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Law of Crime II-CriminalProcedure CodeI
Law of Crime II-CriminalProcedure CodeI
Law of Crime II-CriminalProcedure CodeI
Q1.
i) No, in the present case when the Duty officer took custody
of the accused it can be termed as custody as the
intention of committing the arrest will be known by the
later consequnes of the act and later we see that the
accused was relased without bail and it is nceecesray that
he should be relased on bail to prove the intention of
arrest. after recording the information in general diary he
intended to make the arrest as the information also
pertained to a cognizable case and moreover the duty
officer could have take the accused into custody for
interrogating him , he did not take him into custody for
actually arresting him. Following are the essentials to
term it an arrest:
- There was an intent to arrest under authority of law
- It was accompanied by a seizure and the person was
detained in a matter known to law
- It was understood by the person who was being
arrested.
- The accused was being taken into custody of other
iv) No, a private person cannot take the accused into custody
if the offence has not taken place in his presence even
though there may be probability of the accused running
away. Sec 43 clearly laws down that a private person can
arrest when a non bailable and cognizable offence takes
place in his presence and then he shouldn’t cause any
delay in taking the accused to a nearby police officer
because any person without witnessing any committal
offence annot arrest anyone as that would be unlawful.
The Arrest to the extent of taking the accused into
custody is valid which means that kaal Devta could not
mearly arrest the accused on the wordings of her sister
and the arrest would therefore be illegal and
consequential arrest by Duty officer will be detention and
not arrest but looking at provisions of Sec 41 it can be
termed as arrest.
Q2.
i) No, anticipatory bail under section 438 of the code cannot
be granted to an absconder as the accused in this case
was not was after him and he didn’t have any fear or
apprehension that his arrest might take place. Also Sec 82
of the code it is mentioned that anticipatory bail cannot be
granted to a proclaimed offender. And warrant was
executed in favour of the accused and still he was evading
the arrest so it would not make sense to give him any
protection. Court will rather publish a written
proclamation for the accused to appear at a particular
date in not less than 30 days. And in this case the
proclaimed offender is in respect to cases listed in clause
3 of the section signifying t be a cognizable offence.
Also the accused was in violation of section 438 (2) as he
should have made himself available for interrogation but
he did not.
Section 190 (1) states about the powers and conditions under
which any magistrate of first and second class specifically
empowered in this behalf can take cognizance. However if a
magistrate in good faith erroneously take cognizance of offence,
such proceeding would not become void per se subject to the
condition that it was done upon information received or upon his
own knowledge.[ R.R.Chari v. State of U.P; 1951 AIR 207]
Purshottam Jethanand v. State of Kutch [AIR 1954 SC 700]: If a
magistrate takes cognizance of an offense and proceeds with a
trial though he is not empowered in that behalf and convicts the
accused, the accused cannot avail himself of the defect and cannot
demand that his conviction be set aside merely on the ground of
such irregularity, unless there is something on the record to show
that the magistrate had assumed the power, not erroneously and
in good faith, but purposely having knowledge that he did not
have any such power. On the other hand, if a magistrate who is
not empowered to take cognizance of an offense takes cognizance
upon information received or upon his own knowledge under S.
190(1)(c) his proceeding shall be void and of no effect. In such a
case it is immaterial whether he was acting erroneously in good
faith or otherwise.