SECTION : 140 POWER OF THE MAGISTRATE TO

FURNISH WRITTEN INSTRUCTIONS, ETC

 The Magistrate shall give written instructions to the person

directed to carry out local investigation. The order shall direct
as to who will bear the expenses of the investigation, whether
the whole or any part of such necessary expenses.

 The report submitted by such person after conducting the

local investigation would be read as evidence in the case.

 There may arise a situation in which the Magistrate may

summon and examine an expert under section 139 for the
purpose of investigation. Therefore, he can also order or direct
as to who will bear the expenses of calling an expert for his
opinion.

SECTION : 141 PROCEDURE ON ORDER BEING MADE

ABSOLUTE AND CONSEQUENCES OF DISOBEDIENCE.

 The Magistrate has to inform the person against whom an

absolute order has been passed under section 136 and the
acts that he is required to perform by such order within the
prescribed time. If, the person against whom such absolute
order has been passed disobeys it, he will be liable under
section 188 of Indian Penal Code, 1860.

 The sub-section 2 of section 141 empowers the Magistrate to

attach the property of the person who fails to perform a
particular act within the prescribed time. The cost of
 performance can be recovered by sale of any building, goods or
by sale and distress of any other movable property. The
Magistrate can attach the property within his or out of his
jurisdiction for recovery of cost.

 No suit shall be instituted in respect of anything done in good

faith.

It has been held in Dulichand v. state (1929) 51 ALL 1025 that a

conditional order made under section 133 cannot be questioned by
a civil suit but there is no such bar in respect of an absolute order
under this section.

Section 142: Power to issue an injunction

Where an order is made by a magistrate under section 133 where
immediate measure is required to prevent any imminent danger or
serious injury, an injunction can be issued against whom the order
is made under section 142 of Cr.P.C. The magistrate may himself
use or cause to be used such means to prevent such danger or
injury if there is default on the part of such person. The order
issued under this section such be made with good faith.

SECTION ; 143 MAGISTRATE MAY PROHIBIT

REPETITION OR CONTINUANCE OF PUBLIC NUISANCE.
The District Magistrate or the Sub-Divisional Magistrate, or any
Executive Magistrate empowered by the state govt. or the District
Magistrate in this behalf may order any person not to repeat or
continue a public nuisance as defined in the Indian Penal Code or
any other special or local law.
Section 144: Order to be issued in urgent cases of nuisance or
apprehended danger.

Section 144 comes into play when there are urgent cases of
nuisance or apprehended danger.

Order can be issued under this section by the following.

1. District Magistrate
2. A Sub-divisional Magistrate
3. Any other Executive Magistrate specially empowered by the
State Government in this behalf.

When there is sufficient ground for proceeding under this section,

an immediate and speedy remedy is required for maintenance of
public order, directions can be issued by the magistrate by a
written order directing any person to abstain from certain acts or
issue an order with respect to certain property which is in his
possession.

Order under this section can be passed and directions can be

issued to prevent:

 Obstruction, damage or injury;

 Danger to human life, health or safety;
 Disturbance of the public tranquillity
 Riot
 Affray

Case Law : Ram Manahor. V Sundaram. AIR 1955.

Where there is no apprehension of a breach of peace, a magistrate

should not restrain the liberty of private individual by means of an
order under this section.
Ex-parte order under section 144(2)

If there is a matter of emergency or where delay in the matter in

serving notice can lead to grave injury or damage, the order can be
passed ex-parte

144(3) An order under this section may be directed to a particular

individual, or to persons residing in a particular place or area, or to
the public generally when frequenting or visiting a particular place
or area.

Particular Place: - Place does not necessarily mean a restricted

locality like a market or a park but include even part of town which
is so sufficiently defined with clear boundaries as to be easily
distinguishable in order that the public may know at once what the
prohibited area is. A particular place may be a large or small.

Time Duration

According to section 144(4), an order issued under section shall

remain in force for a period not exceeding more than two months.

But, in exceptional cases where the state government considers it

necessary in order to maintain public order and for preventing
danger to human life, health and safety, or to prevent riot or affray,
the order issued by magistrate can be extended for a further period
of six months.

As an example of section 144, one of the most famous instances

which you all have come across was the gathering at Ramlila
Maidan when section 144 was imposed at Ramlila Ground, New
Delhi and Baba Ramdev was arrested.

Section 144 (5) Any Magistrate may, either on his own motion or
on the application of any person aggrieved, rescind or alter any
order made under this section, by himself or any Magistrate
subordinate to him or by his predecessor-in-office.
Case Law : Mooka Pandoram V. Sinnu Muthiriyan, AIR 1937

The jurisdiction under this sub section is a special one and not an
appellate or revisional jurisdiction. The jurisdiction under this sub
section cannot be delegated. It must be exercised by the Magistrate
to whom the application is made. It cannot be transferred to
another Magistrate.

Section 144 (6) The State Government may, either on its own
motion or on the application of any person aggrieved, rescind or
alter any order made by it under the proviso to sub-section (4).

Section 144 (7) Where an application under sub-section (5), or

sub-section (6) is received, the Magistrate, or the State Government,
as the case may be, shall afford to the applicant and early
opportunity of appearing before him or it, either in person or by
pleader and showing cause against the order, and if the Magistrate
or the State Government, as the case may be, rejects the application
wholly or in part, he or it shall record in writing the reasons for so
doing.

SECTION : 144A POWER TO PROHIBIT CARRYING ARMS IN

PROCESSION OR MASS DRILL OR MASS TRAINING WITH
ARMS-

1. For the preservation of public peace or public safety or for the

maintenance of public order, by public notice or by order, The
District Magistrate can prohibit carrying of arms in any area within
the local limits of his jurisdiction for the purpose of:

i. Any procession; or

ii. organizing or holding any mass drill or mass training at any

public place; or

iii. taking part in any mass drill or mass training at any public
place.
2. A public notice under this section may be issued to a particular
person or the persons belonging to any community, party or
organization.

3. Public notice made under this section by the District Magistrate

shall remain in force for three months from the date on which it is
made.

4. The State Government is empowered to increase the time of the

public notice issued by the District Magistrate under sub-section (1)
for a period not exceeding six months from the date on which such
notice or order was issued by him.

5. The State Government may delegate the power under sub-section

(4) to the District Magistrate subject to the control and directions as
it may deem fit.

Explanation.– The word “arms” shall have the meaning assigned to

it in section 153AA of the Indian Penal Code (45 of 1860).

“Arms” means articles of any description designed or adapted as

weapons for offence or defence and includes fire-arms, sharp edged
weapons, lathis, dandas and sticks.

DISPUTE REGARDIG IMMOVABLE PROPERTY

(SECTION 145 & 146)
Introduction

The provisions of the law on the prevention of offences relating to

immovable property disputes are found in Chapter 12 of the Code of
Criminal Procedure, 1898, from sections 145 to 148. Proceedings
pursuant to section 145 are intended to prevent the breach of the
peace as well as to avoid any conflict as a safety measure. The
important thing to note here is the word ‘land or water’ in these
particular sections applies to houses, markets, fisheries, crops,
other land products, and the leases or incomes of all such
properties.

Breach of Peace

If there is a conflict between two parties/groups over the ownership

of land, water, or borders, and if the conflict is likely to do a breach
of peace, then the Executive Magistrate can take action under
Section 145 CrPC. The police report or the information must
contain the nature of the conflict, the clear description of the
property, the parties to the conflict, and the nature of the danger it
poses to the public peace.

Procedure for prevention of breach of peace

Section 145 of CrPC defines the procedure of disputes concerning

land or water which is likely to cause breach of peace. Whenever an
Executive Magistrate is convinced by a police officer’s report or
other evidence that there is a conflict likely to result in a violation of
peace involving any land or water or its borders within its local
jurisdiction, he can make a written order specifying the reasons for
his satisfaction and also mandating the involved parties to attend
the court in person or by a pleader at a stated date and time in
such dispute.

The parties have to make written explanations of their respective

claims, as regards the fact of actual possession of the subject of
dispute.

Debi Prasad Vs Sheodat Rai, (1908) ILR 30 All 41

Section 145 is intended only to provide a speedy remedy for the

prevention of breach of peace arising out of disputes regarding
immoveable property by maintaining one or other of the parties in
possession,
Krishna Kamini Vs Abdul Jubbar, (1903) 30 Cal. 155.

The proceedings under Section 145 are quasi-judicial and quasi-

administrative in nature and their object is to prevent a breach of
peace and maintain tranquility.

A copy of the order has to be issued in the form given by this code,
for the service of a summons to such individual or persons as
directed by the Magistrate, and at least one copy has to be
published by being attached to some prominent place at or near the
subject of conflict.

The Magistrate, without giving regard to the grounds or allegations

of either of the parties to the right to possess the subject-matter of
the dispute, has to review the claims submitted, hear the parties,
accept all such evidence as may be provided by them and also take
further proof, if he considers it necessary. The magistrate has to
determine whether any of the parties were in possession of the
subject-matter of the dispute, on the date of the order rendered by
him. Parties are not prohibited to address or prove that the conflict
does not exist or has ever existed and in that case, the Magistrate
can cancel his order, and no further proceedings will continue. But
the order of the Magistrate always remains final subject to such
cancellation.

If the Executive Magistrate believes that one of the parties was or

should be regarded as being in possession, he may declare the
possession in that party’s favor. If the party’s possession is
determined and ruled, the party shall be allowed to remain in
possession until the competent court orders otherwise.

If the Executive Magistrate is not satisfied as to which of the

aforementioned parties was in custody, he may issue orders to
move the case to the District Judge for further proceedings as
provided by the statute.
If any party to the proceedings dies, the Magistrate may allow the
legal representative of the deceased to become a part of the
proceedings and thereby start the proceedings, and if any dispute
emerges as to who the legal representative of the deceased is for the
sake of such proceedings, all persons proposing to be
representatives of the deceased shall be included in the
proceedings.

If any standing crop or other product of the property in conflict is

prone to rapid and gradual decline, the Executive Magistrate may
issue an order for the appropriate custody or sale of the property
and, once the inquiry has been completed, it can make the order for
the disposal or sale of the property as it considers fit.

Nothing in this provision shall be considered to be in derogation of

the powers of the Magistrate to function under Section 107.

Power to attach subject of dispute and to appoint a

receiver ( Section 146).
Section 146 specifies that even after making the order if the
Magistrate finds the matter to be an emergency, or if he determines
that neither of the parties was then in such possession, or if he can
not reassure himself as to which of them was then in such
possession of the subject-matter of the conflict, he may attach the
subject-matter of the dispute till the competent court has decided
the party’s rights with regard to the party entitled to the possession.

Proviso. The Magistrate may remove the attachment if he is

convinced that there is no chance of breach of peace with respect to
the subject matter of the dispute.
The Magistrate attaches the subject-matter of the dispute. But, if no
receiver has been chosen by any Civil Court in relation to the
subject-matter of the dispute, he may make the arrangements as he
deems necessary for the care of the property or, if he deems fit,
assign a receiver thereof, who shall have all the powers of a receiver
appointed under the Code of Civil Procedure, 1908 (5 of 1908).

When a receiver is duly chosen by any Civil Court in relation to the

subject-matter of the dispute, the Magistrate shall direct the
receiver appointed by him to hand over the subject-matter of the
dispute to the receiver appointed by the Civil Court, and shall
discharge the receiver of his duties who was duly appointed by him.

In the case of Ranjit Singh v. Moti Lal Katiyar, 25 (1988) ACC 26

, 1988 (12) it was held that the power should be exercised by the
magistrate with due care and diligence and it should be exercised in
limited cases when immediate action is required to maintain peace
and prevent any breach of public order.
Examination of witness under section 164 of Code of
Criminal Procedure.
Section 164 : Recording of confession and statements.
What is a confession?

Confession is the admission of guilt, stating or suggesting an

inference as to guilt by an accused made in custody.

Sub Section (1) states that: any Metropolitan Magistrate or Judicial

Magistrate may, whether or not he has jurisdiction in the case,
record any confession or statement made to him in the course of an
investigation under this chapter or under any other law for the time
being in force,or at any time afterwards before the commencement
of the inquiry or trial. Warning under Subsection 2

Subsection 2 of Section 164 mentions a warning. Under the

statutory provision, the Magistrate is first required to explain to the
accused that he was not bound to make a confession and that it did
so, it might be used against him. This is the sine qua non for
recording confession. The other mandatory requirement is that the
Magistrate must put questions to the accused to satisfy himself that
the confession was a voluntary so as to enable him to give the
requisite certificate under subsection(4). The Magistrate cautioned
the accused that he was not bound to make a confession, but did
not put questions to the accused to satisfy himself that the accused
was making confession voluntary.

In Mahabir Singh v. State of Haryana 26 July 2001 court

observed that, Where the Magistrate fails to explain to accused that
he was not bound to make the confession and that if he did so,
such confession might be used as evidence against him, that
confession so recorded, cannot be taken into consideration.
Bar against police pressure

The Sub Section 3 guarantee that police pressure is not brought on

the person who is unwilling to make a confession. Where the
accused was in judicial custody for more than 2 days prior to the
giving of confession it was held that the period is sufficient to shed
fear and influence of the police, if any and therefore the confession
could be made voluntary by the accused. the interval between
preliminary questioning and recording of the confession need not
necessarily be 24 hours duration. A confession was held not to
rejected merely because the Magistrate had failed to assure the
accused that he would not be sent back to the police custody in the
event of his failure to make the confession.

Manner of recording Confession, signatures etc.

Subsection (4) says that the confession should be recorded in a

manner provided under section 281 and shall be signed by the
person making it. The Magistrate shall then make the
memorandum at the foot of such confession. The Magistrate cannot
merely sign a printed instruction supplied to him. This will be
violative of this section. The confession which was made voluntary
and recorded correctly in a different language can be said to have
amounted to an irregularity. The entire confession must be brought
on record. The confession must be shown to be voluntary before it
can be acted upon.

It is necessary that the confession should be signed by the accused.

If it is not, will be admissible in evidence, the commission would no
vitality the confession and the irregularity is curable under section
463. The attestation of the accused is unnecessary when a
confession is made in court to the officer trying the case at the time
of trial.

The confession without memorandum that it is voluntary is bad in

law and cannot be admitted in evidence.
Manner of recording statement other than confession

Subsection (5) lays down the manner in which a statement is to be

recorded. The statement of the witness can be recorded under this
section even after the submission of charge sheet in the case. See
this also

Recording the Statement of Rape Victim

Sub section 5A reads as a mandatory provision for recording the

statement of the prosecutrix under Section 164(5A) of CrPC by the
Magistrate. As soon as the crime is brought to the knowledge of the
police officer, he is duty bound to take the victim to the nearest
Judicial Magistrate for recording her statement. The victim
approaches the court for recording her statement being distressed
and aggrieved with the attitude of the investigating agency. Thus it
is the duty of the Magistrate to record her statement. For more click
here

Transfer of confession to Magistrate of jurisdiction

This subsection (6) states that the Magistrate recording a

confession or statement under this section shall forward it to the
Magistrate by whom the case is to be inquired into or tried.

Principles
In RABINDRA KUMAR PAL alias DARA SINGH v. REPUBLIC OF
INDIA, 21 jan. 2011.

Supreme Court of India laid down the following principles:

 The provisions of Section 164 Cr.P.C. must be complied with

not only in form but in essence.
 A Magistrate should ask the accused as to why he wants to
make a statement which surely shall go against his interest in
the trial.
 The maker should be granted sufficient time for reflection.
  He should be assured of protection from any sort of
apprehended torture or pressure from the police in case he
declines to make a confessional statement.
 At the time of recording the statement of the accused, no
police or police officer shall be present in the open court.
 Confession of a co-accused is a weak type of evidence.
 Usually, the Court requires some corroboration from the
confessional statement before convicting the accused person
on such a statement.

Evidentiary value

confession is a weak kind of evidence and hence needed to be

corroborated. It may be used to corroborate or contradict a
statement made in the court in the manner provided under section
157 and 145 of Indian Evidence Act. The statement cannot be used
a substantive piece of evidence but it can be used for the purpose of
corroboration and can be used to contradict by cross-examining the
person who made.

SECTION 167 ( REMAND)

WHEN THE INVESTIGATION CANNOT BE COMPLETED IN 24
HOURS

Section 57 of the Criminal Procedure Code says that no person

arrested without a warrant shall be detained in the police officer’s
custody for a longer period than what is reasonable. Such a
reasonable period shall not exceed twenty-four hours.

Section 167 of the Criminal Procedure Code provides for the

procedure when investigation cannot be completed within twenty-
four hours. If the police consider such detention is required to
complete the investigation, then prior permission is to be obtained
from the magistrate. There should be grounds to believe that the
accusation against the accused is well-founded.

For such permission, the police shall approach the nearest

magistrate whether having jurisdiction or not.

Conditions When a Person can be Detained Beyond 24 Hours

1. Person should be arrested and detained in custody.

2. It must appear to the police that the investigation cannot be

completed within the twenty-four hours of his arrest as fixed under
section 57 of the Criminal Procedure Code.

3. The officer-in-charge of the police station making the

investigation has grounds to believe that the accusations against
the arrested person are well-founded.

4. The officer in charge of the police station making the

investigation shall forward him to the nearest magistrate.

Object of Section 167 CrPC

Section 167 of the Criminal Procedure Code aims to protect the

accused and ensures the arrested person is brought before the
magistrate with the least possible delay. This is to decide whether
detention beyond 24 hours is required or not.

The magistrate may either:

(a) release him on bail, or

(b) remand him.

The Judicial Magistrate to whom the accused is forwarded whether

he has got jurisdiction to try the case or not may authorise the
detention of the accused in the police custody for a term not
exceeding 15 days on the whole. The order of detention beyond a
period of 15 days by a magistrate having jurisdiction or not will be
illegal.
In CBI vs Anupam Kulkarni, 1992, the Supreme Court has held
that police remand should not be restored after 15 days of arrest.

Maximum Period of Detention under CrPC

Provision of Section 167(2) of the Criminal Procedure Code states

that if the detention for a period beyond 15 days is considered
necessary by the magistrate, he may authorise judicial custody
only:

(a) For a total period of not exceeding 90 days where the offence
regarding which investigation is being done is punishable with
death, imprisonment for life or imprisonment for a term not less
than 10 years.

(b) For a total period not exceeding 60 days where the offence is any
other offence.

Section 167(2A) of CrPC provides that if the accused is produced

before an executive magistrate, he may authorise the detention of
the accused in such custody for not more than seven days in
aggregate after recording his reason for doing so.

Default Bail

On the expiry of 90 days or 60 days as the case may be, if the

investigation is not completed, the accused person shall be released
on bail if he is prepared to do so and does furnish bail.

It is to be noted that the period of 90 or 60 days as the case may be

is to be computed from the date the magistrate authorises detention
of an accused person.

The person so released under section 167(2) of the Criminal

Procedure Code shall be deemed to be released under provisions of
chapter XXXIII of the Criminal Procedure Code relating to the
provisions of bail and bonds.
When an Investigation is not Completed in a Summons Case

Section 167(5) of the Criminal Procedure Code provides that when

the case being investigated is a summons case and the investigation
is incomplete within six months from the date of arrest. In this
situation, the magistrate may make an order to stop further
investigation. But such investigation will not be stopped if the
officer investigating the offence satisfies the magistrate for a special
reason, or it is in the interest of justice for the investigation to be
continued beyond six months.

Rights of Accused ( Sec 50,51,56,57)

SECTION : 50 PERSONS ARRESTED TO BE INFORMED OF
GROUNDS OF ARREST AND OF RIGHT TO BAIL.

 It is the duty of the police officer to inform the person arrested

about the particulars of offence and grounds of arrest in
details immediately after his arrest without warrant. If the
offence is a bailable one, the arrested person shall be informed
of his right to be released on bail. This is a mandatory
provision which confers a valuable right and non-compliance
of it amounts to disregard of the procedure established by law.
Informing the accused about the grounds of his arrest is a
constitutional requirement and failure to comply with this
requirement renders the arrest illegal.
 If a person is arrested by a police officer in a bailable offence
without warrant, he shall inform the person arrested that he is
entitled to be released on bail and he can arrange surities for
the same.
SECTION 50A: OBLIGATION OF PERSON MAKING ARREST TO
INFORM ABOUT THE ARREST, ETC., TO A NOMINATED PERSON

1. It is the immediate duty of the police officer arresting the

accused person to inform his friends, family, relatives or any
person as submitted by the arrested person for conveying the
information in respect of his arrest.
2. It is the duty of the police officer to inform the person arrested
about his rights under subsection (1) immediately.

3. A book has to be prepared by the police officers to be kept in a

police station in which the information of the person informed
under sub-section (1) is to be written. The information is to be
kept in a book, which should be maintained in consonance
with the manner prescribed by the State Government.

4 It is the duty of the Magistrate to satisfy himself that the

duties levied under sub-section (2) and (3) of section 50 upon the
police officer are complied with due diligence.

SECTION :51 SEARCH OF ARRESTED PERSON

1. According to the provisions of this section, an arrested person
should be searched and all the articles other than necessary
wearing apparel found upon him shall be seized. It is
obligatory that the person must be provided with a receipt of
seized articles, as it would ensure accountability of the articles
seized. The power to seize articles is available only if the
person arrested is not released on bail. This section does not
require the search to be conducted in the presence of
witnesses. But, the rules made under the Police Act require
that the search should be conducted in the presence of
independent and respectable witnesses.
2. In case the arrested person is a woman, the search procedure
is to be done by a female police officer having strict regard to
 decency. However, it is not necessary that the witnesses
should also be female, regard to decency does not mean that a
male cannot even witness search of a female. (Kamla Bai v.
State of Maharashtra, 1962)

SECTION : 56 PERSON ARRESTED TO BE TAKEN BEFORE

MAGISTRATE OR OFFICER IN CHARGE OF POLICE STATION.

This section is complimentary to section 57 of the Code, it casts a

duty on the police officer to send the person arrested by him
without warrant to the Magistrate without any delay, if he fails to
furnish bail bond in case of a bailable offence or otherwise, he shall
be forwarded in a nonbailable offence forthwith.

Case law ; Gulam Mohammad v state of MP, AIR 1959

Such a person should not be detained for more than 24 hours in

police custody in absence of a special order of a Magistrate.

SECTION : 57 PERSON ARRESTED NOT TO BE DETAINED MORE

THAN TWENTY- FOURT HOURS,

Whether the arrest is without warrant or under a warrant, the

person arrested must be brought before the Magistrate or Court
within 24 hours of his arrest. It may also be noted that the right
has been further strengthened by its incorporation in the
Constitution of India as a fundamental right. Article 22(2) of the
Constitution provides:

The right to be brought before a Magistrate within a period of not

more than twenty-four hours of arrest has been created with a view:

(i) to prevent arrest and detention for the purpose of extracting

confessions, or as a means of compelling people to give information.

(ii) to prevent police stations being used as though they were

prisons- a purpose for which they are unsuitable.
(iii) to afford an early recourse to a Judicial Officer independent of
the police on all questions of bail or discharge.
 Unit-III
1. General Provisions of Trials and Inquires,
Sec. 300,319,320,321,323
Section 300; Person once convicted or acquitted not to
be tried for same offence.
The doctrine of Double Jeopardy is one of the most debated
concepts in India. The concept of Double Jeopardy in defined in
Indian Constitution under Part III, Article 20(2) of the constitution.
Section 300 of CrPC, 1973 also defines on the concept of Double
Jeopardy. In its general sense, Double Jeopardy is defined as that
no person shall be convicted for one offence more than once. Any
person who has been acquitted or convicted of any offence once
shall not be convicted again for the same offence for which he/she
is already acquitted or convicted.
The concept of double jeopardy marks its existence from the Latin
maxim Nemo Debet bis Vexari. This doctrine states that a man
should not be present in court of law twice for the same offence.
This maxim however also exist in S. 26 of the General Clause Act
and S. 403(1) of CrPC 1898. S. 26 states that where an or omission
constitutes an offence under two or more enactments, then the
offender shall be liable to be prosecuted and punished under either
or any of those enactments but shall not be liable twice for the
same offence.
Double Jeopardy: Criminal Procedure Code
The position of double Jeopardy laws under Criminal procedure
code is much wider than what is given in constitution. The concept
is defined under S. 300 of CrPC and give a detail analysis by giving
provisions on what will form a part of double jeopardy and what all
are the exceptions made under it. One of the major point of
emphasis is under CrPC, double jeopardy laws deal with both the
issues of autrefois convict and autrefois acquit. Therefore double
jeopardy is applicable to all those who can are either acquit or
convict of the offence.
The doctrine of double jeopardy is found under S. 300 of
CrPC.There are six sub clause under this section which aims to
provide an exhaustive view on the concept. All the sub clause will
be explained in this part of the paper.
Clause (1)
S 300(1) of CrPC provides that if any person is tried under the
court of competent jurisdiction and found acquitted or convicted for
an offense committed, and when such acquittal or conviction
remains in force cannot be tried again for the same offence twice.
Second trial cannot be made on that person for the same set of
facts and same offence and nor he\she shall be tried again for the
same set of facts for different charges made against him under sub
section (1) of 221or for sub section (2) of 221. This means that if a
person is convicted of an offence under sub section (1) of 221 then
he cannot be convicted under sub section (2) of 221 in the second
trial for the same set of facts.
Clause (2)
Clause (2) of this section provides that if a person has committed
several offences but he was not tried for all such offences in the first
trial then he cannot be prosecuted for other charges in the second
trial. This means that when a person is acquitted or convicted for
any offence and then he is charged with another offence separately
then he cannot be charged for another offence under second trial as
it is an abuse in itself. A person cannot be always made under
prosecution for different charges separately. So to provide a check
against this abuse, section 300(2) make it obligatory to obtain
consent of state government before a new prosecution is launched
against any person for any distinct offence for which a separate
charge might have been made against the person at the former trial.
Clause (3)
Clause (3) of the section permits for the second trial of the convict
only in the cases where some new facts came into existence as a
consequence of already existing offence. Firstly, this section is only
applicable to the convicts of the offence and not to the acquits of the
offence. The second element of this clause is that a person can only
be re-tried in the cases where some facts relating to the offence
were not came into the notice of the courts.
Clause (4)
Clause (4) of this section is in continuance with clause (3) and act
as an exception to the rule of double jeopardy. This clauses states
that if any court is incompetent to try the accused of any offence
which is actually the consequence of the offence which the court is
taking trial, the first acquittal or conviction will not bar the
competent court to take cognizance of consequential offence. This
basically means that if the court under which first trial was made
was not competent enough to try the second offence which was the
consequence of the first offence can be tried in other competent
court and the first trial will not act as a bar on second trial.
Clause (5) A person discharged under section 258 shall not be
tried again for the same offence except with the consent of the
Court by which he was discharged or of any other Court to which
the first- mentioned Court is subordinate.
Clause (6) Nothing in this section shall affect the provisions of
section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of
section 188 of this Code.
Explanation.- The dismissal of a complaint, or the discharge of the
accused, is not an acquittal for the purposes of this section.
Case law : Kalawati v. the State H.P AIR 1953 SCR 546–
In this case, the appellant was accused of committing murder and
was prosecuted, later acquitted by the district judge. The State
appealed against the decision. The defendants took the plea of
double jeopardy. The Court held that the appeal against acquittal
cannot be considered to be the second prosecution, but the
continuation of original prosecution, Therefore the rule against
double jeopardy will not play a role in this situation.
 Case Law : Thomas Dana v. the State of Punjab 1959 AIR 375
– In this case, it was held by the Apex Court that to claim the
protection of the rule against double jeopardy enumerated under
Article 20(2), it is necessary to show that there was a previous
prosecution and that the prosecution led to punishment and the
accused is being punished for the same offence again.

Section 319 ; Power to proceed against other

persons appearing to be guilty of offence.
Introduction
In some cases, during the proceedings of the trial of an offence, it
appears that a person other than the accused person has
committed the said offence, then, the Court has the power to call
such other person and to join him in the proceedings for the said
offence. Such other people are also known as additional accused.
For securing the appearance for inquiry and trial of the said offence,
of the additional accused before the Court, the Court has the power
to summon, arrest or detain the additional accused. In such
situations, fresh proceedings are commenced against the additional
accused and the witnesses are heard again and the case should
proceed as if the additional accused had been an accused when the
Court took cognizance of the offence.
The provisions related to the above-mentioned situation are clearly
explained under Section 319 of The Code of Criminal Procedure,
1973.
Section 319(1) of CrPC specifies that, where, at the time of inquiry
or at the time of the trial of an offence, the evidence collected or
recorded discloses that any person other than the accused has
committed the said offence, then, the Court has the power to call
such other person and join him in the proceedings for the said
offence.
Section 319(2) of CrPC states that if an additional accused is not
attending the Court proceedings, then, the Court can summon or
arrest the additional accused for the purpose of inquiry or trial of
the said offence which he appears to have committed.
Section 319(3) of CrPC states that if an additional accused is
attending the Court proceedings, then, the Court can detain the
additional accused any time for the purpose of inquiry or trial of the
said offence which he appears to have committed.
Section 319(4)(a) of CrPC states that when any person is
summoned, arrested, or detained under Section 319 CrPC, then,
fresh proceedings should commence against such person and
witnesses should be heard again.
Section 319(4)(b) of CrPC states that when any person is
summoned, arrested, or detained under Section 319 CrPC, then,
the case should proceed as if such person had been an accused
when the Court took the cognizance of the offence.
n a recent 2019 Supreme Court case of Sugreev Kumar v. State of
Punjab & Ors (2019), a judgment authored by Justice Dinesh
Maheshwari for himself and Justice Abhay Manohar Sapre,
unequivocally reiterated that to add a person as additional accused
under Section 319 of the Code of Criminal Procedure, stronger
evidence is required than mere probability of complicity of that
person. This is the test that has to be applied while considering an
application under section 319. It is settled law that the evidence
implicating the person must be cogent evidence and such power
must be used by the courts sparingly.

Section 320. Compounding of

offences.
Compoundable offences
Compoundable offences are those offences where, the complainant
(one who has filed the case, i.e. the victim), enter into a
compromise, and agrees to have the charges dropped against the
accused. However, such a compromise should be a "Bonafide," and
not for any consideration to which the complainant is not entitled
to.
Compoundable offences are less serious criminal offences and are of
two different types.
1. Court permission is not required: These are the offences,
compounding of which do not require prior permission of the court.
Examples of these offences are:
adultery, causing hurt, defamation, criminal trespass, etc.
2. Court permission is required: These are the offences,
compounding of which require prior permission of the court.
Examples of such offences are:
theft, criminal breach of trust, voluntarily causing grievous hurt,
assault on a woman with the intention to outrage her modesty,
dishonest misappropriation of property amongst others, etc.
Non-Compoundable Offences
Non-Compoundable offences are some offences, which cannot be
compounded. They can only be quashed. The reason for this is,
because the nature of offence is so grave and criminal, that the
Accused cannot be allowed to go scot-free. Here, in these types of
cases generally, it is the "state", i.e. police, who has filed the case,
and hence the question of complainant entering into compromise
does not arise.
All those offences, which are not mentioned in the list under
Section (320) of CrPC, are non-compoundable offences.
Difference Between Compoundable and Non-Compoundable
Offences
The difference between Compoundable and Non-Compoundable
offences has been listed below:
1. Nature of Crime: In compoundable offence, the nature of the
offence not so serious. While, in the non-compoundable offence, the
nature of the offence is serious.
2. Withdrawal of Charges: In compoundable offence, charges made
against the accused can be withdrawn. While in the non-
compoundable offence, the charges against the accused cannot be
withdrawn.
3. Affected parties: In compoundable offence, it impacts only to a
private person. While in the non-compoundable offence it affects
both, private person as well as the society at large.
4. Compoundable: In compoundable offence, settlement can be
done either with permission or without permission of the court.
While in the non-compoundable offence, the offence cannot
compound, it can only be quashed.
5. Filing of the case: In compoundable offence, cases are generally
filed by a private person. While in the non-compoundable offence,
cases are filed by the state.

Section 320 (1). The offences punishable under the sections of

the Indian Penal Code (45 of 1860) specified in the first two
columns of the Table next following may be compounded by the
persons mentioned in the third column of that Table:)

Offence IPC Section Compoundable By

Uttering words, etc., The person whose
with deliberate intent to religious feelings are
wound the religious 298 intended to be wounded.
feelings of any person.
Voluntarily causing 323 The person to whom
hurt. the hurt is caused.
Voluntarily causing The person to whom
hurt on provocation 334 the hurt is caused
Voluntarily causing The person to whom the
grievous hurt on grave 335 hurt is caused.
and sudden provocation
Wrongfully The person restrained or
restraining or 341, 342 confined.
confining any
person.
Wrongfully confining a The person confined.
person for three days or 343
more
Assault or use of 352,355,358 The person assaulted or
criminal force. to whom criminal force is
used
Theft 379 The owner of the property
stolen.
Dishonest The owner of the property
misappropriation of 403 misappropriated.
property.
Cheating. 417 The person cheated
Criminal Trespass The person in possession
447 of the property trespassed
upon.
Using a false trade or 482 The person to whom loss
property mark. or injury is caused by
such use.
Criminal breach of 491 The person with whom
contract of service. the offender has
contracted.
Criminal intimidation. 506 The person intimidated.

Section 320(2) : The offences punishable under the sections of the

Indian Penal Code (45 of 1860) specified in the first two columns of
the table next following may, with the permission of the Court
before which any prosecution for such offence is pending, be
compounded by the persons mentioned in the third column of that
table:
Offence IPC Section Compoundable By
Causing miscarriage. The woman to whom
312 miscarriage,is caused.
Voluntarily causing 325 The person to whom
grievous hurt. hurt is caused
Assault or criminal The person assaulted
force in attempting 357 or to whom the force
wrongfully to confine was used.
a person.
Criminal breach of 406 The owner of property
trust in respect of which
breach of trust has
been committed.
Criminal breach of The owner of the
trust by a clerk or 408 property in respect of
servant. which the breach of
trust has been
committed.
Defamation against
the President or the
Vice-President or the
Governor of a State
or the Administrator
of a Union territory 500 The person defamed.
or a Minister in
respect of his public
functions when
instituted upon a
complaint made by
the,Public prosecutor

3. When an offence is compoundable under this section, the

abetment of such offence or an attempt to commit such offence
(when such attempt is itself an offence) or where the accused is
liable under section 34 or 149 of the Indian Penal Code, may be
compounded in like manner.
4. —
a) When the person who would otherwise be competent to
compound an offence under this section is under the age of
eighteen years or is an idiot or a lunatic, any person
competent to contract on his behalf, may, with the permission
of the Court compound such offence.
b) When the person who would otherwise be competent to
compound an offence under this section is dead, the legal
representative, as defined in the Code of Civil Procedure, 1908
 (5 of 1908) of such person may, with the consent of the Court
compound such offence.
5. When the accused has been committed for trial or when he has
been convicted and an appeal is pending no composition for the
offence shall be allowed without the leave of the Court to which he
is committed, or, as the case may be, before which the appeal is to
be heard.
6. A High Court or Court of Session acting in the exercise of its
powers of revision under section 401 may allow any person to
compound any offence which such person is competent to
compound under this section.
7. No offence shall be compounded if the accused is, by reason of a
previous conviction, liable either to enhanced punishment or to a
punishment of a different kind for such offence.
8. The composition of an offence under this section shall have the
effect of an acquittal of the accused with whom the offence has been
compounded.
9. No offence shall be compounded except as provided by this
section.
Mahesh Chand v. the State of Rajasthan (1988)
In the Mahesh Chand case, the Supreme Court invoked Article 142
of the Constitution to give complete justice to the parties. This
article permitted the Supreme Court to compound non-
compoundable offences. This power was to be exclusively used in
the case of an attempt to suicide under Section 307 of the Indian
Penal Code (IPC) to compound the offence in this case.
Ram Lal v. the State of Jammu & Kashmir (1999)
The Ram Lal case altered the judgement given in the Mahesh
Chand case. The provisions given under Section 320(9), which lists
out compoundable offences, cannot be ignored. The offences
declared by law as non-compoundable cannot be compounded, even
with the permission of the court.
Section 321 : withdrawal from prosecution.
Justice demands that every case must reach its destination and
should not be interrupted en route.
1. However, this section enables the Public Prosecutor or
Assistant Public Prosecutor to withdraw from the Prosecution
of any person either generally or in respect of any one or more
of the offences for which he is tried. Such withdrawal may be
done with the consent of the Court at any time before the
judgment is pronounced.
a) If withdrawal takes place before the charges are framed, the
accused can only be discharged.
b) But the accused would be entitled to acquittal, if the
prosecution is withdrawn after the framing of the charge or
when under this code no charge is required.

The Previous approval of the Central Government is also required

for such withdrawal (unless the prosecutor has been appointed by
the Central Government), if the offence
(i) was against any law relating to a matter to which the executive
power of the union extends, or
(ii) was investigated by the Delhi Special Police, or
(iii) involved the misappropriation, destruction etc. of any Central
Government property or
(iv) was committed by a Central Government employee while on
official duty. (proviso to section 321)
(v) Section 321 is not applicable to security proceedings, as there is
no discharging or acquittal of the accused in such proceedings.

Case law : State of Punjab v. Union of India (1986),

the Supreme Court said that the administration of justice should be
the criterion for determining whether or not suits should be
withdrawn. As a result, the prosecution can be withdrawn for a
variety of reasons, including a lack of evidence, the accused’s
socioeconomic status, and others.
Section 323 Procedure when, after commencement of inquiry
or trial, Magistrate finds case should be committed:
This section confers power on a Magistrate to commit a case to the
Court of Session at any stage of trial before signing the judgment if
it appears to him that the case is one which ought to be tried by the
Court of Session.
For committing a case to court of session the Magistrate shall follow
the procedure contained in chapter XVIII.
Case law ; Thakur Ram v State of Bihar AIR 1966
Commitment under this section after signing or pronouncing the
judgment is not permitted.
Where the Magistrate is of the opinion that he is not competent to
try the case and it should be committed to the Sessions Court, he
should do so promptly and expeditiously without any delay. Thus,
where a Magistrate did not commit the case to the Sessions Court
for nine months though the case had been taken by him on several
dates, it was held that the accused was entitled to be released on
bail.
Thus, where the editor of a widely circulated daily newspaper was
charged of the offence of sedition, the High Court directed the Chief
Presidency Magistrate to commit the case to the Court of Session
for trial.
 2) Provisions Relating Bail and Bond
( S. 436-450). Chapter XXXIII
The word bail has been coined from the French word ‘bailer‘,
which means to deliver or give. The tentative release of an
accused from custody is termed as bail. In other words, bail is
the security for the accused person.

The Indian Constitution under Article 21 guarantees the right to

life and personal liberty to every individual. A person is assumed
to be innocent unless proved guilty. Hence, an accused shall not
be deprived of personal liberty unless prescribed by a fair and
just procedure.

The term ‘bail‘ is nowhere defined in the Criminal Procedure

Code, 1973. However, bail provisions have been defined in CrPC
under sections 436-450. The first schedule of CrPC also defines
which offences are bailable and which are not. Generally, non-
bailable offences are more heinous crimes.

An accused shall be released on bail, if he furnishes the bail

bond to the police officer or the Court, before whom he offers to
give bail. The following are the requisites for granting him bail:

1. when the accused is arrested or detained without warrant by

a police officer, or

2. when the accused appears or is brought before a court.

(Waman N. Ghiye v. State of Rajasthan, 2009 SC)

The right to be released on bail in case of a bailable offence is a
legal and constitutional right of an accused person, refusal of
this right is a curtailment of the right of personal liberty
guaranteed by Article 21 of the Constitution of India and
therefore, there should be no question of discretion in granting
bail.
 Bail in Bailable offences

Section 436 ; In what cases bail to be given.

1. This section empowers both the police officer and the Court to
grant bail to the accused. If in case, the police officer refuses
to grant bail and retains the accused, in contravention to the
provisions of this section, then this detention will be illegal
and such police officer may be held guilty of wrongful
confinement for such detention. There is no provision for going
in appeal against the order of refusal to grant bail under this
section but the person who was refused bail may move to the
High Court or the Court of Session under section 439 of the
Code.

The proviso states that if there is an indigent person who is unable

to furnish surety, he shall be released on bail on his executing a
bond without sureties for his appearance.

Explanation to this section states that the police officer or the

Court may presume that the accused person is an indigent person,
if he is unable to furnish bail within a week.

The second proviso to sub-section (1) saves the provisions of

section 116 (3) and section 446A of the Code. Section 116 (3) states,
that a person against whom security proceedings for keeping peace
or maintaining good behavior have been started may be detained in
custody, if he fails to furnish the bail bond as required by the Court
in such proceedings. Therefore, this section will remain unaffected
by the general rule, i.e. to release on bail contained in this section.
Similarly, the provisions contained in section 446A regarding the
forfeiture and cancellation of the bail bond on breach of any
conditions will remain unaffected.

According to sub-section (2), the court may refuse to grant bail

when the accused person appears or is brought before the court on
any subsequent date in the same case even though the offence is
bailable. Where he absconds or has broken the conditions of his
bail bond when he was released on bail on a previous occasion.
The Hon'ble Bombay High Court held in Stefan Mueller -VsState
of Maharashtra in Writ Petition No.2939 of 2009 dated
23/06/2010in para no.10 that it is well settled position of law that
if the offence is bailable , the accused is entitled to be released on
bail and even where he does not make an application for bail, it is
the responsibility of the concerned police officer, if he has arrested
or detained the accused for a bailable offence, to inform him about
his right to be released on bail. Similarly, it is also settled position
of law that where a person accused of bailable offence appears or is
produced before a Magistrate, it is responsibility of such Magistrate
to inform him of his right to be released on bail.

SECTION 436A. Maximum period for which an

undertrial prisoner can be detained.
The provision of the section aims at safeguarding the under-trial
prisoners against discriminate incarceration which at times exceeds
far more than the imprisonment of the term with which the offence
committed by the under trial is punishable. Therefore, the accused
person shall be released by the Court on his personal bond with or
without sureties, if he has been detained for a period equal to or
more than the maximum punishment prescribed for the said
offence. The provisions of this section do not apply to the cases in
which a person could be awarded death sentence.

For instance: A is accused of theft and the trial is going on, the
punishment prescribed for the offence is three years maximum and
he has already spent 1 ½ years in jail. Now, he gets the right to be
released on bail under this section.

According to the first proviso, the Court is duty bound to record

the reasons in writing, if after hearing the Public Prosecutor, it is of
the opinion that the accused person should not be released on bail
even after expiry of the half term of the maximum prescribed
punishment and continue to be detained in custody. The Court may
release the accused on bail instead of the personal bond with or
without sureties.
According to the second proviso, no person can be detained in
custody for a period longer than the maximum prescribed
punishment for the said offence.

The explanation to this section states that the period extended

due to the fault of the undertrial person in proceeding will not be
computed as the period of detention under the section for the
purpose of granting bail.
As per the directions of Hon'ble Apex Court in Cri.Writ Petition
No.310/2005 (Hon'ble Justice Kurien Joseph and Rohinton
Nariman JJ) and as per section 436-A of Cr.P.C. a person who has
undergone detention for a period extending half the maximum
detention for a period of imprisonment imposed for a particular
offence shall be released on his/her personal bond with or without
sureties.

BAIL IN NON BAILABLE OFFENCE:

Section 437. When bail may be taken in case of

non-bailable offence.
1. Under section 437 When a person is accused of, or suspected
of, the commission of any non-bailable offence, is arrested or
detained without warrant or appears or is brought before a
Court other than the High Court or Court of Session, he may
be released on bail, but such person shall not be so released,

a) if there appear reasonable grounds for believing that he has

been guilty of an offence punishable with death or
imprisonment for life;

b) if such offence is a cognizable offence and he had been

previously convicted of an offence punishable with death,
imprisonment for life or imprisonment for seven years or more,
or he had been previously convicted on two or more occasions
of a non-bailable and cognizable offence.
Proviso: Person may be released if such person is under the age of
sixteen years or is a woman or is sick or infirm.
Proviso: He may be released if it is satisfied that it is just and
proper so to do for any other special reason
Proviso: Accused person may be required for being identified by
witnesses during investigation is not a sufficient ground for refusing
bail if he gives an undertaking that he shall comply with such
directions as may be given by the Court.

2. If it appears to such officer or Court at any stage of the

investigation, inquiry or trial that there are no reasonable
grounds for believing that the accused has committed a non-
bailable offence, but there are sufficient grounds for further
inquiry into his guilt, subject to the provisions of section 446A
and pending such inquiry, he be released on bail, or, at the
discretion of such officer or Court on the execution by him of a
bond without sureties.

3. When a person accused or suspected of the commission of an

offence punishable with imprisonment which may extend to
seven years or more or abatement of, or conspiracy or attempt
to commit, any such offence, is released on bail under sub-
section (1) the Court may impose following condition which the
Court considers necessary in order to ensure that,

(i)such person shall attend in accordance with the conditions

of the bond

(ii)shall not commit an offence similar to the offence of which

he is accused or of the commission of which he is suspected,or

(iii) otherwise in the interests of justice.

 4. The Court or the police officer releasing any person on bail
under sub-section (1) or sub-section(2) is required to record
its reasons or special reasons in writing for doing so.
5. This sub section talks about cancellation of bail. If an
accused person violates any conditions of the bond, then, the
magistrate who released such person under sub-section (1) or
(2) may cancel the bail and direct that such person be arrested
and commit him to custody. This power is only with the
Magistrate and therefore, the police officer cannot cancel the
bail.
In case of a default bail, the Magistrate under this sub-section is
empowered to cancel it. Such a bail can be cancelled by the
Magistrate who has granted the default bail. It can also be
cancelled under section 439 (2) of the Code.
6. According to the provisions of this sub-section, if the trial of a
person accused of a non-bailable offence is not completed
within 60 days from the first date fixed for taking evidence in
the case and he was in custody during whole of that period,
then the accused is liable to be released on bail. But such
person does not get a right to be released on bail under this
sub-section. The Magistrate can keep him in custody for
special reasons to be recorded in writing.

This sub-section talks about the release of an accused on bail

after conclusion of the trial but before the judgement is delivered.
If the Court is of the opinion that the accused person is not
guilty, it shall release him on the execution of a bond with or
without sureties for securing his appearance to hear the
judgement on the specified date fixed by the Court.

Case Law: Kalyan Chandra Sarkar vs Rajesh Ranjan:2004 cr.lj

1796 s.c
The apex court observed that the detention of the accused in non-
bailable offences could not be questioned as being violative of
Article 21 of the Constitution.
SECTON 437A. Bail to require accused to appear
before next appellate Court.

This section is applied in a situation in which neither the trial has

been concluded nor the appeal has been finally disposed of. In such
a case, the accused person is required to sign a bond with sureties
to appear before the Appellate Court. Such bail bond shall be in
force a period of six months only.
According to sub-section (2), if an accused person fails to appear
before the appellate court, his bond will get forfeited and the
provisions of section 446 of the Code will be applicable in that case.

ANTICIPATORY BAIL

SECTION 438. Direction for grant of bail to

person apprehending arrest.
This section is related to anticipatory bail and was amended in the
year 2005. An application for anticipatory bail can be moved
directly to the High Court or the Court of Session as both have
concurrent jurisdiction for the purpose of granting anticipatory bail.
The anticipatory bail is nothing but a bail in the event of arrest,
when any person has an apprehension or reason to believe that he
may be arrested of an accusation of having committed a non-
bailable offence then he may apply to High Court or Court of
Sessions for direction that in the event of arrest he shall be released
on bail.
1. When any person has anticipation of arrest that he may be
arrested at any time and the offence committed by him is a non-
bailable offence, such person may apply for anticipatory bail
through an application to the concerned High Court or the Court of
Session. Upon receiving an application for anticipatory bail, the
court will examine whether there is any reasonable ground or not
for such an application and if court is satisfied that there are
chances of applicant getting arrested, then the Court shall release
him on bail. The following factors will be taken into consideration
by the court before granting anticipatory bail:
a) the nature and gravity of the accusation,
b) the antecedents i.e. previous record of the applicant,
c) the possibility of the applicant to flee from justice, and
d) whether the accusation has been made with the object of injuring
or humiliating the applicant by having him so arrested.
The High Court or the Court of Session, after going through the
following above stated factors have three options:
1. it may reject the application, if the court thinks that there is no
reasonable ground, or
2. it may issue an interim order for the grant of anticipatory bail, or
3. it may neither reject nor grant any interim anticipatory bail
rather fixes a date for next hearing.
The court may impose conditions whenever it grants an interim
anticipatory bail to the applicant. In case of a violation or breach of
any of the conditions that were being imposed on the applicant
while granting bail, his bail stands cancelled and he may be
arrested thereafter.
According to the proviso, a police officer can arrest a person
without warrant whose application for anticipatory bail is rejected
by the High Court or the Court of session. The applicant can be
arrested by the police officer on the basis of the accusation
apprehended in the application for the grant of anticipatory bail.
According to sub-section (1A), whenever the court grants an
interim order of anticipatory bail under sub-section (1), a minimum
seven days of notice will be given to the Public Prosecutor and the
Superintendent of Police. The service of notice to the Public
Prosecutor is done with the view to give him a reasonable
opportunity of being heard and to prepare the defence.
According to sub-section (1B), the complainant or informant can
file the application for the appearance of the accused person
seeking anticipatory bail at the time of final hearing of the
application.
According to sub-section(2), the High Court or the Court of
Session may impose conditions while granting an interim
anticipatory bail to the applicant. The following can be imposed as
conditions: -
1. that the applicant shall make himself available for interrogation
by the police officer as and when required.
2. that the applicant shall not make any inducement, threat or
promise to any person acquainted with the facts of the case, i.e.
witnesses.
3. that the applicant shall not leave India without the previous
permission of the Court.
4. any other condition given under section 437(3) of the Code can
be imposed as if the bail has been granted under that section.
Sub-section (3) talks about the effects of anticipatory bail.
Practically a non-bailable offence gets converted into a bailable
offence and therefore, the police officer upon arresting the accused
has to grant bail to him provided he furnishes the requirements for
bail and the Magistrate in such cases will issue a bailable warrant.
Som Mittal v. Government of Karnataka, 2008 SC)
There is no concept of anticipatory bail in Uttar Pradesh. It was
repealed because it was being highly misused. Instead of
anticipatory bail there is a concept of same day bail. The Apex
Court held that there is no concept of anticipatory bail in the state
of Uttar Pradesh and instead the concept of same day bail applies.
Same day bail is also highly misused in Uttar Pradesh and
therefore, the Government should amend the law and reintroduce
anticipatory bail.

Section 439 .Special powers of High Court or

Court of Session regarding bail.

1. This section empowers the High Court or the Court of Session

to grant bail and to cancel the bail. The High Court or the
Court of Session may grant bail to the accused person and
may impose any condition if the offence is of nature specified
in section 437(3) of the Code.
If the Magistrate imposes unreasonable conditions while granting
bail to the accused person, such conditions can be set aside or
modified by the High Court or the Court of Session under
subsection (1) (b).
According to the proviso, the High Court or the Court of session
shall give notice of the application for bail to the Public Prosecutor
before granting bail to the accused person, when such person
commits the offence punishable with life imprisonment which is
triable exclusively by the Court of Session or not.
Sub-section (2) empowers the High Court or the Court of session to
cancel the bail given under this chapter. The following is the
sequence as to who has the power to cancel the bail:
1. If High Court grants the bail, only High Court can cancel it.
2. If Court of Session grants the bail, either High Court or the Court
of Session can cancel it.
3. If the Magistrate grants the bail, either High Court or the Court
of Session can cancel it under section 437 (3) or the Magistrate can
cancel it under section 437 (5) of the Code.

.SECTION 440. Amount of bond and reduction

thereof.
 The amount of a bond shall not be excessive and it shall be fixed
with due regard to the circumstances of the case and the accused.
It should not be fixed mechanically merely on the basis of nature
and gravity of the offence, but other condition such as financial
circumstances of the accused and the probability of his absconding
etc. should also be taken into consideration while determining the
amount of bond.
According to sub-section (2), the accused person can file an
application to the High Court or the Court of Session requesting for
reducing the amount of bail bond in the cases where the bail has
been granted by the police officer or the Magistrate.

SECTION 441 Bond of accused and sureties.

This section contemplates formation of a personal bond by the
accused person and a bond by one or more sufficient sureties. A
person has to execute a bond for such sum of money as the police
officer or the Court things sufficient before being released on bail or
on his own bond.
The bond must contain the time, date and place for appearance of
the accused and omission to mention these details would render the
bond vague and therefore, void. The conditions imposed for release
of the accused on bail are also mentioned in the bond.
The bond can also bind the person released on bail to appear in the
High Court, Court of Session or any other Court to answer a charge
whenever required. In the cases, where more than one accused is
released on bail, the court should insist on separate bonds being
executed by each one of them with sureties.
According to sub-section (4), it is the duty of the court to determine
the sufficiency of securities at the time of granting bail to the
accused and for determining whether the sureties are sufficient or
not. The court may accept affidavits relating to the sufficiency of the
sureties or may hold enquiry. The surety promises to pay specified
amount if the accused person does not appear at the specified time
and place as required by law. Therefore, if the accused fails to turn
up at the given time, the surety money is forfeited.
SECTION 441A. Declaration by sureties.According to this section,
the surety to an accused person shall make a declaration before the
Court as to whom he has stood surety including the accused.

SECTION 442. Discharge from custody.

This section states that the accused person shall be released
immediately after the execution of the bond and if he is in jail, the
Court shall issue an order of release to the officer in charge of the
jail.

SECTION 443. Power to order sufficient bail when that

first taken is insufficient.
Whenever by mistake or fraud, insufficient sureties have been
accepted or they afterwards become insufficient, the Court may
issue a warrant of arrest against the accused and may order him to
find sufficient sureties.

SECTION 444. Discharge of sureties

The provisions of this section are related to discharge of sureties. A
surety who has executed a surety bond for the attendance and
appearance of the accused who is released on bail, may apply for
cancellation of his bond. When a surety applies for the cancellation
of his bond there is no such thing as hearing the application on the
merits. The presentation of the application itself imposes upon the
magistrate the duty of issuing a warrant for the arrest of the
accused. The procedure for discharge of surety is as follow:
(1) any person who becomes the surety for the accused person may
at any time apply to a Magistrate to discharge the bond, either
wholly or so far as it relates to the applicant.
(2) After this, the Magistrate will issue the warrant of arrest,
directing that the person so released be brought before him.
(3) On such person’s appearance, the Magistrate shall direct him to
furnish other sufficient sureties and if he fails to do so, may
commit him to jail.
SECTION 445. Deposit instead of recognizance.
This section aims at providing convenience to the accused
who being a stranger to the place, finds it difficult to
establish his identity. Accordingly, if in case a person is not
able to deposit property papers required by the Court to
executive bond, such court may permit him to deposit a
sum of money or Government promissory notes in lieu of
property papers. There is one exception to the above stated
provision, i.e. the Court cannot permit the accused to pay
the bond amount in cash or Government promissory notes
instead of executing the bond in the cases of a bond for
keeping good behaviour (Chapter-VIII).
SECTION 446. Procedure when bond has been
forfeited.
This section lays down the procedure on forfeiture of bonds. It
refers to two classes of bonds:
1. any bond executed under this Code for appearance or for
production of property; and
2. any other bond under this Code.
Both stand on the same footing so far as forfeiture is concerned.
When it is proved to the satisfaction of the Court that the bond for
appearance or production of property or any other bond has been
forfeited, it shall record the grounds of such proof and may call
upon any person bound to pay the penalty thereof or to show cause
why it should not be paid.
Sub section 2 If sufficient cause is not shown and penalty is not
paid, the Court will recover the same as if it were a fine imposed by
a Court under this Code as laid down in section 421.
 The proviso to sub-section (2) states that when the penalty is not
paid and cannot be recovered in the manner as laid down under
section 421 of the Code, the person so bound as surety shall be
liable, by order of the court ordering the recovery of the penalty, to
imprisonment in civil jail for a term up to six months.
According to sub-section (3), the Court may remit any portion of
penalty and enforce payment in part only.
According to sub-section (4), If the surety dies before the
forfeiture of bond i.e. conditions of the bond has not been violated
yet, in that case surety’s property shall be discharged from all
liability in respect of bond. But if the surety dies after the forfeiture
of bond, the property of surety will be liable for penalty.
According to sub-section (5), a certified copy of judgement
showing that the person who furnished security has been convicted
for breach of conditions of his bond can be used as evidence against
him. Therefore, when a person is convicted for breach of bond taken
under sections 106, 117, 360 or 448 of the Code, a certified copy of
the judgement will be used as evidence in proceedings against the
surety and shall be presumptive of his liability unless he proves the
contrary.

SECTION 446A. Cancellation of bond and bail bond.

The provisions of this section do not affect the provisions of section
446 of the Code. When a bond under this Code for appearance of a
person in a case is forfeited for breach of a condition, then:
1. the bond executed by the accused and sureties shall stand
cancelled; and
2. thereafter, the accused is not released on his personal bond in
that case.
The proviso to this section provides that an accused may be
released upon the execution of a fresh personal bond for such sum
of money and bond by one or more of such sureties as the police
officer or the Court thinks sufficient.
SECTION 447. Procedure in case of insolvency of death
of surety or when a bond is forfeited.
The court may order the person from whom security was demanded
to furnish fresh security in the following three circumstances:
1. when the surety becomes insolvent
2. when the surety dies
3. when the bond is forfeited under section 446 of the Code
In these cases, the Court may call the person from whom such
security was demanded to furnish fresh security and if such person
fails to furnish a fresh security, then, he will be liable for the
penalty as if there had been a default in complying with the original
order of the court.

SECTION 448. Bond required from minor.

This section talks about minor accused person. In case of minor,
the Court or a police officer may accept a bond executed by a surety
or sureties only.

SECTION 449. Appeal from orders under section 446.

According to the provisions of this section, all orders passed under

section 446 of the Code are appealable.
1. An appeal against the order of magistrate lies to the Sessions
Judge; and
2. An appeal against the order of Sessions Judge lies to the High
Court
SECTION 450. Power to direct levy of amount due on certain
recognizances. The High Court or Court of Sessions may direct any
Magistrate to levy the amount due on a bond for appearance or
attendance at such High Court or Court of Session.

Limitation for taking cognizance

(S 468-473) chapter XXXVI

SECTION 468. Bar to taking cognizance after lapse

of the period of limitation.—

Section 468 embodies the principle of fair trial. The object of putting
a bar of limitation was to prevent the parties from filing case after a
long time, as a result of which material evidence may disappear and
also to prevent abuse of the process of the court by filing vexatious
and belated prosecutions long after the date of offence.
Sub section (1) of section 468 provides that a court shall not take
cognizance of an offence after the expiry of limitation period. The
offences and period of limitation in respect of such offences is
prescribed by sub section (2) of section 468.
Sub-section (2).
(1) After six months, if the offence is punishable with fine.
(2) After one year, if the offence is punishable with imprisonment up
to one year, and
(3) After three years, if the offence is punishable with imprisonment
above one year but up to three years.

sub section (3) For the purposes of this section, the period of
limitation, in relation to offences which may be tried together, shall
be determined with reference to the offence which is punishable
with the more severe punishment or, as the case may be, the most
severe punishment.
The purpose for prescribing the period of limitation for taking
cognizance is to put pressure on the organs of criminal prosecution
so that the detection and punishment of the crime can be done
swiftly. It has been observed that the effect of punishment is
washed off with the passage of time, therefore, it ensures that the
effect of punishment is not washed with the lapse of time. The rules
prescribed under this section apply not only for the purpose of filing
of complaint but also for the purpose of taking cognizance of the
offence by the Court.
Case Law ; Nirmal Kanti Roy V. State of west Bengal 1998 cr. Lj
3282. Sc.
In this case it was held that the offence u/s 7(1) (a) (ii), of essential
commodities Act 1955 is cognizable and is punishable with
imprisonment up to 7 yrs.’, hence the bar of limitation for taking
cognizance provided by section 468 crpc would not apply in this
case.
In the case of Venkappa Gurappa Hosur vs Kasawwa (1997), the
Court held that:
“ once the period of limitation begins to continue, it continues its
full course.”

Section 469: Beginning of period of limitation

The period of limitation commences from the following points:
 On the day when the offence was committed

 When the person aggrieved by the act had no knowledge

regarding the commission the offence or the police officer;
it begins on the day when it comes to the knowledge of
the aggrieved party or police making an investigation into
the case whichever is earlier.
  When the person who has committed an act is unknown or
not being identified, the first date on which the accused was
known either to the aggrieved person or to the police officer
making an investigation into the case whichever is earlier.
The day from which such period of limitation begins shall be
excluded for the purpose of this Chapter. It means that the first day
from which the period of limitation begins to be calculated shall not
be included while computing the period of limitation.
Let us understand from the example:
The offence punishable only with the fine was committed on 1st
May 2019. The period of limitation begins from 2nd May 2019 and
not from 1st May 2019.
In the case of State of Rajasthan vs Sanjay Kumar,1998 Cri LJ
256 (SC), the Court stated that the period of limitation will not
commence from the date when the sample was taken but from the
date when the report of Public Analysts was received in case of
adulteration.

Section 470: Exclusion of Time in certain cases

This section provides the period which shall not be included in
computing the period of limitation.
The period of limitation that is to be excluded in computing the
period of limitation is explained below:
 The time during which such person is prosecuting another
prosecution with due diligence whether it is a court of Appeal,
or in the Court of the first instance against the offender.
Such period will not be excluded unless another prosecution is
related to the same circumstances or the facts of the case for which
the previous prosecution has been initiated or the court in which
the previous proceeding has been being is unable to entertain the
case due to lack of jurisdiction.
 In the case where the institution of proceeding is stayed by the
order or injunction, the time shall exclude:
1 The period during the continuance of such order or injunction.
2 The day on which it was made or was issued.
3 The day on which it was withdrawn.
 In a case where the notice of prosecution of offence is given or
the previous consent or the sanction of the Government is
mandatory under this law or any other law for the time being
in force the time during which:-

1 The period of notice or;

2 The period for obtaining the consent or sanction of the
Government shall be excluded.
3 It also specifies that the time which is required for taking the
sanction or the permission from the Government or any other
authority -The date on which the application was made for taking
the consent or sanction and ;
The date on which the permission or the consent was granted shall
be excluded.
 In computing the period of limitation such period is to be
excluded
1. The time during which the offender is absent from India or
from any territory which is outside from India but is under the
administration of Central Government.
2. The time during which the offender has avoided arrest either
by concealing himself or either by absconding.

Section 471: Exclusion of date on which court is

closed:
The day when the Court is closed is excluded from being accredited
to the specified period of limitation.
It is a rule that in the case when the period of limitation expires on
the day of the closure of court proceedings the cognizance of an
offence is taken when the court reopens.
Explanation . When the court closes on normal working hours for a
particular period it is presumed that the Court has been closed for
the same day.

Section 472: When the offence continues:

When the offences continue or are in the process of happening;
fresh limitation begins to run at every moment, the offence is
replicated throughout the full term that it continues.

Section 473: Extension of Period in Certain Cases:

This section is the pivotal section as it focuses on administering
justice. It gives a chance to the complainant or the aggrieved person
to institute the suit even after the expiry of the prescribed period of
limitation.
In normal circumstances, the case is not to be instituted after the
expiry of the prescribed period but in exceptional circumstances,
the court allows for the institution of the suit.
Discretion of the Court
It is the discretion of the Court to extend the period of limitation.
This section does not mandate the court to extend the period of
limitation.
Conditions:
 When the court is satisfied with the facts and circumstances
of the case that complainant was prevented by sufficient cause
from not appearing before the Court within the prescribed
period of limitation.
 The cause of the delay is properly explained and the court is
satisfied with it.
 The court is of the opinion that it is necessary to extend the
period in the interest of justice.
 Unit IV
Sentencing Powers of Courts
a. Mode of Judgment 354 , 365
b. Confirmation of Death Sentence SS 366-371
c. Suspension, Remission and Commutation of
Sentence (SS 418-435).

a. Mode of Judgment 354 , 365

Judgment (353)
A judgment is a final decision of the Court, given with reasons, on
the question of the guilt or innocence of the accused person.
Judgment means a judgment of conviction or acquittal, but not an
order of discharge.
A judgment in every trial shall be pronounced in an open Court by
the presiding officer immediately after the close of the trial or at
some subsequent time of which notice shall be given to the parties.
The following are to be kept in mind before delivering a Judgment :
a) The Judgment shall be delivered (whole judgment) after being
taken down in short-hand, as soon as it is ready, and dated and
signed by the presiding officer.
b) it is the duty of the presiding officer to read out the judgment in
an open Court.
c) it is also the duty of the presiding officer to read out the operative
part of the judgment in an open Court.
The copy of the judgment it shall be immediately made available to
the parties free of cost.
The trial Court is required to secure the attendance of the accused
at the time of delivering a judgment of conviction, whether he is in
custody or not, except where his personal attendance during the
trial has been dispensed with and the sentence is one of fine only.
No such attendance is required when he is acquitted. In order to
avoid delay in the disposal of the case in which there are two or
more accused persons, the Court may pronounce the judgment in
the absence of any of the accused persons on the date on which
judgment is to be pronounced.
According to sub-section (7), a judgment delivered shall not become
invalid on account of the absence of any party (or his pleader) on
the day or from the place notified for the delivery thereof or on
account of omission or defect in service of notice of such day and
place.
According to sub-section (8), nothing in this section shall limit in
any way the extent of the provisions of section 465 of the Code.

SECTION 354 Language and contents of

judgment.
This section states that every judgment must comply with the
following requirements:
1) it shall be written in the language of the Court, which is
determined by the State Government;
2) it shall contain the points for determination, the decision and the
reasons for the decision.
3) the particular offence, the relevant section of the penal code or
other law under which the accused is punished and the quantum of
punishment should be mentioned; and
4) in the case of acquittal, the judgments must mention the offence
of which the accused was acquitted.
A judgment must be self-contained and should show that the
Magistrate or the Judge has applied his judicial mind to the facts
and the evidences of the case. It should be speaking order though it
need not be the rhyme of the entire evidence. Judicial decorum
requires that judgment’s and orders should be confined to facts and
legal points involved in particular cases which judges deal with.
When the conviction is under the Indian Penal Code and it is
doubtful under which of the two sections or parts of the same
section, the Court shall distinctly express the same and pass
judgment in the alternative.
According to sub-section (3), the sentence of death may be awarded
only for special reasons i.e. only special facts and circumstances in
a given case will warrant the passing of such sentence in view of the
irrevocable character of the death penalty. It is not possible to make
a catalogue of the special reasons which may justify the passing of
the death sentence but a few may be indicated, such as the crime
has been committed:
1) By a professional or hardened criminal, or
2) It has been committed in very brutal manner, or
3) It has been committed on a helpless child or a woman, or the
like.

According to sub-section (4), when the conviction is for an offence

punishable with imprisonment up to one year or more, but the
Court imposes a sentence of imprisonment for a term of less than
three months, it shall record its reason for doing so, unless the
sentence is one of imprisonment till the rising of the Court or the
case was tried summarily.
According to sub-section (5), when a person is awarded death
sentence, the sentence shall direct that he be hanged by the neck
till he is dead. Execution of death sentence by hanging by the neck
has been held not violative of article 21 of the Constitution of India.
Generally, the penal laws prescribe the maximum term of
imprisonment in respect of an offence only in exceptional
circumstances, the law prescribed minimum term of imprisonment
that the Court must, in the least, award for an offence. The Code
has a policy is not in favor of short term of imprisonment imposed
on the offender, as it sometimes proves more harmful to the
accused. It grants a person as a previous convicted without
affording him the advantage of living are disciplined life in jail for a
sufficiently long time.
SECTION 365. Court of Session to send copy of finding and
sentence to District Magistrate.
Under this section the Court of Session or a Chief Judicial
Magistrate is bound to forward a copy of its finding and sentence (if
any) awarded to an accused to the District Magistrate within whose
local jurisdiction the trial was held. The purpose behind forwarding
a copy of its finding and sentence is to keep the District Magistrate
apprised of serious crimes which have been dealt with by the Court
of Session or the Chief Judicial Magistrate so that he can formulate
a strategy for preventing and controlling such crimes in future.
 b. Confirmation of Death Sentence SS 366-371
CHAPTER XXVIII

The questions that arise are who can pass a verdict of the death
penalty? What is the procedure of its confirmation? What happens
once the death sentence is passed by a judge of the Sessions Court?
Sections 366-371 of the Code of Criminal Procedure, 1973 deals
with the ‘Submission of death sentences for confirmation’ .

Section 366. Sentence of death to be submitted

by Court of Session for confirmation.
Section 366 partially answers the question of who can pass a
verdict. This section provides that if a Session Court passes the
death sentence against the accused(s) then the High Court needs to
confirm it before it comes into effect. Thereby, it is necessary to
submit the proceedings before the High Court and only after
confirmation from the High Court the execution can be brought into
effect, and not before that.
The death penalty is the highest level of punishment and it follows
the principle of ‘rarest of rare’ (uncommon crime or that is unusual
to a person of ordinary prudence, the one which shocks and causes
tremors throughout the judiciary and the society). This section
works as a precautionary step to minimize the error while meeting
the ends of justice.
In the case of State of Punjab vs Kala Ram @ Kala Singh (2018),
the Court held that under Section 366(2) of CrPC the court while
passing the conviction shall grant the jail custody of the convicted
person under a warrant i.e. the person shall be kept in custody and
not as a punishment. The ‘safe keeping’ in jail custody is the limited
jurisdiction of the jailor. It is a trusteeship in the hands of the
Superintendent, and not an imprisonment in a real sense.
Further Sections provide the powers the High Court has in regard
to cases submitted under Section 366 of the CrPC.

Power to direct further inquiry to be made or

additional evidence to be taken (Section 367)
Sub-section (1) of Section 367 of the CrPC provides that when the
proceeding for confirmation of the death penalty is submitted to the
High Court and it notices any point of innocence or guilt of the
accused, it may either direct the Sessions Court or itself to make
further inquiry into it or take additional evidence into consideration.
It is usually done when the High Court feels that the Sessions Court
has missed some points or factors.

Sub-section (2) of Section 367 provides that the convict can be

directed to dispense his/her presence during such inquiry or taking
of the evidence unless the High Court otherwise directs.
Sub-section (3) of Section 367 provides that if the Sessions Court
(authority other than the High Court) makes the enquiry or takes
into consideration such evidence then it shall be certified by the
Sessions Court.
In the case of Balak Ram Etc vs The State of U.P. (1974) the
Supreme Court in the final judgment stated that High Court had
failed in properly considering the pieces of evidence of the
prosecutor’s witnesses and held that while inquiring against a
death penalty case or taking into consideration different pieces of
evidence, the High Court shall take into consideration all the pieces
of evidence itself as it is its duty.

Power to the High Court to confirm sentence or annul

conviction (Section 368)
Section 368 provides that when a case is submitted to the High
Court under Section 366 of the Code of Criminal Code, the High
Court may;confirm the sentence passed by the Sessions Court, or
pass a sentence other than the one provided it is warranted by the
law, orannul the conviction passed by the Sessions Court, and
instead either convict the accused under any other offence for
which the Session’s Court had convicted him/her or order for a trial
on an amended charge or on the same charge, or acquit the
accused of the charges made against him.
The proviso to the section states that till the time the limitation
period to file an appeal against the verdict is not expired, or the
appeal is still pending or is not disposed of, the Court cannot pass
an order of confirmation.
In the case of Kartarey and Ors. vs The State of Uttar Pradesh
(1975), the Sessions Court had passed the verdict announcing the
death sentence which was later altered by the High Court. When
the case reached the Supreme Court it was observed that the High
Court has committed a grave error in examining the evidence or
additional evidence.

It states that it is the duty of the High Court to ‘reap-praise’ the

evidence in totality and it shall come to a conclusion on the merits
of the case only after considering the proceedings in all their
aspects. It is important and crucial to consider the defence evidence
equally and not to neglect it as this is contradictory to the settled
rule of practice and law.

Confirmation or new sentence to be signed by two

judges (Section 369)
Section 369 provides that whenever a case is submitted to the High
Court under Section 366 of CrPC it shall be heard by a divisional
bench i.e. at least by two or more judges. For confirmation of:

 the sentence, or
 any new sentence, or
 any order.
Passed by the High Court shall be ‘made, passed and signed’ by
either two or more judges. It is an essential condition that cannot
be ignored.

Procedure in case of difference of opinion (Section 370)

A question that arises now is what happens when the judges in
equal proportion have conflicting opinions? Section 370 of CrPC
provides the answer to it and states that the manner provided in
Section 392 of CrPC shall be followed in the case when sitting
judges that heard the case are equally divided in opinion about the
case. The parties do not have to specify it to the court, the court
takes the suo-moto and follows the procedure as per Section 392 of
CrPC.
The Section 392 of states that when a High Court bench hears a
case and ends up having divided opinions, in such case the appeal
along with the diverging opinions shall be laid before a judge of the
same Court. That judge shall deliver his/her opinion only after
hearing the judges, and that opinion shall be followed by the
judgment or order in question.
The proviso to the section states that if any of the sitting judge, or
the judge before whom the judgment or order in question is laid
under this section, requires the appeal to be heard again or be
heard by a larger bench of judges then it shall be done accordingly.
In various cases, this section has been applied including the case of
Sri D N Srinivash Reddy vs State of Karnataka (2018). In this
case, the judges while deciding the case were not able to pass a
majority decision due to difference in opinion therefore, the
procedure described under Section 392 was followed. The judge
who heard the matter under Section 370 of CrPC quashed the
proceedings against the accused who were arrested during a raid.

Procedure in a case submitted to the High Court for

confirmation (Section 371)
Section 371 of the Code of Criminal Procedure provides that cases
of the death penalty which are submitted to the High Court by the
Sessions Court after being decided upon shall be sent to the
Sessions Court. The order passed by the High Court shall be one of
the options provided in Section 368 i.e. confirmation, annulment of
the conviction, the acquittal of the accused among others. It is the
duty of the concerned officer of the High Court to send a copy of the
order passed by the High Court to the Sessions Court without any
delay, under the seal of the High Court and attested with his/her

c. Suspension, Remission and Commutation of

Sentence (SS 418-435). Chapter XXXII

Introduction
In the country, there are various constitutional and statutory
provisions which suspend, remit or commute sentences, given to
the convict. Under the Indian Constitution, 1950, Article 72 and
Article 161 empower the Governor and the President to grant
pardon, suspend, remit or commute the sentence. Meanwhile in the
Criminal Procedural Code, 1973, there is a whole Chapter XXXII
dedicated to the suspension, remission and commutation of
sentence.
Object and scope of the topic
The power to remit, suspend or commutate a sentence is exercised
by the head of the state. The executive can show mercy on the
convict by way of remission, suspension or commutation etc. The
basic purpose of the suspension, remission, commutation and other
forms of showing mercy, is to take into consideration certain
aspects of the case which do not arise during the proceedings in the
court of law. Just like the other Chapters of CrPC, this is applicable
to the whole of India.

Execution of sentences of imprisonment (418)

Under Section 418 of the CrPC, a person who is imprisoned for life
or for terms other than those mentioned in Section 413 of the CrPC,
the court passing such sentence has to give a warrant to the place
where the person has to be confined unless such person is confined
to such place. However it must be the person who is imprisoned till
the court is rising, then there is no need to forward a warrant to the
jail and the person shall be confined as per the direction of the
court.
Under Section 418(2) of the CrPC, if the accused is not present in
the court at the time when he is sentenced to such imprisonment,
then, in that case, the court has to order for the arrest of that
person, by way of an arrest warrant, for forwarding him to jail or
any other place where he shall be confined and the sentence will
start from the time of arrest of the accused.
In the case of Ishwarbhai Hirabhai Churana vs the State of
Gujrat, this Section is held to be mandatory. Moreover, under this
Section, the court also owes a duty to ensure that the sentence is
executed, otherwise, the accused may avoid it.
The warrant issued is non – bailable, as it empowers the authority
to arrest the person, after the issuance of this warrant. Such a
warrant is necessary in case the sentence was pronounced in the
absence of the accused.

A warrant for the execution of sentence of

imprisonment ( 419, 420).
Under Section 419 of the CrPC, the warrant for the execution of the
sentence of imprisonment has to be directed to the in-charge of the
jail or of any place in which the accused is to be confined.
But if the person is to be confined in the jail, then the warrant
needs to be given to the jailor.(section 420).

Execution of the sentence of fine

A warrant for the levy of fine (421)
When the court sentences to levy the fine on the offender, it can
recover it through either or both of these methods.
 1. Issue of warrant for the levy of amount through the
attachment of the movable property of the offender.
2. Issue of a warrant to the district collector and order him to
collect it as an arrear of land revenue accruing from a movable
or immovable property or both. The collector, in this case,
shall collect the arrears of revenue as per the prevailing laws
with respect to the collection of revenue in the country. The
warrant here will only serve the purpose of a certificate.
It is important to note that in case it is mentioned that there shall
be imprisonment if default of payment happens, and if the offender
has already served the default sentence, then no court shall issue
such warrant, unless there are some special circumstances which
have to be recorded in writing, or if there is an order for the
payment of compensation of fine that arose as per the provisions of
Section 357.
The state government can make rules in regards to how the
execution of the recovery of the fines would take place and the
summary claims made by a person other than the offender himself
would be considered accordingly.
No such warrant shall be executed by the arrest or detention of the
person in the prison.

Effect of such warrant (422)

The court shall order the attachment of property for the recovery of
fines within the local limits of its jurisdiction, however, it could
order such attachment outside its jurisdiction too if it is endorsed
by the District Magistrate of the area in which the property to be
attached is present.

A warrant for the levy of fine issued by a court in any

territory to which this Code does not extend (423)
If the offender has been sentenced to pay the fine in the territory
where this code does not apply, then the court would issue a
warrant to the District Collector of the area where the code applies
and order him to collect the fine by way of arrears of revenue. This
warrant shall be treated as if it is issued under Section 421 of the
Code and all the conditions would apply accordingly.

Suspension of execution of the sentence of

imprisonment in default of payment of fine (424)
When the offender has been sentenced to fine only and in case of
default of payment he shall be imprisoned, and if the fine is not
paid then:
 The order that the fine shall be made in full within 30 days of
such order or in instalments in which the first instalments
shall be made within 30 days of such order and the next
instalments within the intervals of not more than 30 days.
 The court may order the suspension of imprisonment order, if
the offender gives a bond with sureties or not, depending upon
the court, for the payment of the fine in full or in instalments.
If the offender fails to furnish the fine at the latest date on
which such instalments has to be made, then the court shall
order the execution of the imprisonment order.
 This shall also apply in the case where the order for the
payment of money has been made for the non- recovery of
which imprisonment may be made. And if the person fails to
furnish a bond for the payment of the fine, the court may
order the execution of the imprisonment immediately.

General provisions regarding the execution

Who may issue a warrant? (424).
Under Section 425, every warrant which is issued for execution is to
be given by the Magistrate or the Judge or Magistrate who passed
the sentence or by their successor in-charge.

The sentence on an escaped convict (426) If a sentence of

death, life imprisonment or fine is passed under the provisions of
this code, on an escaped convict, then the execution of such
sentence should take effect immediately.
When the sentence is passed on the escaped convict then:
 When this sentence is more severe than the previous sentence
from which the convict escaped, then the sentence shall take
place immediately.
 If the present sentence is less severe than the sentence from
which the convict escape then the accused has to serve the
term which is remaining of the sentence he escaped from.
 The sentence of rigorous imprisonment will be more severe
than the imprisonment of the simple nature.

The sentence on offender already sentenced for

another offence ( 427)
If a person has been previously convicted for a sentence and then is
subsequently convicted for another, then the person has to serve
his former punishment first and then will serve the punishment
sentenced later. Or if the court orders that both the punishment are
to be served concurrently. The punishment could be imprisonment
or imprisonment for life. It is also to be noted that where a person
who has been sentenced to imprisonment by an order under
Section 122 in default of furnishing security is while undergoing
such sentence, sentenced to imprisonment for an offence committed
prior to the making of such order, the latter sentence shall
commence immediately.
However, if a person is already sentenced to life imprisonment and
then subsequently is punished for a term or for life imprisonment,
then the former sentence would run concurrent to the latest
imprisonment.

Period of detention undergone by the accused against

the sentence of imprisonment (428)
Where an accused is serving a sentence, other than the one on the
default of payment of fine, and the term of detention undergone by
him during the investigation and trial of the same case shall be set
off against the term imposed on him from such conviction. The
person shall be liable only for the term of imprisonment left if in
case the sentence of imprisonment is given to him.
In case of a sentence given under Section 433A, such period of
detention shall be set off against fourteen years referred to in that
Section.

Saving (429).
But nothing in Section 426 and Section 427 shall be the reason to
excuse any person from the term he is sentenced to in his former or
subsequent conviction.
When an award of imprisonment in default of payment of a fine is
added to a substantive sentence of imprisonment and the person
undergoing the sentence is after its execution to undergo a further
substantive sentence or substantive sentences of imprisonment. In
this case, the sentence accruing to the default of payment of fine
should be served by the person only after he has undergone the
subsequent sentences.

Return of warrant on execution of sentence (430)

When the sentence has been executed fully, the officer executing
such a sentence will have to return the warrant to the court which
has issued it. The warrant that is returned has to be undersigned
by the respective officer. The method of execution of the sentence
must also be specified by the officer in charge.

Money ordered to be paid recoverable as a fine( 431).

Any money which is payable (other than fine) under the provision of
this act, and the method of recovery of such money is not expressly
given in the Code, then it shall be collected in the manner as if it is
fine.
It is to be noted that Section 421 shall, in its application to an order
under Section 359, by virtue of this Section, be construed as if in
the proviso to Sub-Section (1) of Section 421, after the words and
figures “under Section 357”, the words and figures “or an order for
payment of costs under Section 359” had been inserted.
Suspension and remission of sentences
Constitutional provisions
The Constitution of India, vests a large amount of sovereign power
in the President and the Governor. Centre and the State are
governed in the name of President and Governor respectively. Under
Article 72 of the Indian Constitution, the President has the power to
pardon, remit, suspend or commute any sentence.
Under Article 72, the President has the power to pardons, reprieves,
respites or remission of punishment or to suspend remit or
commute the sentence of any person convicted of any offence:
 In cases where the punishment is given by the court-martial.
The Governor’s power to remit, suspend or commute the
sentence under the laws of the State, shall be given
precedence.
 In cases where the power of executive extends.
 In cases where the punishment is a death sentence.
Similarly, under Article 161 of the Constitution of India, these
powers are conferred on the Governor of the States. The Governor
can pardon, reprieve, respite a punishment or suspend, remit or
commute the sentence, which is given on the basis of the laws
prevalent in the State, to which the executive power of the State
extends.
The difference between the pardoning power of the President and
that of the Governor is that the Governor does not enjoy the power
to grant pardon to a death sentence.
However, this power of the President is not absolute and depends
on the consultation with the council of ministers. This is not
present in the Constitution but practically this process is followed.
Further, the Constitution does not provide for any mechanism to
check the legality of the decision taken by the President and the
Governor while exercising their mercy power. However, in the case
of Epuru Sudhakar vs the State of Andhra Pradesh, a small
leeway is provided for judicial review of the mercy granting power of
the President and the Governor to rule out any sort of arbitrariness.

Suspension or remission of sentences (432)

The suspension is the stay or postponement of the execution of the
sentence. In remission, the duration of the sentence is reduced,
without changing the nature of the sentence. Remission and
suspension differ to a large extent. In remission, the nature of the
sentence is remained untouched, while the duration is reduced i.e.
the rest of the sentence need not be undergone. For example, a
person sentenced for a term of two years, his sentence is now
reduced to one year. The effect of the remission is that the prisoner
is given a certain date on which he shall be released and the eyes of
the law he would be a free man. However, in case of breach of any
of the condition of remission, it will be cancelled and the offender
has to serve the entire term for which he was originally sentenced.
The procedure followed is given under Section 432 of CrPC, 1973.
The government would ask the opinion of the court which gave such
a sentence. The court would revert with proper records. The
government can grant or reject the application for remission and
suspension if in its view all the conditions necessary for such a
grant are not fulfilled. the offender may if at large, be arrested by
any police officer without a warrant and is to undergo the unexpired
portion of the sentence. The power of remission is wholly an
executive action. There is no law as such to question the legality of
this action, but the government should use this power fairly and
not in an arbitrary manner. However, the court must consider the
limitation provided under Section 433A of the CrPC, 1973. The
power of remission and suspension should not in any way interfere
with the conviction of the court, it should affect the execution of the
sentence.

Commutation of sentence (433).

In contrast to Suspension and Remission, which only affect the
duration of the punishment without interfering with the nature of
the punishment, Commutation, on the other hand, changes the
nature of the punishment and converts it into a less severe form of
punishment.
There is nothing to restrict the government to commutate a
sentence, even if it is as low as a fine. Under Section 433 of the
CrPC, the appropriate government gets the power to commutate the
sentence in an appropriate case. Various sentences are eligible for
commutation, one of them is death sentence i.e.mercy plea.
 Death sentence to any other punishment provided in the IPC.
 Imprisonment for life to any other imprisonment not exceeding
fourteen years or fine.
 Sentence of rigorous imprisonment for simpler imprisonment
which the person has been sentenced or a fine.
 Sentence for a simple sentence to a fine.
Commutation of death sentence has always been in the controversy,
it raises an issue regarding the basic human rights of the accused
and on the other hand the impact of the grave crime on the society.
Section 433 of the CrPC gives the power to the government to
commutate the death sentence to a simpler sentence.
Most of the convicts of the death sentence, get their sentence
reduced to 14 years of life imprisonment in accordance with the
provisions of CrPC.

Restriction on powers of remission or commutation in

certain cases (433 A)
Section 433A of the CrPC puts a restriction on the power of the
President and the Governor that they can’t commutate the death
sentence to less than 14 years of life imprisonment. In absence of
any order under Section 51 of the IPC or Section 433A of the CrPC,
the convicts are not released even after the expiry of 14 years of
imprisonment.
Moreover, remission can be granted under Section 432 of the CrPC
in case of a definite term of sentence. The power is to grant
“additional” term of imprisonment which is over and above the
remission granted to convict under the jail manual or statutory
rules. In case of an indefinite sentence, like that of life
imprisonment, may remit or suspend the sentence of the person
but not on the basis that such imprisonment is arbitrary or on the
assumption that it is for twenty years.
Concurrent power of the Central Government in case of
death sentences (434)
Under Section 434 of the CrPC, it is stated that the powers under
Section 432 and Section 433, which are given to the State
government, can be exercised by the Central government in case of
a death sentence.

State government to act after consultation with the

Central Government in certain cases (435).
Under Section 435 of the CrPC it is stated that the power given to
the state government to remit or commutate a sentence in an
offence:
 Which is investigated under the Delhi Special Police
Establishment or by any other agency which is constituted
under any Central Act other than this Code.
 Which involves misappropriation or destruction of, or damage
to any property belonging to the Central government.
 Which was committed by the person who is working under the
Central government and was discharging his official duty.
Such offences, as mentioned above, shall not be discharged by the
state government except after the consultation of the central
government. Moreover, no order of remission, commutation, or
suspension by the state government shall apply where the executive
power of the Central government also extends, or where the terms
of imprisonment of a person have to run concurrently. Such orders
will have effect only where the central government has passed the
same sentence with regard to the subject matter on which the
executive power of the centre extends.
According to the 41st Report of the Law Commission of India, it was
stated that there are some matters on which the centre is vitally
concerned although on those subject matters the laws of the State
government would apply. It is thus necessary that the central
government should have a say on those matters and the state
government should work only in consultation of the central
government otherwise the administration of law and justice would
be very difficult for the central government.

Conclusion
The sentence awarded by the judiciary to an offender can be
remitted, suspended or commutated by the executive action. The
provision of the Constitution and Criminal Procedure Code, 1973,
gives various powers to the President and the Governor to alter the
sentence awarded to the offender. This executive power has no legal
check but after the few judicial cases, a small window for the
judicial review has been available.
Remission in basic terms means to reduce the duration of the term
of the sentence. Suspension, on the other hand, means to postpone
the sentence without changing its duration. The above two do not
interfere with the nature of the sentence. Commutation, in contrast,
changes the nature of the punishment and turns it into a less
severe one.
There are also various matters on which the state has to pass
sentence in the consultation of the Central Government as the
latter is vitally concerned with those subject matter. Under the
CrPC, separate provisions are present for pregnant women.
 Unit-V
Appeal, Revision and Reference (Section 372,376,378,382,394-
397,399,405). Chapter XXIX
INTRODUCTION
The process of criminal justice has some serious consequences on
an individual’s life, primarily on the right to life and personal
liberty. Each and every institution built by humans is prone to
fallibility; therefore, this applies to the decisions rendered by courts
as well. Resultantly, there should be specific provisions in place so
as to scrutinize the decisions of lower courts in order to obviate the
scope of miscarriage of justice. Realizing this aspect, there are
certain provisions which have been included in the criminal
procedure on appeal against a judgment or order of criminal courts.
CrPC contains elaborate provisions on appeals starting from Section
372 to Section 394.
In a general sense, appeal is a legal right conferred upon parties,
however, revision completely depends on the discretion of a criminal
court, which means that it is not a right as such. In criminal cases,
at least one appeal is granted to an accused by the legislature,
whereas there is no such right in instances of revision. In fact, the
courts have many times discussed the difference between an appeal
and a revision. In the case of Hari Shankar vs Rao Ghari
Chowdhury 1963 AIR 698 , the Supreme Court held that “the
distinction between an appeal and a revision is a real one. A right of
appeal carries with it a right of rehearing on law as well as fact,
unless the statute conferring the right of appeal limits the rehearing
in some way as. The power to hear a revision is generally given to a
superior Court so that it may satisfy itself that a particular case has
been decided according to law.”
APPEAL
The word “appeal” has not been defined in The Code of Criminal
Procedure, 1973, (hereinafter CrPC), however, it can be described as
the judicial examination of a decision, given by a lower court, by a
higher court. The Merriam-Webster dictionary defines appeal as “a
legal proceeding by which a case is brought before a higher court
for review of the decision of a lower court”

SECTION 372. No appeal to lie unless otherwise

provided.
This section expressly provides that there can be no right of appeal
against a judgment or decision of a lower Court unless a provision
for appeal is specifically provided by the law itself. It therefore,
follows that there is no inherent right of appeal because an appeal
is a creature of the statute.
Comment
(1) Appeal is the right of entering a superior court and invoking its
aid and inter-position to redress the error of the court below.
(2) A proceeding taken before a superior court or authority for
reversing or modifying decision of an inferior court or authority on
ground of error.
(3) The word “appeal” means the right of carrying a particular case
from an inferior to a superior court with a view to ascertain whether
the judgment is sustainable.
Ingredients
i) Appeal from any judgment or order of a criminal court lies only in
two cases –
a) As provided by the Code of Criminal Procedure; or
b) As provided by any other law for the time being in force.
ii) No appeal lies except as above mentioned.
The Code does not permit appeal in petty cases (Section 376), nor
does it allow an appeal where the accused is convicted on his plea
of guilty (Section 375). The proviso gives a right to the victim to file
an appeal in the High Court against any order of a criminal Court
acquitting the accused or convicting him for a lesser offence or the
imposition of inadequate compensation.
In the case of Satya Pal Sigh vs State of Madhya Pradesh
Criminal Appeal No. 547 of 2013., the Hon’ble Supreme Court
held that the father of the deceased has a locus standi to present an
appeal to the High Court under the proviso of Section 372, as he
falls within the definition of “victim”, to question the correctness of
judgment and order of an acquittal of accused.

SECTION 376.No appeal in petty cases.

According to section 376, there shall be no appeal by convicted
person in the following cases:
(a) Where the only sentence is one of imprisonment up to 6 months,
or of fine upto Rs 1000, or of both, and is passed by High Court, or
(b) Where the only sentence is one of imprisonment up to 3 months
or of fine up to Rs. 200, or of both, and is passed by a Sessions
Court or Metropolitan Magistrate, or
(c) Where the only sentence is one of fine up to Rs. 100, and is
passed by a Magistrate of the first class, or
(d) Where the only sentence is one of fine up to Rs. 200, and is
passed in a summary trial by a Chief Judicial Magistrate, a
Metropolitan Magistrate, or a first class Magistrate specially
empowered by the High Court.
Proviso. An appeal may be brought in the above mentioned cases, if
any other punishment is combined with any such sentence.
However, such sentence shall not be appealable merely on the
ground:
(i) that the person convicted is ordered to furnish security to keep
the peace, or
(ii) that a direction for imprisonment in default of payment of fine is
included in the sentence, or
(iii) that more than one sentence of fine is passed in the case, if the
total amount of the fine does not exceed the amount hereinbefore
specified in respect of the case.
For the purpose of appeal, aggregate of consecutive or concurrent
sentences passed against the accused shall be deemed to be a
single sentence. Thus where two sentences of fine are passed, it is
the aggregate which is to be looked at for the purpose of
determining the right of appeal.

SECTION 378. Appeal in case of acquittal

Meaning of acquittal
Acquittal in general terms means that the accused is innocent and
has not committed the offence he/she was accused of. The decision
of acquittal is given by the judge after inspecting all the evidence
and hearing arguments of the defense and the prosecution. It
implies that no evidence has been brought up to prove that the
accused has carried out an offence as per the Code of Criminal
Procedure, 1973.
In this section, District Magistrate is empowered to direct the public
prosecutor to file an appeal to the Court of Session for the order of
acquittal done by any Magistrate in a matter of cognizable and non-
bailable offence.
The State is also empowered to direct the public prosecutor to file
an appeal for the order acquittal done by any court other than High
Court for appeal or revision.
If the investigation is done by Delhi Special Police Establishment or
any central agency, the direction to file an appeal will be given by
the Central Government.
It is to be noted that prior permission of the High Court will be
taken before filing an appeal at the High Court.
If an order of acquittal is given in a matter of case instituted on
complaint, and High Court grants special permission to present the
appeal, then such appeal can be presented by the complaint.
 If the complainant is a government servant, then the
application can be moved within six months from the order of
acquittal.
  If the complainant is not a government servant, then the
application can be moved within 60 days from the order of
acquittal.
If such appeal is rejected, no appeal from an order of acquittal shall
lie.

SECTION 382. Petition of appeal

Section 382 prescribes the form of a petition of appeal, which
corresponds with the complaint in the original proceeding, and
gives jurisdiction to the appellate Court.
It lays down that every appeal is to be made in the form of a
petition in writing presented by the appellant or his pleader. Unless
the Court otherwise directs, every such petition is to be
accompanied by a copy of the judgment or order appealed against.
The rule contained in this section is a technical rule, it requires an
aggrieved person filing an appeal to attach a copy of the judgment
appealed against. The purpose of this rule is to give the Appellate
Court an initial idea of what the case is about at the time of passing
interim orders. The provision should not be read as creating a
disability against a person from filing an appeal.
Even though there is no such provision required under the code yet
the Memorandum of appeal should contain a succinct statement of
the grounds on which the appellant proposes to support the appeal.

. SECTION 394. Abatement of appeals.

Every appeal against inadequacy of sentence under section 377,
and against acquittal section 378, shall finally abate on the death of
the accused. Every appeal from conviction shall also finally abate
on the death of the appellant; however, there are two exceptions to
this rule:
(i) An appeal from conviction shall not abate on the death of the
appellant during pendency of the appeal if leave to continue of the
appeal is granted by the Appellate Court to the near relatives of the
appellant, where the appeal is against a conviction and sentence of
death or of imprisonment. ‘Near relative’ means a parent, spouse,
lineal descendant, brother or sister.
(ii) Where the appeal is from sentence of fine, it shall not abate. This
is because of ‘fine’ constitutes liability on the estate of the deceased
or legal representative.
Explanation.—In this section, “near relative” means a parent,
spouse, lineal descendant, brother or sister.
It is clear that an appeal against an order of acquittal under section
378 or an appeal for the enhancement of the sentence under
section 377, can only abate on the death of the accused and not
otherwise. Once an appeal against an acquittal is entertained by the
High Court, it becomes the duty of the High Court to decide the
same irrespective of the fact that the appellant either does not
choose to prosecute it or is unable to prosecute it for one reason or
the other. Every appeal against conviction abates on the death of
the accused except an appeal from a sentence of fine. An appeal
from a sentence of fine is excepted from the all pervasive rule of
abetment of criminal appeals for the reason that the fine constitutes
liability on the estate of the deceased and the legal representative of
the deceased on whom the estate devolves are entitled to ward off
that liability.
Reference and Revision (Section 395-405 of
CrPC)
Introduction:
A Judge may make some error as Judge also human. No human is
perfect this can apply to Judges or Magistrates. The provisions such
as Appeal, Review and Revision are to avoid any injustice if any
human has grievance about the given decree or Judgment and an
attempt to reduce the errors, which has been done by Judges and
Magistrates.
Section 395 to Section 405 of Criminal Procedure Code, 1973, deals
with the powers of reference and revision granted to the higher
courts; those powers are discretionary and extensive. The appellant
courts have powers to obviate any failure of justice. The High Court
can take up any revision petition on either way by petition by
aggrieved party or by any other party or by its own motion i.e.
suomoto. Aggrieved person can get shelter of law by using the
provision of the Chapter XXX, Sections 395 to 405.
Reference – Meaning under CrPC.
There is no statutory definition of reference provided in the Criminal
Procedure Code. Reference is a matter between two courts where
the lower court seeks the opinion of the High Court regarding an
act, ordinance or regulation.

SECTION 395. Reference to High Court

According to this Section there are some conditions which must be
fulfilled for the satisfaction of the Court to make a reference to the
High Court. A reference can be made, if:
1. It involves a question of the constitutional validity of any Act,
Ordinance or Regulation or any provision contained therein, or
2. A real or substantial question regarding the validity of the Act is
involved and the determination of that question is necessary for the
disposal of the case, or
3. The Act, Ordinance or Regulation is invalid or inoperative but
has not been so declared by the High Court to which that Court is
subordinate or by the Supreme Court.
For the purpose of this section, any Court here means a Court of a
Judicial Magistrate, Metropolitan Magistrate or Court of Session.
Therefore, any of these Courts may refer the question of validity of
any Act, Ordinance or Regulation etc. to the High Court for seeking
reference.
According to sub-section (2), the Court of Session or the
Metropolitan Magistrate has the discretion of referring a case to the
High Court for its decision on any question of law arising in the
hearing of the case before it. The reference by the Court of Session
or the Metropolitan Magistrate can only be made on a question of
law and not on a question of fact.
The sub-section (3) empowers the Court to grant bail where a
reference has been made to the High Court. Any Court, i.e. Court of
Session, Judicial Magistrate or Metropolitan Magistrate making a
reference to the High Court under sub-section (1) or (2) may, either
commit the accused person to jail or release him on bail on a
condition to appear when called upon, till the High Court decides
the reference.
Explanation.—In this section, “Regulation” means any Regulation
as defined in the General Clauses Act, 1897 (10 of 1897), or in the
General Clauses Act of a State.
SECTION 396. Disposal of case according to decision of High
Court.
Where a reference is made to the High Court by any subordinate
Court, it shall pass such orders as it thinks fit. The High Court
shall also send the copy of such order to the subordinate Court so
that the case can be disposed of conformably to the said order.
The High Court may also direct by whom the costs of such
reference shall be paid.

Meaning of Revision under Criminal Procedure

Code: –
A revision or modification is a rule that is to correct or change a
decision already made. Both revision and appeal are under the
review procedures of Criminal Procedure Code. Superior Courts
have the power to suspend or execute the sentence. That is, a
Court’s decision can be modified by Sessions court or higher or
Supreme Court. The main objective of both sides is to modify,
change, correct the decision already made by the trial court. The
Revision power can be exercised by Superior Court.

SECTION 397. Calling for records to exercise powers of

revision.
This section empower the High Court or the Court of Session to call
for and examine the record of any proceeding before any
subordinate Court for the purpose of satisfying itself, as to:-
(1) the correctness, legality or propriety of any order passed by the
subordinate Court, or
(2) regularity of any proceedings of such Court.
The High Court or Court of Session may also direct that the
execution of any sentence or order be suspended and if the accused
is in confinement be released on bail or on his own bond pending
the examination of record. The revisional Courts have power to
grant bail via section 397 of the Code.
The explanation to section 397(1) clarifies that for the purposes
of sections 397 and 398, all Magistrates, whether Executive or
Judicial, shall be deemed to be inferior to the Sessions Judge.
Revision is the sole option where appeal does not lie.
Sub-section(2) bars the exercise of revision power in relation to any
interlocutory order passed in any appeal, inquiry, trial or other
proceedings. This provision has been introduced with a view to
speed up the disposal of criminal cases. It was thought that revision
petitions against interlocutory order would not only delay justice
but might sometimes defeat it.
For instance: Bail order, summons for document etc. These orders
are not very material orders and the therefore, merits of the case
will not get affected by these orders.
Generally revision lies upon a non-interlocutory order. However, if
an Interlocutory order has been passed without jurisdiction (i.e.
Court has no power to pass order) then a revision will lie.
For instance: Dismissal of complaint – this is a material order as it
will directly affect the merits of the case as such and hence it is not
an interlocutory order and revision will lie.
According to sub-section (3), one cannot file an application of
revision in both the Courts i.e. the High Court and the Court of
Session simultaneously; therefore, parallel applications cannot be
filed. If Court of Session rejects the application then one can go to
the High Court but not viceversa.

SECTION 399. Sessions Judge’s powers of revision

The Sessions Judge may exercise all or any of the powers which are
exercisable by the High Court under Section 401(1) of the Code.
The limitations on the exercise of the revisional powers of the High
Court as contained in subsections (2), (3) and (4) of Section 401,
and the enabling provision for ‘treating the application for revision
as a petition of appeal as contained in sub section (5) of section 401
are also applicable to every proceeding by way of revision
commenced before a Sessions Judge.
Sub section (3) provides that where an application for revision is
made before the Sessions Judge, the decision of the Sessions Judge
shall be final and no further application by the same person shall
be entertained by the High Court.

What is the difference between Appeal and Review?

• Review is mostly concerned with the correctness of the legal

matters of a decision whereas an appeal is mostly concerned with
the correctness of the decision itself.

• Review is filed in the same court whereas appeal is filed in a

higher court.

• Appeal is a statutory right of the individual whereas review is a

discretionary right of the court.

• Procedural irregularity, impropriety, irrationality, and illegality

form the basis of a review whereas there can be grounds of
dissatisfaction or disappointment for filing an appeal.

• An appeal is a request to change or modify the decision or verdict

whereas review is a request to look into the legality of the ruling.
Differences Between Appeal and Revision
1) Legal right in Appeal Vs. Revision
The appeal is a constitutional right for an unsuccessful party in the
court. Revision on the other hand is discretion of the court,
meaning it can take place or not.
2) Hearing in the court
The appeal is a court hearing like any other while revision is not
necessarily heard in the court.
3) Type of court
According to the Civil Procedure Code, a request is handled by a
superior court to the previous court so it must not be a high court.
A high court can only revise.
4) Power of interference
In appeals, the courts have the power to interfere in any way but in
revision the influence of intervention is limited.
5) Number of procedures in Appeal Vs. Revision
There is only one procedure involved in an appeal that is the
hearing of the case. In revision, however, two methods are included,
preliminary and final.
6) Continuity
An appeal is a continuation of the court proceeding on a certain
case while a revision is checking whether the legal actions were
followed in the proceedings.
7) Type of examination involved in Appeal and Revision
An appeal examines law basics and facts on the other hand revision
entails examination of legal actions, jurisdiction and procedure
followed to arrive at a decision.
8) Time limit
In an appeal a party is given a certain time limit to have filed an
appeal which begins immediately a final decision is made by a lower
court. In revision there is no time limit, a party can file for it any
time though the time must be reasonable.
9) Filing
For an appeal to be successful the party involved must file for the
appeal but in the case of revision filing is not a necessary act.

Difference between Reference and Revision

REFERENCE
It is defined under Chapter XXX
of the Criminal Procedure Code
It is defined from Section 395-
396 of the Criminal Procedure
Code .
Reference is made to the higher
court on the points of the law.
The Reference occurs while the
case is still pending in the court.
Reference is to consult the High
Court on insolvency or invalid
law, act, regulation or ordinance
related to the case at hand.
Reference is made by the trial
court to the High Court.
REVISION
It is defined under Chapter XXX
of the Criminal Procedure Code.
It is defined from Section 397-
402 of the Criminal Procedure
Code .
Revision is made to both higher
and lower court on the already
adjudicated matters.
The revision begins under the
final judgment or final order or
final decision of the court.
Revision is to review, change or
amend any grammatical, clerical
or arithmetic error by a trial
court or high court.
The revision can be initiated by
the trial court suo moto or the
High Court.