessions Judge.
(3) When there is any doubt as to who is the successor-in-office of any Magistrate, the Chief
Judicial Magistrate, or the District Magistrate, as the case may be, shall determine by
order in writing the Magistrate who shall, for the purposes of this Code or of any
proceedings or order thereunder, be deemed to be the successor-in-office of such
Magistrate.
COMMENTS
Section 35 confirms that powers and duties of a Judge or Magistrate is exercised in his or her official
capacity as per provisions of the Code. Hence officers who will be successor-in-office to the person
concerned shall exercise similar powers and exercise same duties.
End of Document
[s 36] Powers of superior officers of police.—
K D Gaur
Criminal Procedure, 2nd ed > THE CODE OF CRIMINAL PROCEDURE, 1973 > CHAPTER IV >
A.—POWERS OF SUPERIOR OFFICERS OF POLICE

CHAPTER IV
A.—POWERS OF SUPERIOR OFFICERS OF POLICE
Police officers superior in rank to an officer in charge of a police station may exercise the same
powers, throughout the local area to which they are appointed, as may be exercised by such
officer within the limits of his station.
COMMENTS
[s 36.1] Sections 36, 173(8) and (3) CrPC – Territorial Jurisdiction of Police Officers Superior in
Rank to Officer-in-charge of a Police Station – Power to Direct further Investigation
Superior police officer in exercise of powers under section 36 can direct further investigation. CID being a
part of the investigating authorities of the State can be entrusted with further investigation by Additional
Director-General of Police.
In State of Andhra Pradesh v A.S. Peter,1. the Supreme Court held section 36 of the Criminal Procedure Code, 1973
empowers a police officer, superior in rank to an officer in charge of a police station, to exercise the same
powers throughout the local area to which they are appointed, as may be exercised by such officer within
the limits of his police station. It is not correct to contend that the investigation was taken up by a
different agency. CID is a part to the investigating authorities of the State. It was, therefore, permissible
for the higher authority to carry out or direct further investigation in the matter. (Paras 11, 12 and 18),
reaffirmed – Supreme Court—2008.
It was not a case where investigation was carried out in relation to a separate conspiracy. As allegations
had been made against the officer of a local police station in regard to the mode and manner in which
investigation was carried out, a further investigation was directed. (Para 17).
Page 2 of 2
1. (2008) 2 SCC 383 : (2008) 1 SCC (Cri) 427 : AIR 2008 SC 1052 : LNIND 2007 SC 1483 , Justice S.B. Sinha and L.S. Panta, JJ, delivered
the judgment of the Court.
End of Document
[s 37] Public when to assist Magistrates and police.—
K D Gaur
B.—AID TO THE MAGISTRATES AND THE POLICE

CHAPTER IV
[s 37] Public when to assist Magistrates and police.—
Every person is bound to assist a Magistrate or police officer reasonably demanding his aid—
(a) in the taking or preventing the escape of any other person whom such Magistrate or
police officer is authorised to arrest; or
(b) in the prevention or suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph
or public property.
COMMENTS
The State is under obligation to protect life, liberty, security and property of its citizens and punish the
criminals according to procedure established by law after the accused has been adjudged guilty of
committing a crime. In the ardous task of the State to maintain law and order it is also duty of the public
to aid and assist the Magistrate and police in:
(i) taking or preventing escape of such person whom the Magistrate and police officer is authorised
by law to arrest;
(ii) preventing or suppression of breach of peace; and
(iii) prevention of any injury attempted to be committed to any railway, canal, telegraph or public
property.
End of Document
[s 38] Aid to person, other than police officer, executing warrant.—
K D Gaur

CHAPTER IV
[s 38] Aid to person, other than police officer, executing warrant.—
When a warrant is directed to a person other than a police officer, any other person may aid in the
execution of such warrant, if the person to whom the warrant is directed be near at hand and
acting in the execution of the warrant.
COMMENTS
Section 38 provides that any person may help in execution of warrant of arrest of a person wanted by the
police for arrest as required by law if such person is near to the person wanted.
End of Document
[s 39] Public to give information of certain offences.—
K D Gaur

CHAPTER IV
(1) Every person, aware of the commission of, or of the intention of any other person to
commit, any offence punishable under any of the following sections of the Indian Penal
Code (45 of 1860), namely:—
(i) sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the
State specified in Chapter VI of the said Code);
(ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public
tranquillity specified in Chapter VIII of the said Code);
(iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal
gratification);
(iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of
food and drugs, etc.);
(v) sections 302, 303 and 304 (that is to say, offences affecting life);
2.[(va) section 364A (that is to say, offence relating to kidnapping for ransom, etc.);]
(vi) section 382 (that is to say, offence of theft after preparation made for causing death,
hurt or restraint in order to the committing of the theft);
(vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of
robbery and dacoity);
(viii) section 409 (that is to say, offence relating to criminal breach of trust by public
servant, etc.);
(ix) sections 431 to 439, both inclusive (that is to say, offences of mischief against
property);
Page 2 of 4
(x) sections 449 and 450 (that is to say, offence of house-trespass);

(xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass);
and
(xii) sections 489A to 489E, both inclusive (that is to say, offences relating to
currency notes and bank notes),
shall, in the absence of any reasonable excuse, the burden of proving which excuse shall
lie upon the person so aware, forthwith give information to the nearest Magistrate or
police officer of such commission or intention.
(2) For the purposes of this section, the term “offence” includes any act committed at any
place out of India which would constitute an offence if committed in India.
COMMENTS
[s 39.1] Passing information
Section 39 in sub-section (1) enumerates 12 clauses under which a person is bound to furnish information
to the police or Magistrate if he is aware of the commission of offences or likelihood of the commission
of the offences specified in clauses (i) to (xii) stated in the section. Ommission to discharge statutory
obligation makes such person liable to punishment as elaborately stated by the Supreme Court in Shaukat
Hussain Guru v State (NCT) Delhi (Parliament Attack case,3. below:
The Supreme Court held that section 39, CrPC casts a duty on every person aware of the commission of, or
of the intention of any other person to commit any offence punishable under sections 121 to 126 IPC, to
forthwith inform to the nearest Magistrate or police officer of such commission or intention unless there
is a reasonable excuse for not doing so.
[s 39.2] A person charged for a higher offence and on the evidence, if the court finds that the
accused has commited a lesser offence, then he can be convicted of the lesser offence.
P.P. Naolekar, J., speaking through the Court said close to the noon on 13-12-2001, five heavily armed
persons entered the Parliament House complex and inflicted heavy causalities on the security men on
duty. In the gun battle which took place in Parliament House complex, the five terrorists who stormed the
Complex were killed. Nine persons including security personnel and one gardener succumbed to the
bullets of the terrorists and 16 persons including 13 security men received injuries.
The four accused persons, namely, 1. Mohd. Afzal, 2. Shaukat Hussain Guru, 3. A.S. Gilani and 4. Navjot
Sandhu alias Afsan Guru along with some other proclaimed offenders said to be the leaders of the banned
organisation known as Jaish-e-Mohammed were found to be involved in the crime of attacking
Parliament.
They were charged and tried under various sections of POTA,4. sections 121, 121A, 122,5. 302, 307 read
with section 120B of IPC and section 3 of the Explosive Substance Act. After the conclusion of the trial the
Page 3 of 4
Designated Court convicted three accused, namely, Mohd. Afzal, Shaukat Hussain Guru, and A.S. Gilani
under section 302 read with section 120B IPC and section 3(2), POTA and sentenced them to death and also
to life imprisonment for various other offences charged. The fourth accused Navjot Sandhu alias Afsan
Guru was acquitted of all the charges except under section 123 IPC for collecting arms etc., with intention
of waging, war against Government of India.
In appeal the High Court dismissed the appeals of 1. Mohd. Afzal, 2. Shaukat Hussain Guru and
confirmed the death sentence imposed on them. As regards 3. A.S. Gilani and 4. Navjot Sandhu alias
Afsan Guru, the High Court acquitted them of all the charges.
The Supreme Court by its judgment dated 4th August 2005,6. dismissed the appeal filed by Mohd. Afzal
and confirmed the death sentence imposed on him. As regards Shaukat Hussain Guru his appeal was
partly allowed.
He was convicted under section 123, IPC7. for concealing with intent, to facilitate design to wage war and
sentenced to 10 years of rigorous imprisonment and a fine of Rs. 25,000. State appealed against the
acquittal of A.S. Gilani and Navjot Sandhu alias Afsan Guru were dismissed by the Supreme Court.
Aggrieved by the dismissal of the review petition, against his conviction on 22 September 2005 the
petitioner Shaukat Hussain filed a curative petition before the Supreme Court on the ground that, the
petitioner had not been charged under section 123, IPC but has been convicted under that offence
depriving him of an opportunity to prove the defence available under section 39(1) of the Code of Criminal
Procedure. The petitioner further pleaded that his conviction under section 123 IPC is not only without
jurisdiction, but was in total contravention of the principle of natural justice.
Dismissing the curative petition a Bench of four judges on 12 January 2007 held that:
The fact that, there was no charge against him (the petitioner) under this particular section does not in any way, result in prejudice to
him because the charge of waging war and other allied offences are the subject-matter of charges. We are of the view that that the
accused Shaukat is not in any way handicapped by the absence of charge under section 123 IPC. The case which he had to meet under
section 123 is no different from the case relating to the major charges which he was confronted with. In the face of the stand he had
taken and his conduct even after the attack, he could not have pleaded reasonable excuse for not passing on the information. Viewed
from any angle, the evidence on record justifies his conviction under section 123, IPC.
The accused Shaukat having known about the plans of Afzal8. in collaboration with terrorists, he
refrained from informing the police or Magistrate intending thereby or knowing it to be likely that such
concealment on his part will facilitate the waging of war. It is in this context, it is relevant to refer to section
39 CrPC:
Section 39 Public to give Information of certain offences: (1) Every person, aware of the concealment of, or of the intention of any
other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, namely: (i) Sections 121 to
126, both inclusive, and section 130 (that, is to say, offences against the State specified in Chapter VI of the said Code)……. shall, in
Page 4 of 4
the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give
information to the nearest Magistrate or police officer of such commission or intention.
Thus, by his illegal omission to apprise the police or Magistrate of the design of Afzal and other
conspirators to attack Parliament which is an act of waging war, the appellant Shaukat has made himself
liable for punishment for the lesser offence under section 123, IPC.
Under section 39(v), CrPC, 1973 when a person is aware of the commission or an intention to commit an
offence under sections 302, 303 and 304, IPC, he is bound to give information to the nearest Magistrate or
police officer of such commission or of its intention and failure to do so is punishable under this section.
But it must be shown that the accused was aware of the commission of the offence, or of the intention to
commit it by another. Thus, when the mother of a murderer (suspect) merely said that her son and
daughter-in-law went to bed at about 10:00 p.m. and that early next morning her son ran away and she
found her daughter-in-law lying dead on the bed, it was held that her failure to inform the police did not
constitute an offence under section 176, IPC as she was neither aware that a murder was going to be
committed, nor was she aware that a murder had been committed.
3. AIR 2008 SC 2419 : 2008 Cr LJ 3016 : 2008 AIR SCW 3688 : (2008) 6 SCC 776 , P.P. Naolekar and V.S. Sirpukar, JJ, delivered the
judgment..
4. Prevention of Terrorists Act, sections 3(2), 3(3), 3(4), 3(5) and 4(b) (now repealed).
5. Section 121 IPC Waging, attempting or abetting, to wage war against Government of India; section 121A conspiracy to commit offences
under section 121, IPC, section 122, IPC colleting arms, etc. with the intention of waging war against the Government of India.
6. State (NCT of Delhi) v Navjot Sandhu, (2005) 11 SCC 600 : LNIND 2005 SC 580 .
7. Section 123, IPC reads: Concealing with intent to facilitate design to wage war – Whoever by any act, or by any illegal omission; conceals
the existence of a design to wage war against the Government of India, intending by such concealment to facilitate, or knowing it to be
likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.
8. The appellant Shaukat had the knowledge of conspiracy and the plans to attack the Parliament House. His close association with Afzal
during the crucial period, his visits to the hide outs to meet Afzal, which implies awareness of the activites of Afzal, the last minute
contacts between him and Afzal and their immediate departure to Srinagar in Shaukat’s truck with the incriminating laptop and phone
held by Afzal would certainly give rise to a high degree of probability of knowledge on the part of the Shaukat that his cousin had
connections with others to attack Parliament and to indulge in the terrorists acts. He was aware of what was going on and he used to
extend help to Afzal whenever necessary; See Justice Ripusuden Dayal v State of Madhya Pradesh, AIR 2014 SC 1335 .
End of Document
[s 40] Duty of officers employed in connection with the affairs of a village to make
certain report.—
K D Gaur

CHAPTER IV
[s 40] Duty of officers employed in connection with the affairs of a village to make
certain report.—
(1) Every officer employed in connection with the affairs of a village and every person
residing in a village shall forthwith communicate to the nearest Magistrate or to the
officer in charge of the nearest police station, whichever is nearer, any information which
he may possess respecting—
(a) the permanent or temporary residence of any notorious receiver or vendor of stolen
property in or near such village;
(b) the resort to any place within, or the passage through, such village of any person
whom he knows, or reasonably suspects, to be a thug , robber, escaped convict or
proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any non-bailable
offence or any offence punishable under section 143, section 144, section 145, section
147 or section 148 of the Indian Penal Code (45 of 1860);
(d) the occurrence in or near such village of any sudden or unnatural death or of any
death under suspicious circumstances or the discovery in or near such village of any
corpse or part of a corpse, in circumstances which lead to a reasonable suspicion that
such a death has occurred or the disappearance from such village of any person in
circumstances which lead to a reasonable suspicion that a non-bailable offence has
been committed in respect of such person;
(e) the commission of, or intention to commit, at any place out of India near such village
any act which, if committed in India, would be an offence punishable under any of the
following sections of the Indian Penal Code (45 of 1860), namely, 231 to 238 (both
inclusive), 302, 304, 382, 392 to 399 (both inclusive), 402, 435, 436, 449, 450, 457 to 460
(both inclusive), 489A, 489B, 489C and 489D;
Page 2 of 3
[s 40] Duty of officers employed in connection with the affairs of a village to make certain report.—
(f) any matter likely to affect the maintenance of order of the prevention of crime or the
safety of person or property respecting which the District Magistrate, by general or
special order made with the previous sanction of the State Government, has directed
him to communicate information.
(2) In this section,—
(i) “village” includes village-lands;

(ii) the expression “proclaimed offender” includes any person proclaimed as an offender
by any Court or authority in any territory in India to which this Code does not extend,
in respect of any act which if committed in the territories to which this Code extends,
would be an offence punishable under any of the following sections of the Indian
Penal Code (45 of 1860), namely, 302, 304, 382, 392 to 399 (both inclusive), 402, 435,
436, 449, 450 and 457 to 460 (both inclusive);
(iii) the words “officer employed in connection with the affairs of the village” means a
member of the panchayat of the village and includes the headman and every officer or
other person appointed to perform any function connected with the administration of
the village.
COMMENTS
[s 40.1] Legally Bound to give any Notice or to Furnish Information
To bring home the charge to the accused, he must be shown to be legally bound to furnish information.
In Shridhar,9. the petitioner, village headman, was held liable under this section for not reporting to the
police about the commission of suicide by a man in the village as required by section 40 of the Criminal
Procedure Code, 1973. When a person is not legally bound to furnish information this section does not
apply.
[s 40.2] Omission to Furnish Informations to Public Servant
This section is applicable to persons upon whom an obligation is imposed by law to give or to furnish
certain informations to public servants.10. The gist of the offence under this section is that the accused
was legally bound to furnish a certain information to the public servant, and he intentionally omitted to
given the information.11. The section is not applicable if the public servant has already obtained
information from other sources.
Section 40 CrPC fixes a legal duty on the part of a village officer employed by the Government and every
person residing in the village to inform to the following six category of information so that necessary
steps may be initiated by the concerned authorities to initiate proceedings against the person concerned:
(1) Permanent or temporary residence of any notorious receiver or vender of stolen property.
(2) Resort to any place where a thug, robber, escaped convict or proclaimed offender resides.
Page 3 of 3
[s 40] Duty of officers employed in connection with the affairs of a village to make certain report.—
(3) Commission or intention to commit any non-bailable offence or any offence punishable under
sections 143, 144, 145, 147 or 148 of IPC.
(4) Occurrence of any sudden or unnatural death of any person under suspicious circumstances.
(5) Commission of, or intentions to commit at any place outside India any act if committed in India
would be punishable under any of the offences mentioned section 4 sub-clause (c).
(6) Any matter likely to affect the maintenance of order or prevention of crime or safety of the
person or property etc.
In case of failure to inform to the police or nearest magistrate about the commission of the offence the
person is liable to be punished under section 176, IPC, with imprisonment which may extend to one month
or fine or with both. For instance, if A, a village watchman, knowing that a considerable body of strangers
has passed through his village in order to commit a dacoity in the house of Z, a wealthy merchant residing
in a neighbouring place, and being bound under clause 5, section VII, Regulation III, 1821, of the Bengal
Code, to give early and punctual information of the above fact to the officer of the nearest police station,
wilfully misinforms the police officer that a body of suspicious characters passed through the village with
a view to commit dacoity in a certain distant place in a different direction. Here A is guilty of the offence
defined in the later part of this section.
Similarly, A, a landholder, knowing of the commission of a murder within the limits of his estate, willfully
misinforms the Magistrate of the district that the death has occurred by accident in consequence of the
bite of a snake. A is guilty of the offence defined in section 176 of IPC with imprisonment which may
extend to one month or fine or with both.
9. Queen Empress v Gopal Singh, ILR 20 Cal 316.
10. R.K. Dalmia v Delhi Administration, AIR 1962 SC 1821 : (1963) 1 SCR 253 : (1962) 2 Cr LJ 805 : (1962) 32 CC 699 . A chartered
accountant is not a public servant within the definition of section 21, IPC.
11. Shridhar v State of Himachal Pradesh, AIR 1954 HP 67 : 1954 Cr LJ 1465 .
End of Document
[s 41] When police may arrest without warrant.—
K D Gaur
Criminal Procedure, 2nd ed > THE CODE OF CRIMINAL PROCEDURE, 1973 > CHAPTER V
ARREST OF PERSONS

CHAPTER V ARREST OF PERSONS
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest
any person—
1. [(a) who commits, in the presence of a police officer, a cognizable offence;
(b) against whom a reasonable complaint has been made, or credible information has
been received, or a reasonable suspicion exists that he has committed a cognizable
offence punishable with imprisonment for a term which may be less than seven years
or which may extend to seven years whether with or without fine, if the following
conditions are satisfied, namely:—
(i) the police officer has reason to believe on the basis of such complaint, information,
or suspicion that such person has committed the said offence;
(ii) the police officer is satisfied that such arrest is necessary—
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear
or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required
cannot be ensured,
and the police officer shall record while making such arrest, his reasons in
writing:
2. [Provided that a police officer shall, in all cases where the arrest of a
person is not required under the provisions of this sub-section, record the
reasons in writing for not making the arrest.]
Page 2 of 4
(ba) against whom credible information has been received that he has committed a
cognizable offence punishable with imprisonment for a term which may extend to
more than seven years whether with or without fine or with death sentence and the
police officer has reason to believe on the basis of that information that such person
has committed the said offence;]
(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 made under sub-section
(5) of section 356; 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 cause 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.
3.[(2) Subject to the provisions of section 42, no person concerned in a non-cognizable
offence or against whom a complaint has been made or credible information has been
received or reasonable suspicion exists of his having so concerned, shall be arrested
except under a warrant or order of a Magistrate.]
COMMENTS
[s 41.1] Sections 41, 151, 2(c), 156 and 157(1) and Constitution of India Articles 21 and 22(1) – Duty
of police officer to arrest a person in cognizable offence – Nature of – Whether mandatory
A police officer is not bound to arrest even in case of a cognizable offence.4. When a police officer should
arrest and when not is clarified in Joginder Kumar v State of Uttar Pradesh.
Section 2(c) CrPC defines a cognizable offence as an offence in which a police officer may arrest without
warrant. Similarly section 41 CrPC states that a police officer may arrest a person involved in a cognizable
offence. The use of the word “may” shows that a police officer is not bound to arrest even in a case of a
cognizable offence. Again in section 157(1) CrPC it is mentioned that a police officer shall investigate a case
Page 3 of 4
relating to a cognizable offence, and if necessary take measures for the arrest of the offender. This again
makes it clear that arrest is not a must in every case of a cognizable offence. When a police officer should
arrest and when not is clarified in Joginder Kumar case.5.
Despite the categorical judgment of the Supreme Court made in Joginder Kumar case, it appears that the
police is not at all implementing it. What invariably happens is that whenever an FIR of a cognizable
offence is lodged the police immediately goes to arrest the accused person. This is clear violation of the
aforesaid judgment of the Supreme Court. Therefore, a strict compliance with the said judgment is
directed herein. (Paras 42 and 60).6.
[s 41.2] Arrest and Custody Distinguished
[s 41.2.1] Arrest
Arrest means the restraining of the liberty of a man’s person in order to compel obedience to the order of
a Court of justice, or to prevent the commission of a crime, to ensure that a person charged or suspected
of a crime may be forthcoming to answer it. Arrests are either in civil or criminal cases.7. Arrest is a part
of the process of investigation intended to secure several purposes.8. In other words, for smooth
investigation section 41 empowers the police officer to arrest a person suspected of committing a crime or
about to be committed a crime without a warrant issued by a Magistrate. Of course, suspicion must be
based on “reasonable” credible information and not on fanciful suspicion. Section is quite exhaustive and
gives power to a police officer is nine category of cases listed in the section to arrest a person without
warrant. This is based on the principle that prevention is better than cure. It is desirable to nip in the bud
instead of waiting for actual commission of crimes. Thus arrest is a mode of formally taking a person in
police custody.
[s 41.2.2] Custody
On the other hand, “custody” merely denotes surveillance or restriction on the movement of the person
concerned. A person may be taken into custody completely or even partially, custody is different from
formal “arrest”. Thus in every arrest there is custody but the converse is not true. That is in every
“custody” there is no arrest. The word “custody” is of elastic semantics, but its core meaning is that, the
law has taken control of the person.9.
1. Subs. by Act 5 of 2009, sec. 5(i), for clauses (a) and (b) (w.e.f. 1-11-2010). Clauses (a) and (b), before substitution, stood as under:
“(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
house-breaking; or...”.
3. Subs. by Act 5 of 2009, sec. 5(ii), for sub-section (2) (w.e.f. 1-11-2010). Sub-section (2), before substitution, stood as under:
Page 4 of 4
“(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or
more of the categories of persons specified in section 109 or section 110.”.
4. AIR 1994 SC 1349 : (1994) 4 SCC 260 : 1994 Cr LJ 1981 : 1994 AIR SCW 1886 : 1994 (2) SCJ 230 ; Som Mittal v Governtment of
Karnataka, (2008) 3 SCC 753 : (2008) 1 SCC (L&S) 895 : (2008) 2 SCC (Cri) 73 : AIR 2008 SC 1126 : (2008) 2 LLN 690 : 2008 Cr LJ
1610 .
5. (1994) 4 SCC 260 . (Paras 43 and 44) Justices H.K. Sema and Markandey Katju, JJ, delivered judgment.
6. Som Mittal v Governtment of Karnataka, (2008) 3 SCC 753 : (2008) 1 SCC (L&S) 895 : (2008) 2 SCC (Cri) 73 : AIR 2008 SC 1126 : (2008) 2
LLN 690 : 2008 Cr LJ 1610 .
7. See Wharton’s Law Lexicon, 15th Edn. p. 126.

8. Adri Dharan Das v State of West Bengal, (2005) 4 SCC 303 : AIR 2005 SC 1057 : 2005 AIR SCW 1013; see Code of Criminal Procedure, 1973
section 41 to 60.
9. Niranjan Singh v Prabhakar Rajaram Kharote, AIR 1980 SC 785 (787) : 1980 Cr LJ 426 : (1980) 2 SCC 559 : LNIND 1980 SC 112 .
End of Document
[s 41A] Notice of appearance before police officer.—
K D Gaur
ARREST OF PERSONS

10.[s 41A] Notice of appearance before police officer.—
(2) 11.[The police officer shall], in all cases where the arrest of a person is not required under
the provisions of sub-section (1) of section 41, issue a notice directing the person against
whom a reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists that he has committed a cognizable offence, to appear
before him or at such other place as may be specified in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of that person to comply
with the terms of the notice.
(3) Where such person complies and continues to comply with the notice, he shall not be
arrested in respect of the offence referred to in the notice unless, for reasons to be
recorded, the police officer is of the opinion that he ought to be arrested.
12.[(4) Where such person, at any time, fails to comply with the terms of the notice or is
unwilling to identify himself, the police officer may, subject to such orders as may have
been passed by a competent Court in this behalf, arrest him for the offence mentioned in
the notice.]]
COMMENTS
Sections 41A, 41B, 41C and 41D was inserted vide Code of Criminal Procedure (Amendment) Act, 2008 (5 of
2009)1. Section 41A empowers a police officer to issue a notice to the person against whom there is
credible information of commission of a cognizable offence, where arrest of the person is not warranted,
to appear before the police officer on date and time fixed by the officer concerned. In case such person
complies with such direction he will not be arrested, failing which of course, the person can be arrested.
Page 2 of 2
[s 41A] Notice of appearance before police officer.—
11. Subs. by Act 41 of 2010, sec. 3(a), for “The police officer may” (w.e.f. 1-11-2010).
12. Subs. by Act 41 of 2010, sec. 3(b), for sub-section (4) (w.e.f. 1-11-2010). Sub-section (4), before substitution, stood as under:
“(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police officer to arrest
him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent
Court.”.
End of Document
[s 41B] Procedure of arrest and duties of officer making arrest.—
K D Gaur
ARREST OF PERSONS

13.[s 41B] Procedure of arrest and duties of officer making arrest.—
Every police officer while making an arrest shall—
(a) bear an accurate, visible and clear identification of his name which will facilitate easy
identification;
(b) prepare a memorandum of arrest which shall be—
(i) attested by at least one witness, who is a member of the family of the person arrested
or a respectable member of the locality where the arrest is made;
(ii) countersigned by the person arrested; and
(c) inform the person arrested, unless the memorandum is attested by a member of his
family, that he has a right to have a relative or a friend named by him to be informed of
his arrest.]
COMMENTS
[s 41B.1] Procedure of Arrest
While making arrest police officer is bound to:
(a) bear an accurate, visible and clear identification of the name of the person to be arrested.
(b) prepare a memorandum of arrest which shall be:
Page 2 of 2
[s 41B] Procedure of arrest and duties of officer making arrest.—
(i) attested by atleast one witness.

(ii) counter-signed by the person arrested.
(c) inform the person arrested, unless the memorandum is attested by a family member or a relative
or a friend.
End of Document
[s 41C] Control room at districts.—
K D Gaur
ARREST OF PERSONS

14.[s 41C] Control room at districts.—
(1) The State Government shall establish a police control room—

(a) in every district; and
(b) at State level.
(2) The State Government shall cause to be displayed on the notice board kept outside the
control rooms at every district, the names and addresses of the persons arrested and the
name and designation of the police officers who made the arrests.
(3) The control room at the Police Headquarters at the State level shall collect from time to
time, details about the persons arrested, nature of the offence with which they are
charged, and maintain a database for the information of the general public.]
COMMENTS
[s 41C.1] Control Room at Districts
The State Government shall establish a police control room in every District, and at State level. The
names and addresses of the person arrested and the name, address of the officer who arrested shall be
displayed on the notice board kept outside the control room.
End of Document
[s 41D] Control room at districts.—
K D Gaur
ARREST OF PERSONS

15.[s 41D] Control room at districts.—
Right of arrested person to meet an advocate of his choice during interrogation.—When any
person is arrested and interrogated by the police, he shall be entitled to meet an advocate of his
choice during interrogation, though not throughout interrogation.]
COMMENTS
An arrested person shall be entitled to meet an advocate of his choice during interrogation.
End of Document
[s 42] Arrest on refusal to give name and residence.—
K D Gaur
ARREST OF PERSONS

(1) When any person who, in the presence of a police officer, has committed or has been
accused of committing a non-cognizable offence refuses, on demand of such officer, to
give his name and residence or gives a name or residence which such officer has reason to
believe to be false, he may be arrested by such officer in order that his name or residence
may be ascertained.
(2) When the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties, to appear before a Magistrate
if so required:
Provided that, if such person is not resident in India, the bond shall be secured by a
surety or sureties resident in India.
(3) Should the true name and residence of such person not be ascertained within twenty-four
hours from the time of arrest or should he fail to execute the bond, or, if so required, to
furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate
having jurisdiction.
COMMENTS
This section relates to commission of an offence of non-cognizable nature committed by a person in the
presence of a police officer. When the person refuses to give identity, i.e., name and address etc., or gives
name and address which appear to be false, the police officer can arrest the person unless he gives correct
name and address.
Sub-section (2) provides that such a person shall be released after executing a bond with or without surety
who is an Indian citizen.
Page 2 of 2
End of Document
[s 43] Arrest by private person and procedure on such arrest.—
K D Gaur
ARREST OF PERSONS

[s 43] Arrest by private person and procedure on such arrest.—
(1) Any private person may arrest or cause to be arrested any person who in his presence
commits a non-bailable and cognizable offence, or any proclaimed offender, and, without
unnecessary delay, shall make over or cause to be made over any person so arrested to a
police officer, or, in the absence of a police officer, take such person or cause him to be
taken in custody to the nearest police station.
(2) If there is reason to believe that such person comes under the provisions of section 41, a
police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable offence, and he
refuses on the demand of a police officer to give his name and residence, or gives a name
or residence which such officer has reason to believe to be false, he shall be dealt with
under the provisions of section 42; but if there is no sufficient reason to believe that he has
committed any offence, he shall be at once released.
COMMENTS
Section 43 empowers a private person to arrest or cause to be arrested any person who in his presence
commits any non-bailable and cognizable offence. After making arrest the person shall be taken to the
nearest police station.
End of Document
[s 44] Arrest by Magistrate.—
K D Gaur
ARREST OF PERSONS

[s 44] Arrest by Magistrate.—
(1) When any offence is committed in the presence of a Magistrate, whether Executive or
Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest
the offender, and may thereupon, subject to the provisions herein contained as to bail,
commit the offender to custody.
(2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest,
in his presence, within his local jurisdiction, of any person for whose arrest he is
competent at the time and in the circumstances to issue a warrant.
COMMENTS
Section 44 in sub-sections (1) and (2) empowers a Magistrate whether Executive or Judicial may either
himself or cause the person to be arrested within his local jurisdiction when any offence is committed in
his presence.
End of Document
[s 45] Protection of members of the Armed Forces from arrest.—
K D Gaur
ARREST OF PERSONS

(1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of

the Armed Forces of the Union shall be arrested for anything done or purported to be
done by him in the discharge of his official duties except after obtaining the consent of
the Central Government.
(2) The State Government may, by notification, direct that the provisions of sub-section (1)
shall apply to such class or category of the members of the Force charged with the
maintenance of public order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub-section shall apply as if for the expression
“Central Government” occurring therein, the expression “State Government” were
substituted.
Assam:
(2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply—
(a) to such class or category of the members of the Forces charged with the maintenance of public
order, or
(b) to such class or category of other public servants [not being persons to whom the provisions of
sub-section (1) apply] charged with the maintenance of public order,
Page 2 of 2
as may be specified in the notification, wherever, they may be serving, and thereupon the provisions of
that sub-section shall apply as if for the expression “Central Government” occurring therein, the
expression “State Government” were substituted.
[Vide Assam Act 3 of 1980, section 2 (w.e.f. 5-6-1980).]
COMMENTS
Section 45 exempts and gives protection to members of the armed forces of the Union Government from
arrest notwithstanding anything contained in sections 41 to 44 for anything done or purported to be done
in discharge of his official duty. Of course, such persons may be arrested after obtaining consent from the
Central Government.
End of Document
[s 46] Arrest how made.—
K D Gaur
ARREST OF PERSONS

(1) In making an arrest the police officer or other person making the same shall actually
touch or confine the body of the person to be arrested, unless there be a submission to the
custody by word or action:
16.[Provided that where a woman is to be arrested, unless the circumstances indicate

to the contrary, her submission to custody on an oral intimation of arrest shall be
presumed and, unless the circumstances otherwise require or unless the police officer
is a female, the police officer shall not touch the person of the woman for making her
arrest.]
(2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is not accused of
an offence punishable with death or with imprisonment for life.
17.[(4) Save in exceptional circumstances, no woman shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exist, the woman police officer shall,
by making a written report, obtain the prior permission of the Judicial Magistrate of the
first class within whose local jurisdiction the offence is committed or the arrest is to be
made.]
COMMENTS
[s 46.1] Mode of Arrest
As stated earlier arrest consists of taking into legal custody by a police officer or other person. In case of a
woman arrest will be made by a lady police officer. In case the person to be arrested shows resistance,
force might be used. But the force shall not exceed to the extent of causing death unless the offence
committed by the accused is guilty of causing death or of an offence for which death or life imprisonment
may be provided. Ordinarily a woman shall not be arrested after sunset and before sunrise. However, in
Page 2 of 2
exceptional circumstances with prior permission of a Magistrate of the area woman might be arrested.
And arrest of a woman shall take place by a woman police officer.
End of Document
[s 47] Search of place entered by person sought to be arrested.—
K D Gaur
ARREST OF PERSONS

(1) If any person acting under a warrant of arrest, or any police officer having authority to
arrest, has reason to believe that the person to be arrested has entered into, or is within,
any place, any person residing in, or being in charge of, such place shall, on demand of
such person acting as aforesaid or such police officer, allow him free ingress thereto, and
afford all reasonable facilities for a search therein.
(2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any
case for a person acting under a warrant and in any case in which a warrant may issue,
but cannot be obtained without affording the person to be arrested an opportunity of
escape, for a police officer to enter such place and search therein, and in order to effect an
entrance into such place, to break open any outer or inner door or window of any house or
place, whether that of the person to be arrested or of any other person, if after notification
of his authority and purposes, and demand of admittance duly made, he cannot otherwise
obtain admittance:
Provided that, if any such place is an apartment in the actual occupancy of a female
(not being the person to be arrested) who, according to custom, does not appear in
public, such person or police officer shall, before entering such apartment, give notice
to such female that she is at liberty to withdraw and shall afford her every reasonable
facility for withdrawing, and may then break open the apartment and enter it.
(3) Any police officer or other person authorised to make an arrest may break open any outer
or inner door or window of any house or place in order to liberate himself or any other
person who, having lawfully entered for the purpose of making an arrest, is detained
therein.
COMMENTS
[s 47.1] Mode of Search
Section 47 prescribes the mode of search of a person hiding in a place. In case the person to be arrested is
Page 2 of 2
suspected to be hiding he must provide all facilities to the police officer to enter in the premises and make
search of the person and arrest if found hiding in the house.
In case of a house or apartment occupied by a female, the police officer must give notice to the female
occupant to withdraw from the police and allow free entry into the house to the police and arrest the
person if found. In case of resistance the police officer may break open any outer/inner door in order to
arrest the person and liberate himself.
End of Document
[s 48] Pursuit of offenders into other jurisdictions.—
K D Gaur
ARREST OF PERSONS

[s 48] Pursuit of offenders into other jurisdictions.—
A police officer may, for the purpose of arresting without warrant any person whom he is
authorised to arrest, pursue such person into any place in India.
COMMENTS
According to section 48 a police officer may for the purpose of arresting an offender when he is
authorised to arrest pursue such person into any place in India. For instance, a person committing an
offence in Pune goes to Mumbai, the police officer can go to Mumbai and arrest the offender.
End of Document
[s 49] No unnecessary restraint.—
K D Gaur
ARREST OF PERSONS

[s 49] No unnecessary restraint.—
The person arrested shall not be subjected to more restraint than is necessary to prevent his
escape.
COMMENTS
A person who has been arrested be not subjected to more restraint than necessary in order to prevent his
escape. For instance, a person kept in police lock-up need not be hand cuffed or chained.
End of Document
[s 50] Person arrested to be informed of grounds of arrest and of right to bail.—
K D Gaur
ARREST OF PERSONS

(1) Every police officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested or other
grounds for such arrest.
(2) Where a police officer arrests without warrant any person other than a person accused of a
non-bailable offence, he shall inform the person arrested that he is entitled to be released
on bail and that he may arrange for sureties on his behalf.
COMMENTS
[s 50.1] Person Arrested without Warrant
Section 50 is in consonance with Article 22(1) of the Constitution which provides that a person arrested must
be informed the grounds of his arrest and full particulars of the offence for which he is arrested. And a
person entitled to bail after furnishing bail bond with sureties will be set free.
In Sk Raj @ Abdul Haque @ Jagga v State of West Bengal.18. Dr. Dhananjaya Y. Chandrachud, J. for the
open court said, the present appeal is directed against a judgment of a Division Bench of the Calcutta
High Court which held section 50 of CrPC is attracted in this case. The High Court upheld the conviction of
the appellant by the Additional Sessions Judge (“ASJ”) and Special Court under the Narcotic Drugs and
Psychotropic Substances Act, 1985. The ASJ had convicted the appellant of an offence punishable under
section 20(b)(ii)(C)19. of the Act.
The facts of the case are as follows. On 15 November 2011, the Sub-inspector Prasanta Kr. Das,
Narcotics Cell, (PW-2) received information that the drug dealer would be in the vicinity of Tiljala
Galguni Club, 38B/1, Picnic Garden, near Tiljala Police Station to supply narcotic drugs in the afternoon.
The Appellant was intercepted, searched and detained immediately by the raiding party.
PW-2 recovered nineteen deep brown/blackfish broken rectangular sheet from a black polythene packet
Page 2 of 2
which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets
were also weighed using a weighing scale. The appellant was found to be in possession of 1.5 kilograms of
charas. Cash accounting to Rs. 2400/- was recovered from the trouser of the appellant.
18. [2018] 4 MLJ (CRL) 338 : LNIND 2018 SC 419 , Dipak Misra CJI, Dr. Justice D.Y. Chandrachud and Ms. Indira Banerjee JJ delivered
the judgment.
19. Section 20(b)(ii)(C) states Punishment for contraventions in relations to cannabis plant and cannabis. Whoever, in contraventions of any
provisions of this Act or any rule or order made or conditions of licence granted thereunder
***
(ii) where such contravention relates to sub-clause (b)
***
(C) and involves commercial quantity with rigorous imprisonment for a term which shall not be less than ten years but which may
extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh
rupees.
End of Document
[s 50A] Obligation of person making arrest to inform about the arrest, etc., to a
nominated person.—
K D Gaur
ARREST OF PERSONS

20.[s 50A] Obligation of person making arrest to inform about the arrest, etc., to a
nominated person.—
(1) Every police officer or other person making any arrest under this Code shall forthwith
give the information regarding such arrest and place where the arrested person is being
held to any of his friends, relatives or such other persons as may be disclosed or
nominated by the arrested person for the purpose of giving such information.
(2) The police officer shall inform the arrested person of his rights under sub-section (1) as
soon as he is brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be
made in a book to be kept in the police station in such form as may be prescribed in this
behalf by the State Government.
(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to
satisfy himself that the requirements of sub-section (2) and sub-section (3) have been
complied with in respect of such arrested person.]
COMMENTS
[s 50A.1] Obligation of Police to Inform to Relatives or Friends of Arrested Persons:
A police officer making any arrest under the Code must inform to his friends and relatives about the
arrest of the person and place where he has been kept in detention. An entry to the fact of arrest must be
made in a book kept in the police station. The police officer must inform the arrested person of his rights
and obligation. It shall be duty of the Magistrate to ascertain whether the provisions contained under sub-
sections (2) and (3) have been complied or not.
Page 2 of 2
[s 50A] Obligation of person making arrest to inform about the arrest, etc., to a nominated person.—
End of Document
[s 51] Search of arrested person.—
K D Gaur
ARREST OF PERSONS

[s 51] Search of arrested person.—
(1) Whenever a person is arrested by a police officer under a warrant which does not provide
for the taking of bail, or under a warrant which provides for the taking of bail but the
person arrested cannot furnish bail, and whenever a person is arrested without warrant, or
by a private person under a warrant, and cannot legally be admitted to bail, or is unable to
furnish bail, the officer making the arrest or, when the arrest is made by a private person,
the police officer to whom he makes over the person arrested, may search such person,
and place in safe custody all articles, other, than necessary wearing-apparel, found upon
him and where any article is seized from the arrested person, a receipt showing the
articles taken in possession by the police officer shall be given to such person.
(2) Whenever it is necessary to cause a female to be searched, the search shall be made by
another female with strict regard to decency.
COMMENTS
Section 51 authorises to make a search of the person arrested under a warrant which does not provide for
bail or if it provide for granting of bail but the persons arrested cannot furnish bail. All articles ceased
from the body of the arrested person shall be kept in safe custody after making a list of the articles.
In case of search of an arrested woman search will be made by a woman police officer.
End of Document
[s 52] Power to seize offensive weapons.—
K D Gaur
ARREST OF PERSONS

[s 52] Power to seize offensive weapons.—
The officer or other person making any arrest under this Code may take from the person arrested
any offensive weapons which he has about his person, and shall deliver all weapons so taken to
the Court or officer before which or whom the officer or person making the arrest is required by
this Code to produce the person arrested.
COMMENTS
Offensive weapons seized from the person of the arrested person shall be produced before the Court or
kept in custody of the police in lock-up and will be produced in Court when required.
End of Document
[s 53] Examination of accused by medical practitioner at the request of police
officer.—
K D Gaur
ARREST OF PERSONS

[s 53] Examination of accused by medical practitioner at the request of police

officer.—
(1) When a person is arrested on a charge of committing an offence of such a nature and
alleged to have been committed under such circumstances that there are reasonable
grounds for believing that an examination of his person will afford evidence as to the
commission of an offence, it shall be lawful for a registered medical practitioner, acting at
the request of a police officer not below the rank of sub-inspector, and for any person
acting in good faith in his aid and under his direction, to make such an examination of
the person arrested as is reasonably necessary in order to ascertain the facts which may
afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination
shall be made only by, or under the supervision of, a female registered medical
practitioner.
21.[Explanation.—In this section and in sections 53A and 54,—

(a) “examination” shall include the examination of blood, blood stains, semen, swabs in
case of sexual offences, sputum and sweat, hair samples and finger nail clippings by
the use of modern and scientific techniques including DNA profiling and such other
tests which the registered medical practitioner thinks necessary in a particular case;
(b) “registered medical practitioner” means a medical practitioner who possess any
medical qualification as defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical
Register.]
COMMENTS
Section 53 sub-section (1) empowers the police to get the accused examined by a registered medical
doctor to ascertain under what circumstances the crime was committed. For instance, in case of a drunk
Page 2 of 2
[s 53] Examination of accused by medical practitioner at the request of police officer.—
and driving case the driver is examined to ascertain the quantity of alcohol in his blood to ascertain
whether he was in a fit condition of driving or not when the accident took place. Sub-section (2) provides
that when the person of the female is to be examined it has to be done only by a female doctor.
Explanation (a) states that examination has a wider spectrum, such as examination of blood, blood stains,
semen, swabs in case of sexual offences, sputum, sweat, hair and finger nail clipping including DNA to
ascertain the real culprit for the purpose of proper and effective investigation.
Test results of polygraph and brain, finger printing tests taken by threat and using third degree method
have been held to be barred vide Article 20(3)22. of the Constitution.
21. Subs. by Act 25 of 2005, sec. 8, for Explanation (w.e.f. 23-6-2006).Explanation, before substitution, stood as under:
“Explanation.—In this section and in section 54, “registered medical practitioner” means a medical practitioner who possesses any
recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose
name has been entered in a State Medical Register”.
22. Article 30(3) states “No person accused of an offence shall be compelled to be a witness against himself”.
End of Document
[s 53A] Examination of person accused of rape by medical practitioner.—
K D Gaur
ARREST OF PERSONS

23.[s 53A] Examination of person accused of rape by medical practitioner.—
(1) When a person is arrested on a charge of committing an offence of rape or an attempt to

commit rape and there are reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of such offence, it shall be lawful for a
registered medical practitioner employed in a hospital run by the Government or by a
local authority and in the absence of such a practitioner within the radius of sixteen
kilometers from the place where the offence has been committed by any other registered
medical practitioner acting at the request of a police officer not below the rank of a sub-
inspector, and for any person acting in good faith in his aid and under his direction, to
make such an examination of the arrested person and to use such force as is reasonably
necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following
particulars, namely:—
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling,
and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(4) The exact time of commencement and completion of the examination shall also be noted
in the report.
(5) The registered medical practitioner shall, without delay, forward the report of the
investigating officer, who shall forward it to the Magistrate referred to in section 173 as
part of the documents referred to in clause (a) of sub-section (5) of that section.]
COMMENTS
Page 2 of 2
[s 53A] Examination of person accused of rape by medical practitioner.—
Section 53A was added in the Code in 2006 in order to facilitate investigation in case of offences relating
to sexual offences of rape or an attempt to commit rape. The section requires that a person arrested on a
charge of rape must be examined by a registered medical practitioner employed preferably in Government
hospital and in case such doctor is not available by any other registered medical practitioner.
As provided under sub-section (7) such registered medical practitioner after conducting examination shall
furnish a detailed report of his examination in the following order:
(1) Name, age and address of accused.

(2) Marks of injury, if any.
(3) Description of materials taken from the person of the accused.
(4) Report shall state reasons for arriving at a particular conclusion.
(5) Exact time of commencement and completion of examination of the report.
According to sub-section (5) the medical officer after concluding a detailed examination forward it to the
investigating officer who shall forward it to the concerned Court, where trial is to commence.
End of Document
[s 54] Examination of arrested person by medical officer.—
K D Gaur
ARREST OF PERSONS

24.[s 54] Examination of arrested person by medical officer.—
(1) When any person is arrested, he shall be examined by a medical officer in the service of
Central or State Governments and in case the medical officer is not available by a
registered medical practitioner soon after the arrest is made:
Provided that where the arrested person is a female, the examination of the body shall
be made only by or under the supervision of a female medical officer, and in case the
female medical officer is not available, by a female registered medical practitioner.
(2) The medical officer or a registered medical practitioner so examining the arrested person
shall prepare the record of such examination, mentioning therein any injuries or marks of
violence upon the person arrested, and the approximate time when such injuries or marks
may have been inflicted.
(3) Where an examination is made under sub-section (1), a copy of the report of such
examination shall be furnished by the medical officer or registered medical practitioner,
as the case may be, to the arrested person or the person nominated by such arrested
person.]
Uttar Pradesh:
In section 54, add the following at the end, namely:—
The registered medical practitioner shall forthwith furnish to the arrested person a copy of the report of such examination free of cost.
Page 2 of 3
Section 54A
54A. Test identification of the accused.—When a person is arrested on a charge of committing an offence and his test identification by any
witness is considered necessary by any Court having jurisdiction, it shall be lawful for an Executive Magistrate acting at the instance of
such Court, to hold test identification of the person arrested.
Ed.—These amendments were made prior to substitution of section 54 by the Code of Criminal Procedure
(Amendment) Act, 2008 (Central Act 5 of 2009), section 8 (w.e.f. 31-12-2009).
COMMENTS
[s 54.1] Examination of Arrested Person
Section 54 was added in the Code vide CrPC (Amendment) Act, 2008 with effect from 31-12-2009 for
earlier section. The substituted section makes it obligatory to examine an arrested person by a medical
practitioner as provided under earlier section 53 of the Code. Copy of the report shall be sent to the
investigation officer who in turn will forward it to the Court where trial is to commence.
24. Subs. by Act 5 of 2009, sec. 8, for section 54 (w.e.f. 31-12-2009). Earlier section 54 was amended by Act 25 of 2005 sec. 10 (w.e.f. 23-6-
2006). Section 54, before substitution by Act 5 of 2009, stood as under:
“54. Examination of arrested person by medical practitioner at the request of the arrested person.—(1) 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
Page 3 of 3
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.
(2) Where an examination is made under sub-section (1), a copy of the report of such examination shall be furnished by the registered
medical practitioner to the arrested person or the person nominated by such arrested person.”
End of Document
[s 54A] Identification of person arrested.—
K D Gaur
ARREST OF PERSONS

25.[s 54A] Identification of person arrested.—
Where a person is arrested on a charge of committing an offence and his identification by any
other person or persons is considered necessary for the purpose of investigation of such offence,
the Court, having jurisdiction, may on the request of the officer in charge of a police station,
direct the person so arrested to subject himself to identification by any person or persons in such
manner as the Court may deem fit:]
26. [Provided that, if the person identifying the person arrested is mentally or physically
disabled, such process of identification shall take place under the supervision of a Judicial
Magistrate who shall take appropriate steps to ensure that such person identifies the person
arrested using methods that person is comfortable with:
Provided further that if the person identifying the person arrested is mentally or physically
disabled, the identification process shall be videographed.]
COMMENTS
Section 54A was added in the Code with a view to facilitate investigation and identify the real culprit
necessary for the purpose of investigation of the offence in question.
A proviso clause in respect of identification of mentally ill or physically disabled has been added to ensure
that identification in such cases must take place under the direction and supervision of a Judicial
Magistrate. And that identification must be videographed.
[s 54A.1] Recent Amendment
In view of drastic amendment taken place in certain provisions of the IPC relating to the law of rape vide
The Criminal Law (Amendment) Act, 2013 (13 of 2013). A number of penal provisions were added in order
to punish those who were indulged in heinous crime of sexual offences against women. A changes made
in substantive law of IPC necessitated consequential amendment made in the procedural law of Code of
Criminal Procedure, 1973.
Page 2 of 2
[s 54A] Identification of person arrested.—
The updated relevant provision is as follows:
Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take
place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person
arrested using methods that person is comfortable with:
Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be
videographed.
26. Ins. by Act 13 of 2013, sec. 12 (w.r.e.f. 3-2-2013).
End of Document
[s 55] Procedure when police officer deputes subordinate to arrest without warrant.—
K D Gaur
ARREST OF PERSONS

[s 55] Procedure when police officer deputes subordinate to arrest without warrant.—
(1) When any officer in charge of a police station or any police officer making an
investigation under Chapter XII requires any officer subordinate to him to arrest without
a warrant (otherwise than in his presence) any person who may lawfully be arrested
without a warrant, he shall deliver to the officer required to make the arrest an order in
writing, specifying the person to be arrested and the offence or other cause for which the
arrest is to be made and the officer so required shall, before making the arrest, notify to
the person to be arrested the substance of the order and, if so required by such person,
shall show him the order.
(2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person
under section 41.
COMMENTS
Section 55 empowers a police officer making investigation to depute his subordinate in writing to arrest a
person without warrant as procurement of warrant would delay and the person required may disappear,
and purpose of arrest would be defeated.27.
27. Bir Bhadra Pratap Singh v D.M., Azamgarh, AIR 1955 All 438 : 1959 Cr LJ 685 : 1959 All LJ 50.
End of Document
[s 55A] Health and safety of arrested person.—
K D Gaur
ARREST OF PERSONS

28.[s 55A] Health and safety of arrested person.—
It shall be the duty of the person having the custody of an accused to take reasonable care of the
health and safety of the accused.]
COMMENTS
Section 53A was inserted in the 2008 vide Code of Criminal Code (Amendment) Act, 2008 with effect
from 31-12-2009. The object of this section is to ensure that the police should take care of health and
safety of the accused in its custody.
End of Document
[s 56] Person arrested to be taken before Magistrate or officer in charge of police
station.—
K D Gaur
ARREST OF PERSONS

[s 56] 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.
COMMENTS
Section 56 makes it obligatory for the police officer arresting a person without warrant to produce him
before the Magistrate having jurisdiction of the case within 24 hours of the arrest excluding the time taken
in travel.
End of Document
[s 57] Person arrested not to be detained more than twenty-four hours.—
K D Gaur
ARREST OF PERSONS

[s 57] Person arrested not to be detained more than twenty-four hours.—
No police officer shall detain in custody a person arrested without warrant for a longer period
than under all the circumstances of the case is reasonable, and such period shall not, in the
absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive
of the time necessary for the journey from the place of arrest to the Magistrate’s Court.
COMMENTS
Section 57 obliges a police officer arresting without warrant, not to keep in custody the person arrested
for more than 24 hours. The person must be produced within 24 hours before the Magistrate’s Court
excluding the period of journey.
End of Document
[s 58] Police to report apprehensions.—
K D Gaur
ARREST OF PERSONS

[s 58] Police to report apprehensions.—
Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to
the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits
of their respective stations, whether such persons have been admitted to bail or otherwise.
COMMENTS
A report concerning a person arrested without warrant be sent to District Magistrate or Sub-Divisional
Magistrate for necessary action as per law.
End of Document
[s 59] Discharge of person apprehended.—
K D Gaur
ARREST OF PERSONS

[s 59] Discharge of person apprehended.—
No person who has been arrested by a police officer shall be discharged except on his own bond,
or on bail, or under the special order of a Magistrate.
COMMENTS
Section 59 states that a person arrested without warrant shall not be discharged unless he executes a bond
or a bail is granted to him or he obtains a special order from a Magistrate.
End of Document
[s 60] Power, on escape, to pursue and retake.—
K D Gaur
ARREST OF PERSONS

[s 60] Power, on escape, to pursue and retake.—
(1) If a person in lawful custody escapes or is rescued, the person from whose custody he
escaped or was rescued may immediately pursue and arrest him in any place in India.
(2) The provisions of section 47 shall apply to arrests under sub-section (1) although the
person making any such arrest is not acting under a warrant and is not a police officer
having authority to arrest.
COMMENTS
Section 60 authorises a police officer to re-arrest a person, who has escaped from his custody, from any
place.
End of Document
[[s 60A] Power, on escape, to pursue and retake.—
K D Gaur
ARREST OF PERSONS

29.[[s 60A] Power, on escape, to pursue and retake.—
Arrest to be made strictly according to the Code.—No arrest shall be made except in accordance
with the provisions of this Code or any other law for the time being in force providing for arrest.]
COMMENTS
Section 60A was inserted in the Code vide Criminal Law (Amendment) Act, 2008 (5 of 2009) with effect from
31-12-2009 to ensure that arrest must be made strictly in accordance with the provisions of the Code of
Criminal Procedure, 1973.
End of Document
[s 61] Form of summons.—
K D Gaur
Criminal Procedure, 2nd ed > THE CODE OF CRIMINAL PROCEDURE, 1973 > CHAPTER VI
PROCESSES TO COMPEL APPEARANCE > A.—SUMMONS

CHAPTER VI PROCESSES TO COMPEL APPEARANCE
A.—SUMMONS
Every summons issued by a Court under this Code shall be in writing, in duplicate, signed by the
presiding officer of such Court or by such other officer as the High Court may, from time to time,
by rule direct, and shall bear the seal of the Court.
COMMENTS
Chapter VI in sections 61 to 90 prescribes the various modes of compelling the appearance of the accused
in a Court of law. The very first procedure is to issue summons to the accused as provided under sections
61 to 69. In case of non-appearance of the accused the Court will issue a warrant of arrest as prescribed
under sections 70 to 81. The third method of compelling appearance is provided under sections 82 to 86.
Proclamation and Attachment of properties belonging to ‘the accused’.
Section 61 prescribes the proforma of summons that must be in writing, in duplicate, signed by the
presiding officer of such Court or such Court as the High Court may from time-to-time direct.
In brief following six methods are provided for compelling the attendance of the accused in a Court of
law:
(1) By issue of summons, sections 61 to 69.

(2) By issue of warrant of arrest, sections 70 to 81.
(3) Proclamation of an offender, section 82.
(4) Attachment of property, sections 83 to 86.
Page 2 of 2
(5) Warrant in lieu of or in addition to summons, section 87.

(6) By taking bond with or without sureties, sections 88-89.
End of Document
[s 62] Summons how served.—
K D Gaur

A.—SUMMONS
[s 62] Summons how served.—
(1) Every summons shall be served by a police officer, or subject to such rules as the State
Government may make in this behalf, by an officer of the Court issuing it or other public
servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by
delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer,
sign a receipt therefor on the back of the other duplicate.
COMMENTS
A summon shall be served by a police officer or by an officer of a Court issuing it or other public servant.
Summon shall, if practicable served personally on the person summoned by delivering one of the
duplicate copy to the person summoned and summons so served shall, if so required must be signed by
the person receiving it.
End of Document
[s 63] Service of summons on corporate bodies and societies.—
K D Gaur

A.—SUMMONS
[s 63] Service of summons on corporate bodies and societies.—
Service of a 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.
Explanation.—In this section “corporation” means an incorporated company or other body

corporate and includes a society registered under the Societies Registration Act, 1860 (21 of 1860).
COMMENTS
Section 63 provides the service of summons to the corporate bodies and societies. Service of a summons
on corporation or a society can be affected by serving it on the secretary, local manager or other principal
officer of the concerned corporate bodies.
End of Document
[s 64] Service when persons summoned cannot be found.—
K D Gaur

A.—SUMMONS
[s 64] Service when persons summoned cannot be found.—
Where the person summoned cannot, by the exercise of due diligence, be found, the summons
may be served by leaving one of the duplicates for him with some adult male member of his
family residing with him, and the person with whom the summons is so left shall, if so required
by the serving officer, sign a receipt therefor on the back of the other duplicate.
Explanation.—A servant is not a member of the family within the meaning of this section.
COMMENTS
In case the person summoned cannot be found after taking all efforts it may be served by leaving a
duplicate copy of the summon to any member of the family after taking signature of the person receiving
the summons. Servant is not supposed to be a member of the family.
End of Document
[s 65] Procedure when service cannot be effected as before provided.—
K D Gaur

A.—SUMMONS
[s 65] Procedure when service cannot be effected as before provided.—
If service cannot by the exercise of due diligence be effected as provided in section 62, section 63
or section 64, the serving officer shall affix one of the duplicates of the summons to some
conspicuous part of the house or homestead in which the person summoned ordinarily resides;
and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the
summons has been duly served or order fresh service in such manner as it considers proper.
COMMENTS
In case service cannot be effected after exercising due diligence and efforts made vide sections 62, 63 and
64 the serving officer shall affix one of the duplicates of the summons on some conspicuous part of the
house in which the person summoned ordinarily resides.
End of Document
[s 66] Service on Government servant.—
K D Gaur

A.—SUMMONS
[s 66] Service on Government servant.—
(1) Where the person summoned is in the active service of the Government, the Court issuing
the summons shall ordinarily send it in duplicate to the head of the office in which such
person is employed; 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 that section.
(2) Such signature shall be evidence of due service.
COMMENTS
In case of summon issued by the Court in the name of a Government servant it must be served to person
by the head of the office and signature of the person must be obtained on the duplicate copy of the
summons and returned to the Court by the Head of the office to the Court concerned under his signature.
Signature will be testimony of the service.
End of Document
[s 67] Service of summons outside local limits.—
K D Gaur

A.—SUMMONS
[s 67] Service of summons outside local limits.—
When a Court desires that a summons issued by it shall be served at any place outside its local
jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose
local jurisdiction the person summoned resides, or is, to be there served.
COMMENTS
When a summons is issued outside the local jurisdiction by the Court in the name of a person, the
summons shall be sent in duplicate to a Magistrate within whose local jurisdiction the person ordinarily
resides. Such Magistrate shall cause it to be served as per provisions of the Code.
End of Document
[s 68] Proof of service in such cases and when serving officer not present.—
K D Gaur

A.—SUMMONS
[s 68] Proof of service in such cases and when serving officer not present.—
(1) When a summons issued by a Court is served outside its local jurisdiction, and in any
case where the officer who has served a summons is not present at the hearing of the
case, an affidavit, purporting to be made before a Magistrate, that such summons has
been served, and a duplicate of the summons purporting to be endorsed (in the manner
provided by section 62 or section 64) by the person to whom it was delivered or tendered
or with whom it was left, shall be admissible in evidence, and the statements made
therein shall be deemed to be correct unless and until the contrary is proved.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons
and returned to the Court.
COMMENTS
[s 68.1] Proof of Service in Cases where Serving Officer not Present
In case where summons issued by a Court is served on a person outside the local jurisdiction of the Court
and when the serving officer is not present in the Court, the duplicate of the summons with the signature
of the person receiving the summons is testimony of the proper service of summons and will be
admissible in the Court unless and until contrary is proved. The affidavit shall be attached with the
duplicate of summons and returned to the Court.
End of Document
[s 69] Service of summons on witness by post.—
K D Gaur

A.—SUMMONS
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court
issuing a summons to a witness may, in addition to and simultaneously with the issue of
such summons, direct a copy of the summons to be served by registered post addressed
to the witness at the place where he ordinarily resides or carries on business or personally
works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement
purporting to be made by a postal employee that the witness refused to take delivery of
the summons has been received, the Court issuing the summons may declare that the
summons has been duly served.
Andaman and Nicobar Islands and Lakshadweep:
In section 69,—
(a) in sub-section (1), after the words “to be served by registered post”, insert the words “or of the
substance thereof to be served by wireless message”.
(b) in sub-section (2), for the words “that the witness refused to take delivery of the summons”,
substitute the words “or a wireless message that the witness refused to take delivery of the
summons or the message, as the case may be”.
Page 2 of 2
[Vide Regulation 6 of 1977, section 2 (w.e.f. 17-11-1977).]
COMMENTS
This section provides provision for service of summons to witness by registered post addressed to the
witness on the address where witness ordinarily resides. This section is not applicable for issue of
summons in case of accused, when an acknowledgement purporting to be signed by the witness or
endorsement made by the postal employee that the delivery was refused the Court will presume and
declare that the summons was properly served.
End of Document
[s 70] Form of warrant of arrest and duration.—
K D Gaur
PROCESSES TO COMPEL APPEARANCE > B.—WARRANT OF ARREST

B.—WARRANT OF ARREST
(1) 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.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it,
or until it is executed.
COMMENTS
The section provides that a warrant of arrest is issued by a competent Court directing the officer-in-
charge of the police to arrest particular person or persons as mentioned in the warrant of arrest and
produce the person(s) so arrested in the Court. Every warrant shall remain in force until the person(s)
named are arrested or warrant is withdrawn. A warrant shall be issued in Form No. 2 of Schedule II of the
Code. A Warrant:
(i) must be in writing.

(ii) must bear the name and address of a police officer who is to execute the warrant.
(iii) it must give full name and description of the person to be arrested.
(iv) it must clearly state the particular offence or offences in connection with which the person is to
be arrested.
(v) it must be signed by the Presiding Officer of the Court.
(vi) it must bear the seal of the Court with date.
Page 2 of 2
[s 70.1] Summons and Warrant Distinguished
The object of summons and warrant is same, i.e., to ensure the attendance of the offender in the Court of
law on a date and time fixed by the Court but there is a difference in the nature of the two processes. In
case of summons the person who is required to be present in the Court is directed by name to appear on
the date mentioned in the warrant. In case of warrant the person is arrested and brought before the Court.
End of Document
[s 71] Power to direct security to be taken.—
K D Gaur

[s 71] Power to direct security to be taken.—
(1) Any Court issuing a warrant for the arrest of any person may in its discretion direct by
endorsement on the warrant that, if such person executes a bond with sufficient sureties
for his attendance before the Court at a specified time and thereafter until otherwise
directed by the Court, the officer to whom the warrant is directed shall take such security
and shall release such person from custody.
(2) The endorsement shall state—
(a) the number of sureties;

(b) the amount in which they and the person for whose arrest the warrant is issued, are to
be respectively bound;
(c) the time at which he is to attend before the Court.
(3) Whenever security is taken under this section, the officer to whom the warrant is directed
shall forward the bond to the Court.
COMMENTS
Section 71 authorises a Court using a warrant for the arrest of any person on its discretion to direct by
endorsement that in case such person executes a bond with sufficient sureties for attendance before the
Court on the date and time fixed by the Court, the person may be released.
End of Document
[s 72] Warrants to whom directed.—
K D Gaur

[s 72] Warrants to whom directed.—
(1) A warrant of arrest shall ordinarily be directed to one or more police officers; but the
Court issuing such a warrant may, if its immediate execution is necessary and no police
officer is immediately available, direct it to any other person or persons, and such person
or persons shall execute the same.
(2) When a warrant is directed to more officers or persons than one, it may be executed by all,
or by any one or more of them.
COMMENTS
The section provides that a warrant shall ordinarily be directed to one or more police officers to execute
the warrant at the earliest as per law. If the warrant is directed to more than one police officer it may be
executed by all or any of such police officer.
End of Document
[s 73] Warrant may be directed to any person.—
K D Gaur

[s 73] Warrant may be directed to any person.—
(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any
person within his local jurisdiction for the arrest of any escaped convict, proclaimed
offender or of any person who is accused of a non-bailable offence and is evading arrest.
(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if
the person for whose arrest it was issued, is in, or enters on, any land or other property
under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over
with the warrant to the nearest police officer, who shall cause him to be taken before a
Magistrate having jurisdiction in the case, unless security is taken under section 71.
COMMENTS
Warrant may be directed by the Chief Judicial Magistrate or Magistrate of the First Class within his local
jurisdiction for the arrest of escaped convict, proclaimed offender or who is accused of a non-bailable
offence. On arrest of the person he shall be produced to the nearest police station along with warrant and
produced before the nearest Magistrate within 24 hours for further necessary action as per law.
End of Document
[s 74] Warrant directed to police officer.—
K D Gaur

[s 74] Warrant directed to police officer.—
A warrant directed to any police officer may also be executed by any other police officer whose
name is endorsed upon the warrant by the officer to whom it is directed or endorsed.
COMMENTS
A warrant directed to any police officer may also be executed by any other police officer whose name is
endorsed upon the warrant by the officer to whom it is directed.
End of Document
[s 75] Notification of substance of warrant.—
K D Gaur

[s 75] Notification of substance of warrant.—
The police officer or other person executing a warrant of arrest shall notify the substance thereof
to the person to be arrested, and, if so required, shall show him the warrant.
COMMENTS
The police officer executing a warrant of arrest shall notify the substance thereof to the person to be
arrested and show him the warrant, if demanded.
End of Document
[s 76] Person arrested to be brought before Court without delay.—
K D Gaur

[s 76] 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:
Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s Court.
COMMENTS
Section 76 fixes legal responsibility on the part of police officer executing warrant to produce the arrested
person before the Magistrate within whose jurisdiction person is arrested to produce within 24 hours of
arresting excluding the period of journey.
End of Document
[s 77] Where warrant may be executed.—
K D Gaur

[s 77] Where warrant may be executed.—
A warrant of arrest may be executed at any place in India.
COMMENTS
A warrant of arrest may be executed anywhere at any place in India.
End of Document
[s 78] Warrant forwarded for execution outside jurisdiction.—
K D Gaur

(1) When a warrant is to be executed outside the local jurisdiction of the Court issuing it,
such Court may, instead of directing the warrant to a police officer within its jurisdiction,
forward it by post or otherwise to any Executive Magistrate or District Superintendent of
Police or Commissioner of Police within the local limits of whose jurisdiction it is to be
executed; and the Executive Magistrate or District Superintendent or Commissioner shall
endorse his name thereon, and if practicable, cause it to be executed in the manner
hereinbefore provided.
(2) The Court issuing a warrant under sub-section (1) shall forward, along with the warrant,
the substance of the information against the person to be arrested together with such
documents, if any, as may be sufficient to enable the Court acting under section 81 to
decide whether bail should or should not be granted to the person.
COMMENTS
Sections 78 to 81 of the Code provide procedures to be taken into account when a warrant of arrest is to
be executed outside the jurisdiction of the Court issuing it. To ensure that proper procedure is adopted,
the warrant is forwarded to the proper authorities, such as Executive Magistrate, or District
Superintendent of Police or Commissioner of Police instead of directing to a police officer of the
jurisdiction.
The warrant must be forwarded along with necessary documents stating sufficient grounds of arrest,
description, address and all details of the person otherwise warrant will not be valid.1.
Page 2 of 2
1. S. Velappan v State of Kerala, AIR 1965 Ker 72 : 1964 Ker LT 230 : 1965 Ker LJ 449 .
End of Document
[s 79] Warrant directed to police officer for execution outside jurisdiction.—
K D Gaur

[s 79] Warrant directed to police officer for execution outside jurisdiction.—
(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction
of the Court issuing the same, he shall ordinarily take it for endorsement either to an
Executive Magistrate or to a police officer not below the rank of an officer in charge of a
police station, within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement
shall be sufficient authority to the police officer to whom the warrant is directed to
execute the same, and the local police shall, if so required, assist such officer in executing
such warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining the
endorsement of the Magistrate or police officer within whose local jurisdiction the
warrant is to be executed will prevent such execution, the police officer to whom it is
directed may execute the same without such endorsement in any place beyond the local
jurisdiction of the Court which issued it.
COMMENTS
The section provides that a police officer to whom a warrant is issued outside the local jurisdiction of the
Court, he shall ordinarily take the endorsement either of an Executive Magistrate or of a police officer not
below the rank of officer-in-charge of a police station of that jurisdiction where the offence is to be
executed.
In case of possible delay in obtaining approval/endorsement of the above noted officers the warrant may
be executed without such an endorsement.
End of Document
[s 80] Procedure on arrest of person against whom warrant issued.—
K D Gaur

[s 80] Procedure on arrest of person against whom warrant issued.—
When a warrant of arrest is executed outside the district in which it was issued, the person
arrested shall, unless the Court which issued the warrant is within thirty kilometres of the place of
arrest or is nearer than the Executive Magistrate or District Superintendent of Police or
Commissioner of Police within the local limits of whose jurisdiction the arrest was made, or
unless security is taken under section 71, be taken before such Magistrate or District
Superintendent or Commissioner.
COMMENTS
After arrest of the person against whom a warrant has been issued outside the jurisdiction of the Court
issuing warrant, he will be produced before the nearest Executive Magistrate or Superintendent of the
Police or the Commissioner of Police within whose local limits the person is arrested.
End of Document
[s 81] Procedure by Magistrate before whom such person arrested is brought.—
K D Gaur

(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police

shall, if the person arrested appears to be the person intended by the Court which issued
the warrant, direct his removal in custody to such Court:
Provided that, if the offence is bailable, and such person is ready and willing to give
bail to the satisfaction of such Magistrate, District Superintendent or Commissioner,
or a direction has been endorsed under section 71 on the warrant and such person is
ready and willing to give the security required by such direction, the Magistrate,
District Superintendent or Commissioner shall take such bail or security, as the case
may be, and forward the bond, to the Court which issued the warrant:
Provided further that if the offence is a non-bailable one, it shall be lawful for the
Chief Judicial Magistrate (subject to the provisions of section 437), or the Sessions
Judge, of the district in which the arrest is made on consideration of the information
and the documents referred to in sub-section (2) of section 78, to release such person
on bail.
(2) Nothing in this section shall be deemed to prevent a police officer from taking security
under section 71.
Uttar Pradesh:
In section 81, in sub-section (1), after second proviso, insert the following proviso, namely:—
Page 2 of 2
Provided also that where such person is not released on bail or where he fails to give such security as aforesaid, the Chief Judicial
Magistrate in the case of a non-bailable offence or any Judicial Magistrate in the case of a bailable offence may pass such orders as he
thinks fit for his custody till such time as may be necessary for his removal to the Court which issued that warrant.
COMMENTS
The section contemplates the procedure to be followed by an Executive Magistrate or District

Superintendent of Police or Commissioner of Police in case of an arrest made of a person of other
jurisdiction. If the person is willing to give bail with sureties the Magistrate shall forward the bond, to the
Court issuing the warrant for necessary action with his endorsement.
End of Document
[s 82] Proclamation for person absconding.—
K D Gaur
PROCESSES TO COMPEL APPEARANCE > C.—PROCLAMATION AND ATTACHMENT

C.—PROCLAMATION AND ATTACHMENT
(1) If any Court has reason to believe (whether after taking evidence or not) 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, such Court may publish a written proclamation
requiring him to appear at a specified place and at a specified time not less than thirty
days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:—
(i) (a) it shall be publicly read in some conspicuous place of the town or village in
which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which
such person ordinarily resides or to some conspicuous place of such town or
village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in
a daily newspaper circulating in the place in which such person ordinarily resides.
(3) A statement in writing by the Court issuing the proclamation to the effect that the
proclamation was duly published on a specified day, in the manner specified in clause (i)
of sub-section (2), shall be conclusive evidence that the requirements of this section have
been complied with, and that the proclamation was published on such day.
2.[(4) Where a proclamation published under sub-section (1) is in respect of a person
accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395,
396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and
such person fails to appear at the specified place and time required by the proclamation,
Page 2 of 2
the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed
offender and make a declaration to that effect.]
3.[(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the
Court under sub-section (4) as they apply to the proclamation published under sub-
section (1).]
COMMENTS
[s 82.1] Sections 82, 83 and 85, CrPC – Nature and scope of proclamation for attachment and sale
of absconding person
Held, provisions contained in section 82 were enacted to secure the presence of the accused – Once the
said purpose is achieved, the attachment of property shall be withdrawn, In Vimalaben Ajitbhai Patel v
Vatslaben Ashokbhai Patel,4. the Supreme Court held provisions of CrPC do not warrant sale of the
property despite the fact that the absconding accused has surrendered and obtained bail once he
surrenders before the court and the standing warrants are cancelled, he is no longer an absconder.
Purpose of attaching the property comes to an end. It is to be released subject to the provisions of CrPC.
Securing the attendance of an absconding accused is a matter between the State and the accused.
Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold it vests with
the State subject to any order passed under section 85. It cannot be a subject-matter of execution of a
decree, of a third party, who has no right, title or interest thereon. Therefore, order pertaining auction and
sale of properties of Appellant I was wrong vide Civil Procedure code, 1908. [Order 21 rules 64 and 66 (Paras
32 and 33)]. Property which was attached should be restored.
4. (2008) 4 SCC 649 : AIR 2008 SC 2675 : 2008 AIR SCW 4475.
End of Document
[s 83] Attachment of property of person absconding.—
K D Gaur

(1) The Court issuing a proclamation under section 82 may, for reasons to be recorded in
writing, at any time after the issue of the proclamation, order the attachment of any
property, movable or immovable, or both, belonging to the proclaimed person:
Provided that where at the time of the issue of the proclamation the Court is satisfied,
by affidavit or otherwise, that the person in relation to whom the proclamation is to be
issued,—
(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local jurisdiction of
the Court,
it may order the attachment simultaneously with the issue of the proclamation.
(2) Such order shall authorise the attachment of any property belonging to such person
within the district in which it is made; and it shall authorise the attachment of any
property belonging to such person without such district when endorsed by the District
Magistrate within whose district such property is situate.
(3) If the property ordered to be attached is a debt or other movable property, the attachment
under this section shall be made—
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the proclaimed
person or to any one on his behalf; or
Page 2 of 3
(d) by all or any two of such methods, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under this section
shall, in the case of land paying revenue to the State Government, be made through the
Collector of the district in which the land is situate, and in all other cases—
(a) by taking possession; or

(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the payment of rent on delivery of property to the
proclaimed person or to any one on his behalf; or
(d) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a perishable nature,
the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the
proceeds of the sale shall abide the order of the Court.
(6) The powers, duties and liabilities of a receiver appointed under this section shall be the
same as those of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908).
COMMENTS
Section provides a comprehensive provision in case of attachment and sale of the property both movable
and immovable of proclaimed offender, if necessary. The Court will take up necessary steps after
appointing a receiver of the property in accordance with the provisions of law. The proceedings of
attachment of property can be initiated by the Court only after property ascertaining that the owner is not
traceable even after necessary efforts, or if the (i) the owner is about to dispose of the whole or any part
of the property, or (ii) is about to remove the whole or any part of the property outside the local
jurisdiction of the Court.
It may be noted that the object of attachment of property is to compel the presence of the absconder in
the Court and cooperate in the process of Court and not punish him.5. If the absconder appears and gives
satisfactory account to the Court property may be released, but it (property) will be at the disposal of State
Government. It cannot be sold until six months have expired from the date of attachment.
However, in case of live-stock and perishable goods, such as fruits, vegetable etc., sub-section (5) of the
section 83 provides for immediate sale of the goods. Attachment of property cannot take place unless
statutory period of 30 days from the date of proclamation has elapsed.6.
5. Daya Nand Kalu v State of Haryana, AIR 1976 P&H 190 : 78 Pun LR 334 : (1976) 3 Cri LT 225.
Page 3 of 3
6. Devendra Singh Negi vState of Uttar Pradesh, 1994 Cr LJ 1783 : 1995 APLJ (Cri) 7 : 1993 (2) Crimes 728 (All).
End of Document
[s 84] Claims and objections to attachment.—
K D Gaur

(1) If any claim is preferred to, or objection made to the attachment of, any property attached
under section 83, within six months from the date of such attachment, by any person
other than the proclaimed person, on the ground that the claimant or objector has an
interest in such property, and that such interest is not liable to attachment under section
83, the claim or objection shall be inquired into, and may be allowed or disallowed in
whole or in part:
Provided that any claim preferred or objection made within the period allowed by this
sub-section may, in the event of the death of the claimant or objector, be continued by
his legal representative.
(2) Claims or objections under sub-section (1) may be preferred or made in the Court by
which the order of attachment is issued, or, if the claim or objection is in respect of
property attached under an order endorsed under sub-section (2) of section 83, in the
Court of the Chief Judicial Magistrate of the district in which the attachment is made.
(3) Every such claim or objection shall be inquired into by the Court in which it is preferred
or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he

may make it over for disposal to any Magistrate subordinate to him.
(4) Any person whose claim or objection has been disallowed in whole or in part by an order
under sub-section (1) may, within a period of one year from the date of such order,
institute a suit to establish the right which he claims in respect of the property in dispute;
but subject to the result of such suit, if any, the order shall be conclusive.
COMMENTS
[s 84.1] Claim and objection to attachment and sale of property of absconding person
Page 2 of 2
in Vimalaben Ajitbhai Patel v Vatslaben Ashokbhai Patel,7. the apex court held, on facts, right to object in
terms of section 84 could not have been invoked by wife, as she had no independent claim over the
property. The court said provision also could not have been invoked for the purpose of execution of a
decree (Para 34).
The Court under section 84 gives an opportunity to any person who has got an interest over the property
attached, other than proclaimed offender, to move to the Court and state that such interest in property in
question is not liable to be attached. The claim shall be inquired into and allowed or rejected as per law.
If the claim and objection is rejected by the Court he may within a year from the date of order institute a
suit to establish the right in respect of property in disputes. Subject to the result of such suit, order shall
prevail.
7. (2008) 4 SCC 649 : AIR 2008 SC 2675 : 2008 AIR SCW 4475 : LNIND 2008 SC 694 , S.B. Sinha and V.S. Sirpurka, JJ delivered the
judgment of the Court.
End of Document
[s 85] Release, sale and restoration of attached property.—
K D Gaur

(1) If the proclaimed person appears within the time specified in the proclamation, the Court
shall make an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation,
the property under the attachment shall be at the disposal of the State Government; but it
shall not be sold until the expiration of six months from the date of the attachment and
until any claim preferred or objection made under section 84 has been disposed of under
that section; unless it is subject to speedy and natural decay, or the Court considers that
the sale would be for the benefit of the owner, in either of which cases the Court may
cause it to be sold whenever it thinks fit.
(3) If, within two years from the date of the attachment, any person whose property is or has
been at the disposal of the State Government, under sub-section (2), appears voluntarily
or is apprehended and brought before the Court by whose order the property was
attached, or the Court to which such Court is subordinate, and proves to the satisfaction
of such Court that he did not abscond or conceal himself for the purpose of avoiding
execution of the warrant, and that he had not such notice of the proclamation as to enable
him to attend within the time specified therein, such property, or, if the same has been
sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of
the sale, and the residue of the property, shall, after satisfying therefrom all costs incurred
in consequence of the attachment, be delivered to him.
COMMENTS
Section 83 provides that if the proclaimed person appears within the time specified in the order of
proclamation and satisfies to the Court of his absence, property may be released and restored to the
owner.
However, if the proclaimed person does not appear within specified time it will be at the disposal of State
Government and not sold until six months has elapsed from the date of attachment of property. Of
Page 2 of 2
course, in case the property is subject to speedy and natural decay, and the Court considers that it will be
of benefit to the owner of property, it will be sold.
According to sub-section (3) applying the principle of natural justice the Court may get the sale of the
proceeds of the property after deducting necessary expenses incurred in sale, restore the rest of the
amount to the absconder, if he appears and assures the Court that he was not aware of the proclamation
and that he was not absconding from the Court.
End of Document
[s 86] Appeal from order rejecting application for restoration of attached property.—
K D Gaur

[s 86] Appeal from order rejecting application for restoration of attached property.—
Any person referred to in sub-section (3) of section 85, who is aggrieved by any refusal to deliver
property or the proceeds of the sale thereof may appeal to the Court to which appeals ordinarily
lie from the sentences of the first-mentioned Court.
COMMENTS
Section 86 gives right of appeal to aggrieved person to a higher Court against the order of restoration of
attached property as required under sub-section (3) of the section 85 of CrPC to the person aggrieved.
End of Document
[s 87] Issue of warrant in lieu of, or in addition to, summons.—
K D Gaur
PROCESSES TO COMPEL APPEARANCE > D.—OTHER RULES REGARDING PROCESSES

D.—OTHER RULES REGARDING PROCESSES
[s 87] Issue of warrant in lieu of, or in addition to, summons.—
A Court may, in any case in which it is empowered by this Code to issue a summons for the
appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—
(a) if, either before the issue of such summons, or after the issue of the same but before the
time fixed for his appearance, the Court sees reason to believe that he has absconded or
will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in
time to admit of his appearing in accordance therewith and no reasonable excuse is
offered for such failure.
COMMENTS
Section 87 empowers the Court to issue summons as well as warrant for the appearance of any person in
the Court after recording its reasons. In case the person fails to comply the summons and appear before
the Court warrant will be executed and the person is brought before the Court. For instance, in Prodyot
Kumar Baidya,8. the High Court of Calcutta held that the Magistrate is duty bound to issue a warrant for
the arrest of the absconding witness under section 87 of the Code to secure his presence till attendance in
the Court is ensured when he failed to appear after getting summons in relation to maintenance
proceeding under section 125 CrPC.
8. Prodyut Kumar Baidya v Chaya Rani Baidya, (1995) Cr LJ 3155 : 1995 (3) Crimes 461 : 1995 (2) DMC 69 (Cal).
End of Document
[s 88] Power to take bond for appearance.—
K D Gaur

[s 88] Power to take bond for appearance.—
When any person for whose appearance or arrest the officer presiding in any Court is empowered
to issue a summons or warrant, is present in such Court, such officer may require such person to
execute a bond, with or without sureties, for his appearance in such Court, or any other Court to
which the case may be transferred for trial.
COMMENTS
The section is invoked when a person for whose appearance or arrest the presiding officer is empowered
to issue summon or warrants is present in the Court, such Court may require him to execute a bond, with
or without sureties, for his appearance in such Court, or any other Court to which the case may be
transferred for trial.
End of Document
[s 89] Arrest on breach of bond for appearance.—
K D Gaur

[s 89] Arrest on breach of bond for appearance.—
When any person who is bound by any bond taken under this Code to appear before a Court,
does not appear, the officer presiding in such Court may issue a warrant directing that such
person be arrested and produced before him.
COMMENTS
The section empowers the Court to issue a warrant of arrest to a person who fails himself to appear
before the Court in accordance with the bond executed by him.
End of Document
[s 90] Provisions of this Chapter generally applicable to summonses and warrants of
arrest.—
K D Gaur

[s 90] Provisions of this Chapter generally applicable to summonses and warrants of

arrest.—
The provisions contained in this Chapter relating to a summons and warrants, and their issue,
service and execution, shall, so far as may be, apply to every summons and every warrant of arrest
issued under this Code.
COMMENTS
The provisions relating to issue of summons and warrants are discussed in Chapter VI of the Code.
Sections 61 to 69 provide for issue of summons and sections 70 to 81 for issue of warrant of arrest.
End of Document

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1. [s 1] Short title, extent and commencement.—

THE CODE OF CRIMINAL PROCEDURE, 1973

[s 1] Short title, extent and commencement.—

(A) Unlawful Assemblies (sections 129 to 132).

(iii) Maintenance Proceedings (Chapter IX, sections 125 to 128).

[s 1.2] Nature and Scope of the Code of Criminal Procedure

(a) between the Government of India and one or more States; or

THE CODE OF CRIMINAL PROCEDURE, 1973

In this Code, unless the context otherwise requires,—

(e) “High Court” means,—

(f) “India” means the territories to which this Code extends;

[s 2.2.1] Flaw in Investigation/Prosecution – No Incriminating Materials Found – Conviction

[s 2.4] Section 2(g) “Trial”, held is distinct from “Inquiry”

5. Ins. by Act 45 of 1978, sec. 2 (w.e.f. 18-12-1978).

6. Ins. by Act 5 of 2009, sec. 2 (w.e.f. 31-12-2009).

THE CODE OF CRIMINAL PROCEDURE, 1973

(1) In this Code,—

(i) in relation to an area outside a metropolitan area, as a reference to a Judicial

(i) in relation to a metropolitan area, be construed as a reference to a Metropolitan

(a) to a Magistrate of the first class, shall be construed as a reference to a Judicial

[s 3.1] State Amendments

Arunachal Pradesh, Mizoram and Meghalaya:

In section 3, after sub-section (4), insert the following sub-section, namely:—

(5) Notwithstanding anything contained in the foregoing provisions of this section,—

Court of Session or Sessions Judge or Chief District Magistrate.

[Vide Notification No. Jud. 25/74, dated 2 April 1974.]

(5) Notwithstanding anything contained in the foregoing provisions of this section,—

[Vide Nagaland Gazette, Extra., No. 15, dated 19 June 1975.]

Andaman and Nicobar Islands (U.T.)

(1) After section 3, the following section shall be inserted, namely:—

[Regulation 1 of 1974, section 3 (w.e.f. 30-3-1974).]

THE CODE OF CRIMINAL PROCEDURE, 1973

THE CODE OF CRIMINAL PROCEDURE, 1973

THE CODE OF CRIMINAL PROCEDURE, 1973

[s 6] Classes of Criminal Courts.—

(i) Courts of Session;

(1) Court of Session;

THE CODE OF CRIMINAL PROCEDURE, 1973

THE CODE OF CRIMINAL PROCEDURE, 1973

Explanation.—In this section, the expression “population” means the population as

[s 8.1] State Amendment

THE CODE OF CRIMINAL PROCEDURE, 1973

[s 9.1] State Amendments

In section 9, sub-section (3), add the following proviso, namely:—

[Vide Orissa Act 6 of 2004, section 2.]

In section 9, after sub-section (5), insert the following sub-section, namely:—

[Vide Uttar Pradesh Act 1 of 1984, section 2 (w.e.f. 1-5-1984).]

In section 9, to sub-section (6), insert the following proviso, namely:—

[Vide Uttar Pradesh Act 16 of 1976, section 2 (w.r.e.f. 28-11-1975).]

In section 9, to sub-section (3), add the following provisos, namely:—

[Vide West Bengal Act 24 of 1988, section 3.]

[s 9.2] Court of Session

THE CODE OF CRIMINAL PROCEDURE, 1973

[s 10] Subordination of Assistant Sessions Judges.—

THE CODE OF CRIMINAL PROCEDURE, 1973

[s 11] Courts of Judicial Magistrates.—