Cr.P.C.

Synopsis
Unit – III
1. Provisions as to Inquiries and Trials
Sections 300 to 327 deal with the general provisions relating to inquiries
and trials and sections 328 to 339 sets out provisions regarding inquiries
and trials as to accused persons of unsound mind.
Section 300 lays down a general rule that person once convicted or
acquitted not to be tried for the same offence
Jathendra Singh vs Ranjit Kaur 2001 Cr.L.J. 1015 SC
The sub-secs to section 300 provides for the exceptions to the general rule.
(i) A person acquitted or convicted of any offence may be afterwards
tried, with the consent of the State Government, for any distinct
offence for which a separate charge might have been made against
him at the former trial.
(ii) A person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different
offence from that of which he was convicted, may be afterwards
tried.
(iii) A person acquitted or convicted of any offence constituted by any
acts may be subsequently charged with, and tried for, any other
offence constituted by the same acts which he may have committed
if the Court by which he was first tried was not competent to try the
offence with which he is subsequently charged.
(iv) 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.
Section 301 empowers the Public Prosecutor and Assistant Public
Prosecutor to appear and plead without any written authority. Section 302
empowers the Magistrate to permit any person to conduct the prosecution.
Section 303 sets out the rights of the person against whom proceedings are
instituted to be defended bya legal practitioner of his choice.
It was held in Bashira vs State of U.P. A.I.R 1968 SC 1313 that
where a person is denied right to be defended by a pleader of his own
choice in violation of this section the trial shall be illegal.
Section 304 provides for legal aid to the accused at State expense in
certain cases if he is indigent person. Section 305 sets out procedure when
Corporation, Registered society is an accused.
Section 306 provides for provisions relating to tender of pardon to
accomplice. An approver is a person who is an accomplice in crime and
who turns out a witness for the prosecution.
It was held in State of U.P vs C. Gyaneshwar Rao AIR 1963 SC
1850 that the object of the section is to allow pardon to be tendered when
in a case where grave offence is alleged to have been committed by several
persons, with the aid of the evidence of the person pardoned the offence
could be brought home to rest.
The Magistrate tendering pardon must maintain a record stating, (a) the
reason for his tendering pardon and (b) whether it is accepted or not.
According to section 307 the Special Judge and Chief Judicial Magistrate
are empowered to tender pardon. Section 308 sets out provisions for the
trial of person not complying with conditions of pardon. Section 309
authorises the Magistrate to postpone or adjourn the proceedings.
In P.G.Thampe vs State of Kerala 1994 Cr.L.J. 634 (Ker) it was held
that when a witness is present in court his examination should not be
adjourned to another day merely because counsel for the party is engaged
in other case.
Section 310 empowers the Magistrate to visit and inspect any place in
which an offence is alleged to have been committed. According to Section
311 the court has the power to summon material witness or examine
person present.
Syed Firozuddin vs State of Rajasthan 1993 Cr.L.J. 1169 (Raj)
Sawal Das vs State of Bihar AIR 1974 SC 778
Section 312 provides for expenses of complainant and witnesses and
criminal court may order such payment. Section 313 lays down the power
to examine the accused and the court may at any stage without previous
warning may put questions to the accused.
It was held in Jai Deo vs State of Punjab AIR 1963 SC 612 that the
object of this section is to give the accused an opportunity to say what he
wanted to say in respect of the prosecution case against him. Under this
section no oath shall be administered to the accused when he is examined
and shall not be punished if he refuses to answer or gives false answers.
Section 314 provides for addressing oral arguments and for filing
memorandum of arguments. According to section 315 the accused person
shall be a competent witness but he shall not be called as a witness except
on his own request in writing.
It was held in Hargun Sundar Das vs State AIR 1970 SC 1514 that failure
to give evidence on the part of the accused shall not give rise to any
presumption against him.
Section 316 curtails the use of any kind of influence by way of any
promise or threat to induce the accused to disclose or withhold any matter
within his knowledge. Section 317 provides for inquiries and trials to be
held in the absence of the accused in certain cases. Section 318 sets out
the procedure where accused does not understand proceedings. Under such
circumstances the court may proceed with the inquiry or trial and if such
proceedings result in conviction the same shall be forwarded to the High
Court with a report of the circumstances of the case. Section 319
empowers the court to proceed against the persons appearing to be guilty
of offence if it appears to the court from any evidence that such person
could be tried together with the accused.
Section 320 sets out law relating to compounding of offences. Section
320(1) mentions the offences that may be lawfully compounded even
without permission of the court. But if the offences to be compounded
which are mentioned under section 320(2) the permission of the court is
necessary. The offences not mentioned in either of these sections are not
compoundable.
It was held in Ram Lal vs State of Jammu & Kashmir 1999 Cr.L.J.
1342 (SC) that an offence which law declares to be non-compoundable
cannot be compounded even with the permission of the court.
Section 321 enables Public Prosecutor or Assistant Public Prosecutor who
is in charge of the case to withdraw from prosecution by filing an
application. When the Magistrate has no jurisdiction to try the case section
322 provides that he shall stay the proceedings and it must be transferred
to Chief Judicial Magistrate along with brief report. According to section
323 when after commencement of the inquiry or trial the Magistrate finds
case should be committed then he shall commit it to Court of Session.
Section 324 provides that when a magistrate is satisfied that the accused
person was previously convicted of offence against coinage, stamp law or
property then he shall be sent for trial to Chief Judicial Magistrate or to
Court of Session. As per section 325 when the Magistrate cannot pass
sentence sufficiently severe or appropriate then he should submit the
entire proceeding to Chief Judicial Magistrate to whom he is subordinate
and he shall forward all he accused if there are more accused. The Chief
Judicial Magistrate may pass sentence or even he may commit the case to
Court of Session. According to section 326 when a part case is tried by his
predecessor the succeeding may if he thinks necessary re-summon any
witness, examine, cross-examine or re-examine the witness. Section 327
provides that it is a general rule that the place in which any criminal court
is held be deemed to be an open court, to which the public generally have
access.

Provisions as to accused persons of unsound mind

(Section 328 to Section 339)
Section 328 sets out procedure in case of accused person being lunatic.
And if the Magistrate has reasons to believe while holding inquiry that the
accused person is a lunatic or is incapable of making his defence. The
Magistrate shall inquire into such fact of unsoundness and shall cause such
person to be examined by Civil Surgeon of the District and shall examine
such officer as a witness and reduce the examination into writing and shall
postpone the proceedings.
Section 329 provides for a similar procedure to be adopted in case of a
person of unsound mind tried before the court. and according to section
330 when a person is found t be unsound under section 328 or 329 and is
incapable of making defence the Magistrate, whether the case is one where
bail may be taken or not, may release him on sufficient security being
given that he shall be properly taken care of and shall appear before the
court when required by court. Section 331 provides for resumption of
inquiry or trial on a certificate of fitness that he is capable of making
defence. And according to section 332 when the accused appears r is
brought before the Magistrate and the Magistrate considers him capable of
making his defence, he inquiry or trial shall proceed.
Section 333. In case he appears to be of sound mind the magistrate may
proceed with the case and based on evidence before him if he is satisfied
that the accused has committed an act, if committed by a person of sound
mind would have been an offence and he has reasons to believe that the
accused was of unsound at the time of commission of offence and that he
was incapable of understanding the nature of the act and act was wrong or
contrary to law, then the Magistrate may try himself or commit him to the
Sessions Court for trial.
According Sec.334 the Magistrate may acquit the accused on the ground
that the accused was of unsound mind at the time of commission of
offence and incapable of knowing the nature of the act but the judgment
must state whether he has committed the alleged act or not.
Section 335 lays down that even if such accused is acquitted on such
ground he must be detained in safe custody. He may also pass an order that
the accused to be delivered to any of his relatives or friend but only on
application by such relative and also on giving security the person
delivered shall be with condition that he shall be properly taken care of
and prevented from doing injury to himself or to any other person and will
be produced before such officer as provided by the State Government.
Section 336 sets out the power of State Government to empower officer in
charge to discharge the functions of Inspector General and Section 337
lays down procedure where lunatic prisoner is reported capable of making
his defence. When the person is in prison the Inspector General or if in
asylum two visitors certify that he is capable of making defence and shall
be receivable in evidence, he shall be taken to Magistrate.
Section 338 provides for procedure where the lunatic detained is declared
fit to be released. If Inspector General or visitors certify that he may be
released, the Government may appoint a commission with a judicial
officer and two medical officers for an inquiry as to the state of mind of
such person, take evidence if necessary and report to the Government.
Section 339 provides that of the accused may be delivered to a relative or a
friend on application by such relative.

2. Judgment
[Section 353 to section 365]
Judgment is the final decision or sentence of the court on a legal
proceeding based on facts, evidence and arguments of the case.
Section 353 lays down that the judgment should be pronounced in the
open court by the presiding officer immediately after the termination of the
trial. Section also provides the modes of pronouncing judgement.
(i) By delivering whole of the judgement
(ii) By reading out the whole of the judgment .
(iii) By reading out and explaining the operative part of the judgment
The copy of the judgement will be made available immediately to the
accused person free of cost. The accused must be brought before the court
to hear judgement.
Section 354(1) lays down regarding the language and contents of the
judgment.
(a) It requires that the judgment shall be written in the language of the
court and
(b) it shall contain the points for determination and reasons for the
judgment and section
(c) the content of the judgement shall include the section of IPC under
which the accused is convicted. If acquitted reasons must be given. The
benefit of all reasonable doubt will be given to the accused.
In Palekanda Korumbaiah vs State of Karnataka 1989 Cr.L.J (NOC) 73
(Karn) the judgment must specify the offence and the section of IPC or
other law under which accused is convicted.
In Niranjan Vs State 1978 Cr.L.J 638 (Cal) it was held that the language
and contents of the judgment be self-contained and must also show that the
court has applied its mind to the facts and evidence.
Section 354(2) if it is doubtful as to under which section the offence falls
the court shall distinctly express the same and may pass judgement in the
alternative.
Section 354(3) when conviction is for death or life imprisonment or
imprisonment for a term of years, the judgment shall state the reasons and
if death sentence then shall state the special reasons.
In Balwanth Singh vs Sate of Punjab AIR 1976 SC 230 it was held that the
death sentence will be justified only when the special reasons are shown.
In Ambaram vs State of M.P. AIR 1976 SC 2196 Supreme Court observed
that the new Code makes imprisonment for life a rule and death sentence
an exception.
In Harnam Singh vs State of U.P. AIR 1976 SC 2071 it was held it is not
appropriate to impose death penalty on an accused convicted of murder if
he was at the time of commission of offence was under the age of 18
years.
Supreme Court has given guidelines as to death sentence in Muniappan vs
State of Tamil Nadu 1981 Cr.L.J 726 (SC). It was a case of double murder
and Sessions Court passed death sentence which was confirmed by the
High Court with reason that it was terrific double murder. But Supreme
Court held is all murders are terrific and if it is considered the death
sentence will be a rule not exception and section 354(3) will become a
dead letter.
It was held in Bachan Singh vs State of Punjab 1980 Cr.L.J 636 (SC) death
sentence should be given in rarest of rare cases.
Section 354(5) when any person is sentenced to death, the sentence shall
direct that “he shall be hanged by the neck till he is dead”
In Deena vs Union of India 1983 Cr.L.J 1602(SC) execution of death
sentence by hanging by neck does not violate Art. 21 of the Constitution.
Section 354(6) order under section 117, sec.125, 145, 147 shall contain the
points for determination and the reasons for decision.
Section 355. provides for what are the particulars to be recorded by
Metropolitan Magistrate. Particulars regarding the complainant, accused,
offence committed and final order with date of order and also the reasons
for such decision in case of appealable orders.
Section 356 whenever a person is convicted by the court for more than
three years and again convicted for the same offence the court may order
while passing sentence change of residence must be notified for a term not
exceeding 5 years after expiration of such sentence.
Under Section 357 the court may order for payment of compensation, from
the fine recovered by the convicted person, for the prosecution expenses,
for the injuries suffered by the victim, if stolen property is purchased
without knowing to be stolen then to compensate such person.
While awarding compensation the court should look into the capacity of
the accused to pay and other relevant factors like nature of the crime, the
injury suffered by the victim, and consider the justness of the claim to
compensation.
In Manish Jalan vs State of Karnataka (2008)4Cr.L.J. 3941(SC) it was
observed that while awarding compensation the capacity of the accused to
pay and relevant factors like nature of the crime, the injury suffered, the
justness of the claim to compensation etc. to be considered.
Section 357A Victim Compensation Scheme
(1) Every State Government with the Central Government shall prepare a
scheme for providing funds for the purpose of compensation to the victim
or his dependents who have suffered loss or injury as a result of the crime
and who, require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation,
the District Legal Service Authority or the State Legal Service Authority,
as the case may be, shall decide the quantum of compensation to be
awarded under the scheme referred to in sub-section (1)
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the
compensation awarded under section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and the
victim has to be rehabilitated, it may make recommendation for
compensation.
(4) Where the offender is not traced or identified, but the victim is
identified, and where no trial takes place, the victim or his dependents may
make an application to the State or the District Legal Services Authority
for award of compensation.
(5) On receipt of such recommendations or on the application under sub-
section (4), the State or the District Legal Services Authority shall, after
due enquiry award adequate compensation by completing the enquiry
within two months.
(6) The State or the District Legal Services Authority, may order for
immediate first-aid facility or medical benefits to be made available free of
cost to the victim, on the certificate of the police officer who is the officer
in charge of the police station or a Magistrate of the area concerned, or any
other interim relief as the appropriate authority deems fit.
Section 358 empowers the court to award compensation to a person
groundlessly arrested, to the extent of Rs. 1,000/- and the same to be paid
by the person who causes such arrest after issuing show cause notice for
such informant.
Section 359 empowers to pass orders in non-cognizable cases if the
accused is convicted, in addition to the penalty imposed on him may order
him to pay to the complainant the costs of litigation.
Section 360 empowers the court to release on probation of good conduct
and after admonition. The section is a piece of beneficial legislation and
applies only to first offender, to woman and persons below the or age of 21
years but not applicable if the offence is punishable with death
imprisonment for life.
Section gives guidelines as to exercise the discretion not to punish. The
object of the section is to avoid sending the first offender to prison where
the risk of turning him into a regular criminal.
According to this section first offender is,
1. Those who are above the age of 21 years and convicted of an offence
punishable with fine only or with imprisonment for a term of 7 years
or less.
2. Those who are under the age of 21 years or any woman convicted of
an offence not punishable with death or imprisonment for life.
Sec.360(2) at his discretion the Magistrate may take further inquiry or
additional evidence . Section 360(3) he also may release the 1st offender
after admonition considering his age, character, antecedents, physical and
mental condition of the offender etc.
Section 361 provides that where the accused may be given benefit of
Probation of Offenders Act but not given that benefit section 361 requires
that reasons for doing so must be given.
It was held in Nanna vs State of Rajasthan 1989 Cr.L.J 279(Raj) that
provisions of 360 and 361 are mandatory and court should comply with
provisions suo motu.
Section 362 lays down that the court not to alter the judgment. No court
has the power to alter judgement once it is pronounced except to correct
clerical or arithmetical errors. It is a review procedure in the same court.
Section 363 provides that copy of the judgement to be given to the accused
free of cost immediately on pronouncement of the judgement. The
certified copy on application shall be given free of cost without delay if the
judgement is appealable. Provision to section says that in case of death
sentence the copy of judgment shall be given immediately free of cost
whether applied or not.
Section 364 sets out the provisions relating to translation of judgement
which is done only when the judgement is recorded in a language different
from that of the court and the accused requires it.
Section 365 requires that when cases are tried by Court of Session or a
CJM or JMFC they shall forward a copy to District Magistrate.

3. Appeals, Revision and Reference

[Section 372 to 405]
Despite all provisions mistake cannot be ruled out because it is a human
judgement. Therefore code provides for review procedures which corrects
the decisions of the lower court.
They are Appeal and Revision.
(a) Appeals
[section 372 to 394]
A right to appeal is not a natural or inherent right. It must be expressly
given by the statute. So it is said “appeal is a creation of statute”
No appeal lies in certain cases.
1. Section 372 - No appeal lies unless provided by law.
2. Section 376 - No appeal lies in petty cases. Petty cases are where,
(a) High court passes a sentence of imprisonment for less than 6 months or
fine not exceeding 1,000/- or both.
(b) Court of session passes sentence not exceeding 3 months or fine not
exceeding 200/-
(c) JMFC passes sentence only fine not exceeding 100 /-
(d) In summary trial where fine is less than 200/-
3. Section 375. No appeal when the accused is convicted on his plea of
guilty. But it must be genuine plea of guilty which is voluntarily
made.
In State of Kerala vs Gopinath Pillai 1980 Cr.L.J 39 it was held that it
must be genuine plea of guilty.
Appeals from conviction
Appeal to Supreme Court
(a) When a person is convicted on a trial by the High Court in its
extraordinary original jurisdiction power to remove, try and
determine any suit or proceeding instituted in the court of any
District Judge within its jurisdiction then appeal lies to Supreme
Court. [Section 374(1)]
 (b) Where the High court has, on appeal, reversed the order of
acquittal and convicted the accused to death or imprisonment for
life or imprisonment for a term exceeding 10 years.[Section 379]
(c) If the high court certifies that case involves a substantial question
of law as to interpretation of Constitution.[Art. 132(1)]
(d) Where high court refused and SLP is filed before Supreme Court
within 60 days but Supreme court satisfied that case involves a
substantial question of law [Art. 136(1)]
(e) Where high court certifies the case is a fit case for appeal to
Supreme court.
Appeal to High Court – Section 374(2)
Any person convicted on a trial held by a Sessions Judge or an Additional
Sessions Judge or on a trial held by any other Court in which a sentence of
imprisonment for more than seven years has been passed against him or
against any other person convicted at the same trial, may appeal to the
High Court.
Appeal to Court of session - Section 374(3)
From metropolitan magistrate, Asst. sessions judge or JMFC JMSC
Section 380 provides for special right to appeal – where more persons are
convicted and appealable order has been passed against any of such
person, all are having the right to appeal.
Section 377. Appeal by the state government on the ground of inadequacy.
Appeals in case of acquittal
Section 378. State Government may direct PP to present an appeal to the
High Court from an original order of acquittal passed by any court.
Section 378(3) no appeal shall be exercised except with the leave of the
High Court.
Section 378(4) only on special leave to appeal by HC the Complainant
may appeal from the order of acquittal.
Section 378(5) Special Leave Petition shall be filed within 6 months if
complainant is public servant and Within 60 days in other cases.
Sec. 378(6) no appeal lies if such order of refusal for grant of special leave
to appeal.
Appeal against acquittal is an extra ordinary remedy. Here initial
presumption of innocence has been duly shown by a decision of a
competent court. Restriction is to safeguard the interests of the accused
person.
According section 378
(i) An appeal against order of acquittal may be preferred only in
cases instituted by the government.
 (ii) Right of appeal can be exercised only after obtaining leave of the
HC
(iii) Order of acquittal from any court Magistrate or Sessions Judge,
or any offence major or minor, appeal lies only to HC.
(iv) Within limitation period of 60 days application for grant of leave
must be filed.
In State of U.P. vs Gambhir Singh 2005 Cr.L.J 2579 (SC) it was held
that if two views are possible the one in favour of accused must be
preferred.
In P.V. Antony vs State of Kerala 1989 Cr.L.J 2482 (Ker) it was held
that only Public Prosecutor can file an appeal under this section.
In Reema Agarwal vs Anupam 2004 Cr. L.J 892(SC) it was observed
that summary rejection of application of leave to appeal is not proper.
HC is duty bound to indicate reasons when it refuses to grant leave.

Other points to consider are,

Section 381lays down how appeal to Court of Session must be heard by
Sessions Judge or Addl. Sessions Judge.
Appeal against order of conviction on a trial by Judicial Magistrate Second
Class shall be disposed of by Asst. Sessions Judge or CJM.
Section 382. Appeal shall be preferred by filing a Memorandum of appeal
by the appellant or his pleader and shall be accompanied with the copy of
judgment which is being challenged. It must contain the grounds for
appeal.
Section 383. when appellant is in jail he may file an appeal through the
officer in charge of the jail who shall forward it to the proper appellate
court.
Section 384. summary dismissal of the appeal may be made when they is
no sufficient ground for interfering but reasonable opportunity of being
heard has to be given to the appellant. The court may call for records of
the lower court and also record reasons for its finding.
In Rajgopal Bairaram vs State of Maharashtra AIR 1974 SC 1150 the
Supreme court held that the Appellate court has the power to dismiss
summarily but it can do so only on perusal of the petition and copy of the
judgement. Without speaking order the decision is illegal or unjustified.
Procedure for hearing appeals.[section 385]
Notice shall be served as to time and place of hearing to the appellant, or
his pleader, Public Prosecutor, complainant. And copy of the grounds of
appeal shall be furnished to the accused.
Section 386. Power of the Appellate court.
It has power to dismiss after hearing the appellant or his pleader, and PP if
there is no sufficient ground for interfering.
And in an appeal from order of acquittal reverse it and direct further
inquiry and re-trial or find him guilty and pass sentence on him.
In an appeal from conviction reverse the finding and sentence, and acquit
or discharge the accused or order for retrial. It may alter the finding or
alter the nature of the sentence but not so as to enhance the same.
In an appeal for enhancement of the sentence, finding may be altered, or
nature of the sentence may be altered or reversed, or order him to be
retried. It may also pass any consequential or incidental order that may be
just and proper.
In Ishwar Singh vs State of U.P AIR 1976 SC 2423 the Supreme Court
held that the trial court over looked important features like delay in filing
FIR, absence of statement as to injuries in FIR, non-examination of
material witness and therefore the order of conviction and sentence should
be set aside.
Section 387 the rules as to judgement, the rules in criminal court of
original jurisdiction shall apply.
Section 388 whenever a case is decided by the HC, it shall certify its
judgement and sent to JMFC through CJM and if Executive Magistrate
through District Magistrate
Section 389 the appellate court may suspend the sentence pending appeal
and release of accused on bail by recording reasons in writing.
Section 390. Arrest of accused on appeal from acquittal. High Court is
empowered to issue a warrant for arrest.
Section 391(1) appellate court may take further evidence and the case may
be remanded to take evidence.
Sec.392. procedure where Judges of the court of appeal are equally
divided. It Shall be laid before another judge and will be re-heard. Such
judge has to deal with only on points of difference.
Section 393 the judgment passed by the appellate court shall be final.
Section 394 abatement of appeals. Appeal under sec.377 and 378 may be
abated on death of the accused. Every other appeal shall abate on the death
of the appellant. In such case within 30 days his nearest relatives shall
make an application to the appellate court for leave to continue the appeal.

(b) Reference
(Sections 395 & 396)
Reference enables the lower court to consult High court on a matter of
law. The question as to the validity of any act, ordinance or regulation, if
necessary may refer the same for decision to the High Court. Its
determination is necessary for disposal of such case.
Certain conditions are necessary for making reference to the High Court.
1. The case must be pending before the court making such reference and
the court is subordinate to such High court.
2. The court must satisfy that the determination of that case involves a
question as to
(a) validity of any act, ordinance (passed when parliament is not in
session and it will be ceased if it is not approved by the
Parliament within 6 weeks) or regulation (bye laws, official
rules, by a municipal body)
(b) any provision contained in such act, ordinance or regulation
(c) Determination of validity of such act, ordinance or regulation is
necessary for disposal of such case.
(d) The court making the reference must be of the opinion that such
act, ordinance or regulation is invalid or inoperative.
(e) Till the date of reference such act, ordinance or regulation is not
declared by the Supreme Court or High court as invalid.
Once the High Court makes a decision it will be sent to the subordinate
court and such court shall dispose of the case in conformity with such
order.
In Qazi Mohd.Hanif vs Mumtaz begum 1990 CrLJ(Bom) the subordinate
court cannot make a reference on the ground that a different view was
taken by some other HC.
Section 396. disposal of case according to the decision of the court.

(c) Revision
(Sec.397 to 405)
Apart from appeal the other review procedure is revision. where the right
of appeal is not available the code provides for revision to avoid
miscarriage of justice. The right of appeal is a statutory right and not
available in each and every case and ordinarily only one appeal is allowed.
It is available only when statute provides for that. So party may look into
other remedy which is revision.
High Court or Sessions judge may call for records from the inferior court
within its jurisdiction to know the correctness, legality or propriety of a
decision. Section 397 to 405 empowers the higher courts for revision. The
revisional powers of the superior courts are very wide and purely
discretionary in nature. No party is having any right as such to be heard in
revisional court.
The revisional powers are limited.
(i) No revision where an appeal lies no appeal is preferred. If appeal
lies according to statute then the party should go for an
appeal.[Section 401(4)]
(ii) No revision in respect of an order on interlocutory matters.
section 397(2)
(iii) Order of acquittal cannot be converted into conviction in revision.
except in exceptional cases like
(a) acquittal by a court having no jurisdiction, or
(b) where the trial court has wrongly ruled out evidence, which
was admissible evidence tendered by the prosecution.
(c) appellate court wrongly held evidence admissible which
was found not admissible by the trial court,
(d) no revision in case of acquittal on the basis of compounding
of offences which cannot be compounded.
(e) Material evidence is overlooked either by the trial court or
by the appellate court.
(iv) Only one revision application is allowed to High Court or Court
of Session.
The purpose of the revision is to satisfy the correctness and legality of any
finding, sentence or order and the regularity of any proceeding of such
court. So these are the grounds for calling for records from the lower court
whenever the finding is illegal or improper and the proceeding is irregular.
During pendency of the revision petition the execution of sentence may be
suspended. Section 401 lays down the High Court’s power of revision and
Sessions Court’s similar power of revision is set out under section 399.
Further application to High Court on dismissal of petition in Sessions
Court is not allowed. But the other party may go for it if it is his first
revision petition.
Suppose it is decided by a Division bench and if it is equally divided then
will be referred to another judge under sec, 392 who will decide only in
respect of the point of difference.
The High court and Sessions Court are empowered to order for inquiry
under section 398. The court may direct the CJM to make an inquiry or
cause it to be done by JMFC and submit the same.
And inquiry may be orders on different grounds, like,
(i) Omission to take evidence
(ii) Discovery of fresh evidence
(iii) Mistake of law
 (iv) Illegality or irregularity in proceedings ( Section 465 – some can
be cured not all)
(v) Incorrectness of first finding.
High Courts power of revision [section 401(1)]
Empowers the high court to exercise powers suo motu or on applicatiom
by the party.
When revision petition is filed with erroneous belief that no appeal lies
then high court may consider that petition as appeal because the revisional
court has all the power of appellate court.
The Supreme Court held in State of Maharashtra vs Jagmohan Singh K.
Anand 2004 Cr. L J 4254(SC) that the revisional court is empowered to
exercise all powers of appellate court so as to satisfy as to correctness,
legality and propriety of any finding.
Under section 402 the HC is empowered to withdraw or transfer revision
cases where some party makes application to HC and others to court of
Session. The HC may transfer the case to himself or to sessions court.
Both the courts shall treat the application as if it was and application made
before itself.
Section 403 provides for court’s option to hear parties. A party cannot
insist upon being heard.
According to Section 404 when the records are called for by HC, the
Metro. Magistrate may submit with the record, a statement stating the
grounds of his decision and any facts which he thinks material.
Section 405 provides when a case is revised the HC or Court of Session it
shall certify its decision and send it o the lower court

4. Security for keeping the peace and good behaviour

(Section 106 to 124)
These are the provisions relating to preventive justice. The purpose of an
order for security is not to punish but to prevent future commission of
offences.
Under section 106 security is required from the convicted person for
keeping peace on conviction. Therefore the order may only be passed at
the time of passing sentence not thereafter. Here the convicted person may
be required by the Sessions Judge or a Judicial Magistrate First Class to
execute a bond with or without sureties. No appeal lies for order under this
section.
The sureties undertake the contractual liability of promise that the
convicted person shall keep the peace or to be of good behaviour. In case
of breach of peace by the convicted person the sureties shall pay the
stipulated amount.
The section is applicable to offences specified in the section like
disturbances of public tranquillity, offences likely to cause breach of peace
and offences of causing hurt to a person like assault, battery etc. and
offences against The Public Tranquillity
Under Section 107 security for keeping the peace in other cases.
Here also the intention is to prevent and not to punish. Here the order is
passed requiring a person to give security, who causes reasonable
apprehension of conduct likely to lead to a breach of peace or disturbance
of public tranquillity. Under this section two things are necessary,
(i) Information is given to the Executive Magistrate. Here the
Tahsildar has the Jurisdiction.
(ii) His satisfaction that there is sufficient ground or proceeding.
Here the Tahsildar will issue notice to show cause why the person should
not be required to execute bond. He must answer. He may lead evidence
also. Very rarely it happens. After 6 months automatically he will be
discharged. The tahsildar may act on a police report or even on a
complaint by a private person. Inquiry cannot be started unless the person
appears before the court. Some doubt is not sufficient to take action under
this section there must be present and imminent danger of breach of peace.
No police officer can arrest a person under this section without warrant.
Security for good behaviour under section 108 to 110 may be demanded
from the following persons to execute a bond with or without sureties.
(i) Persons disseminating seditious matter (Section 108)
Section 124A- sedition, 153A- promoting enmity between
classes, 153B- assertions prejudicial to national integration, 295
A – insulting the religious beliefs , 292 A - distributing, selling
exhibiting obscene matters
(ii) Suspected persons or criminals (Section 109)
A person is taking precautions to conceal his presence, and doing
so with a view to commit a cognizable offence.
(iii) Habitual offenders (Section 110)
A person habitually commits or attempts to commit or abets
commission of offences. Habit is to be proved by frequent
repetition. He may be a person,
(a) by habit a thief, robber , house breaker, forger etc.
(b) By habit receiver of stolen property knowing that it is stolen,
(c) Habitually protects and harbours thieves or aids in concealing
stolen property.
Section 108 and 109 empowers the Executive Magistrate to require to
show cause why he should not be ordered to execute bond for good
behaviour with or without sureties for a period not exceeding one year.
Under section 110 habit has to be proved. It gives a list of persons, house
breaker, thief, forger, by habit receiver of stolen properties, harbours
thieves, habitually commits kidnapping, abduction extortion, cheating etc.
bond with or without sureties for a period not exceeding 3 years. And rest
of the sections speak about the procedure.
Section 111. the Executive Magistrate acting under the above sections
shall make an order in writing.
Section 112 in respect of whom the order is made is present in the court, it
shall be read over to him and be explained if the person desires.
Section 113 – if not present he may be summoned.
Section 114 every summons and warrant issued shall be accompanied by a
copy of order made under section 111. Omission to send a copy is mere
irregularity. May be rectified under section 465 of Cr.P.C.
Section 115 if the magistrate sees sufficient cause he may dispense with
personal appearance of any person called upon to show cause .he may be
permitted to appear through pleader only under section 107.
Section 116. inquiry as to truth of information order made under section
111, explained under 112 and under section 113 Magistrate may make an
inquiry into the truth of the information. Evidence is necessary in
summons cases. Inquiry to be conducted

5. Maintenance
(i) Maintenance of wives, children and parents (Sec. 125
to128)
(ii) Maintenance of public order and tranquillity.(Sec.129 to
148)
(i) Maintenance of wives, children and parents
(Sec. 125 to128)
This is the natural and fundamental duty of every person to maintain his
wife, children and parents who are unable to maintain themselves.
The conditions required to claim maintenance under section 125 is the,
(i) Wife who is unable to maintain herself and she must be legally
wedded wife.
(ii) Child, may be legitimate or illegitimate minor child whether
married or not and unable to maintain itself.
 (iii) Major legitimate or illegitimate child, not being married daughter
or a child on account of physical or mental abnormality is unable
to maintain itself.
(iv) Father or mother unable to maintain themselves.
The words “unable to maintain” means unable to earn one’s livelihood.
The mother can claim with son only when her husband is not earning
because the primary liability to maintain wife is on her husband.
Now different decisions have come to say that,
‘Any person’ includes male or female. Earlier it was not so because the
man was the only breadwinner of the family. Now, married daughter if she
is having separate income apart from her husband’s income then she is
liable to maintain her parents who are unable to maintain themselves.
Sufficient means need not be visible means it refers to the earning capacity
of a man. If he is healthy and able bodied he is presumed to be possessed
with means to support his family even if he is not employed. This is where
it actually it differs from personal law. On filing application under sec. 24
of Hindu Marriage Act for maintenance by either spouse, the petitioner has
to prove that the spouse is having sufficient means.
The object of these provisions is to enable the security needed by the
discarded wives, helpless and deserted children, destitute parents
Text
(extremely poor parents) and to avoid vagrancy (person having no settled
home).
Irrespective of his income he is duty bound to maintain.
The landmark case Mohd. Ahmed Khan vs Shah Bano Begum will be
discussed which is popularly known as Shah Bano Case. In other sections
the procedural aspects are provided.

(ii) Maintenance of public order and tranquillity (Sec.129 to 148)

The topic deals with,
(A) Unlawful assemblies [section 129 to 132]
(B) Public nuisance [sec.133 to 143]
(C) Urgent cases of nuisance and apprehended danger.[sec.144]
(D) Disputes as to immovable property [sec.145 to 148]
The chapter X of CrPC provides the precautionary and preventive methods
for maintenance of public order and tranquillity. This is for the safety and
protection of the community by applying law and order as precautionary
measure to prevent commission of offences.

(A) Unlawful assemblies [section 129 to 132]

Sections 129 to 132 lays down the provisions relating to unlawful
assembly, and the power of Executive Magistrate, or Officer in charge of a
police station, or any police officer not below the rank of a sub-inspector
to command for dispersal of unlawful assembly and if not dispersed then
to use force with the assistance of any male person and if necessary may
arrest them and may be punished according to law. And even then if it is
not possible to disperse then the Executive Magistrate of the highest rank
may cause it to be done by the armed forces.

(B) Public nuisance [sec.133 to 143]

Section 133 lays down the cases of public nuisance and conditional order
may be passed for removal of such public nuisance.
Section 133. Conditional order for removal of nuisance.
Nuisance is ‘to hurt or annoy’. Public nuisance is an act or omission
causing injury, obstruction, danger or annoyance to the public at large. The
section 133 empowers the District Magistrate or a Sub- divisional
Magistrate or any other Executive Magistrate to make an order for
removal of nuisance.
The power may be exercised under this section either on receipt of a police
report or other report. But can be exercised only in respect of invasion of
public right.
The cases of public nuisance fall under six categories.
(a) unlawful obstruction or nuisance to any way, river or channel
lawfully used by the public; or to a public place
(b) keeping of any goods or merchandise which is injurious to the health
or physical comfort of the community
(c) that the construction of any building, or, the disposal of any
substance, as is likely to occasion conflagration or explosion
(d) that any building, tent or structure, or any tree is in such a condition
that it is likely to fall and thereby cause injury to persons living or
carrying on business in the neighbourhood or passing by.
(e) An unfenced tank, well or excavation adjacent to any public way or
place
(f) A dangerous animal requiring destruction, confinement or disposal.
The Executive Magistrate may make a conditional order that the person
causing such obstruction or nuisance, or carrying on such trade or
occupation, or keeping any such goods or merchandise, or owning,
possessing or controlling such building, tent, structure, substance, tank,
well or excavation, or owning or possessing such animal or tree, within a
time to be fixed in the order-
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as
may be directed, such trade or occupation, or to remove such goods or
merchandise, or to regulate the keeping thereof in such manner as may be
directed; or
(iii) to prevent or stop the construction of such building, or to alter the
disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to
remove or support such trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner
provided in the said order; or, if he objects so to do, to appear before
himself or some other Executive Magistrate subordinate to him at a time
and place to be fixed by the Order, and show cause, in the manner
hereinafter provided, why the order should not be made absolute.
Other sections lays down the procedure of notice, order, appearance etc.
power on disobedience of order, power to issue injunction etc.

(C) Urgent cases of nuisance and apprehended danger [sec.144]

Section 144. Power to issue order in urgent cases of nuisance of
apprehended danger.
(1) In cases where, in the opinion of a District Magistrate, a Sub-
divisional Magistrate or any other Executive Magistrate there is sufficient
ground for proceeding under this section and immediate prevention or
speedy remedy is desirable, such Magistrate may, by a written order direct
any person to abstain from a certain act or to take certain order with
respect to certain property in his possession or under his management, if
such Magistrate considers that such direction is likely to prevent, or tends
to prevent, obstruction, annoyance or injury to any person lawfully
employed, or danger to human life, health or safety, or a disturbance of the
public tranquillity, or a riot, of an affray.
(2) An order under this section may, in cases of emergency or in cases
where the circumstances do not admit of the serving in due time of a
notice upon the person against whom the order is directed, be passed ex
parte.
(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.
(4) order shall remain in force for two months from the making thereof:
Provided that, if the State Government danger to human life, health or
safety or for preventing a riot or any affray, it may, by considers it
necessary so to do for preventing notification, direct that an order made by
a Magistrate under this section shall remain in force for such further period
not exceeding six months from the date on which the order made by the
Magistrate would have, but for such order, expired, as it may specify in the
said notification.
(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.
(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).
(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 an 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.
There are many vase laws.
In one case law Prabhas Kumar Roy vs The Officer In-Charge Of Rani
Nagar Police Stationand others 1985 CrLJ 957(Cal) the immersion
procession of Goddess Durga was prohibited by order of the Magistrate
under section 144 as it passes in front of two mosques on Vijay Dashami
day. Calcutta High Court held that the Magistrate has no right to interfere
with fundamental right guaranteed, the right to religion under Art.25 and
26 of Constitution.
In one more case law State of Karnataka v Praveen Bhai Thogadia 2004
CrLJ 1825 (SC)
Where he was restrained by an order of Addl. District Magistrate, from
participating in a function organised in Mangalore on the ground that it is a
communally sensitive place and his inflammatory speech will effect
communal harmony.
144A power to prohibit carrying arms in procession or mass drill or mass
training with arms.
The District Magistrate may, whenever he considers it necessary so to do
for the preservation of public peace or public safety or for the maintenance
of public order, by public notice or by order, prohibit in any area within
the local limits of his jurisdiction, the carrying of arms in any procession
or the organising or holding of, or taking part in, any mass drill or mass
training with arms in any public place.
A public notice issued or an order made under this section may be directed
to a particular person or to persons belonging to any community, party or
organisation.
No public notice issued or an order made under this section shall remain in
force for more than three months from the date on which it is issued or
made.
The State Government may, if it considers necessary so to do for the
preservation of public peace or public safety or for the maintenance of
public order, by notification, direct that a public notice issued or order
made by the District Magistrate under this section shall remain in force for
such further period not exceeding six months from the date on which such
public notice or order was issued or made by the District Magistrate would
have, but for such direction, expired, as it may specify in the said
notification.
The State Government may, subject to such control and directions as it
may deem fit to impose, by general or special order, delegate its powers
under Sub-Section (4) to the District Magistrate.

(D) Disputes as to immovable property [sec.145 to 148]

The disputes as to immovable property such as land, water, crops and
other produce of land and rights of user in respect of immovable property
results in breach of peace, violence and bloodshed. Therefor section 145 to
148 empowers the Executive Magistrate to intervene at the inception stage
and compel the disputants to have recourse to legal remedies.
The object is to prevent breach of peace and is not punitive but preventive.
The mere fact that there is dispute between the parties concerning land is
not sufficient to invoke the section.
The essentials for the exercise of jurisdiction under the section is that the
Executive Magistrate should be satisfied by the police report or other
information that a dispute is likely to cause breach of peace concerning
land, water or boundaries.
He can make an order in writing requiring the parties to attend the court
and put in written statement of their respective claims. The dispute
between the private parties cannot be passed. Order under this section is
quasi-judicial because the order is based only upon possession and is
provisional in nature. The question of title to be decided by the civil court.
The examples of disputes come under this section are through case laws,
 (i) Dispute regarding standing crops and crops harvested
(ii) Dispute regarding standing trees on boundary lines
(iii) Trees on a bund
(iv) Right to ferry
(v) Right to fishery
(vi) Dispute as to channel rights etc.
(vii) Disputes concerning use of land and water
The other section lays down procedural aspects, power to attach the
subject of dispute, appointment of receiver, power to make an order for
local inquiry etc.