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Criminal Procedure Code, 1973

Unit-I

Qs. Object and Importance of criminal procedure code, 1973

Introduction:

In its wider sense criminal law consist of both the substantive criminal law and procedure
criminal law. Substantive criminal law defines offenses and prescribes punishment while the
procedure criminal law administers the substantive criminal law.

Thus, the code of criminal procedure is the main gislation of substantive for administration of
substantive criminal law in India. It was enacted in 1973 and came into force on 1st April 1974. It
provides the machinery for the investigation of crime, apprehension of suspected criminals,
collection of evidence, determination of guilt or innocence of the accused person and
determination of the guilty.

Additionally, It also deals with public nuisance, prevention of the offences and maintenance of
wife, child and parents.

Territorial extent, scope and applicability.

The criminal procedure code is applicable in the whole of India expect in the state of Jammu and
Kashmir is by article 370 of the constitution of India ( But article 370 was abolished and
criminal procedure code was applicable in the whole of India).

Provided that the provisions of the code, other than those relating to chapter VIII, X and X1
thereof , shall not apply.

a) To the state of Nagaland

b) To the tribal areas

However the concerned state government may, by notification apply any or all of these provision
in these areas.

Moreover the court of India has also rules that even in these areas, the authorities are to be
governed by the substance of these rules.

Objects And Importance:

The important objectives of the Code of Criminal Procedure are:-

1) To provide an opportunity to the accused person to get a fair trial in accordance with the
principles of natural justice.
2) To make an effort to prevent delay in investigation and trial to ensure fair justice.
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3) Criminal Procedure Code also, provide a detailed scheme for working of various
functionaries of the state to help and assist the administration of Criminal Justice in India.
4) To provide a machinery for the punishment of offenders against the substantive criminal law
as contained in the Indian Penal Code as well as in other acts.
5) The rules of procedure as provided by the law are meant to regulate the procedure in the
courts. The rules are imperative and not merely directory.
6) ‘it regulates the criminal trial and other penal offences.
7) It gives a fair chance to accuse to defined his case.
8) It says that criminal trial must be according to the laws of natural justice.
9) It simplifies the procedure for the Criminal trial.
10) It provides legal aid to the needy accused.
11) Speedy trials.
12) It investigate the effective administration of criminal justice and various provisions related to
the prevention of offences and removal of public nuisance.
13) It provides provisions related to maintenance of wife, children and parent s.
14) It explains basic legal terms and constitution of criminal courts in India.
15) It examine the role of the police and other authorities in the investigation.
16) The rights of accused person in a fair trial process or it provides the rights to the arrested
persons.
17) Examine the procedure in respect of investigation, trial and punishment.
18) It provides rights to the police officer to arrest without warrant.
19) Judicial magistrates are under the control of high courts of the respective states.
20) The rules of code are designed to guarantee constitutional due process to those individuals
charged with a crime.

Cases:

The State v/s Sohan Lal AIR 1960 Raj

Those matters which are not provided for by the code the courts shall follow any appropriate
procedures in the interest of justice. The rule is that any procedure not expressly prohibited by
the code may be followed.

Shivaji singh v/s Nagendre tiwary and others (2010)

It was held by that provisions of crpc are procedural in nature. It there is any violation of
provision of procedural law it does not means a denial of justice.

Qs. Definitions, Classification and Jurisdiction of Criminal Courts, Functionaries under

the Code.

Ans. Introduction
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Law can be divided into two kinds, namely, (1) Substantial law and, (2) Procedural
law.Substantial law defines and regulates the powers rights, duties, and liabilities, of the parties,
whereas, Procedural law deals with methods and procedures to enforce the Substantial law.
Criminal Procedure Code is a Procedural law.

Criminal Procedure Code cannot be separated from any of the penal laws of the country. If
Substantial penal law is a major means to protect the society, the Procedural criminal law a Chief
mechanism to achieve and enforce the Substantial law. Before coming into force of the Criminal
Procedure code, 1973, the criminal Procedure code of 1898 was in force. In this new code, many
reforms were made, whose paramount object was the separation of the judicial from the
Executive.

In the Criminal Procedure code, 1973, in all, there are 37 Chapters, 484 Sections, and two
Schedules. In this First Schedule, there is the classification of the offenses and in the Second
Schedules, several forms have been included.

CLASSES OF CRIMINAL COURTS UNDER CRIMINAL PROCEDURE CODE,1973:

As per the policy of separation between executive and judiciary, courts have been classified
mainly into two parts- Courts of Executive Magistrates and courts of Judicial Magistrate. These
courts have also different categories.

Section 6 of the Criminal Procedure Code, 1973 provides followings classes of courts-

1. Session courts
2. Courts of Judicial Magistrate first class
3. Courts of Judicial Magistrate Second class
4. Courts of Executive Magistrate

Similarly, courts of Metropolitan Magistrate have been established in Metropolitan areas.

In all, there are following categories of Criminal courts-

1. Session courts
2. Courts of Judicial Magistrate-
3. Courts of First-class Judicial magistrate, and
4. Courts of Second class judicial magistrate.
5. Courts of Chief Judicial Magistrate
6. Special Judicial Magistrate
7. Metropolitan magistrate courts
8. Special Metropolitan courts
9. Executive Magistrate courts-
10. District magistrate courts, and
11. Sub- Division magistrate courts
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12. Special Executive magistrate courts.

Session Courts

According to Section 9 of the code, a court of sessions shall be established for every session –
division. Court of sessions shall have presiding judge named as ‘Session Judge’ who shall be
appointed by the High Court. The high court shall appoint Additional session judge and Assistant
session judge.

Abdul Manam v/s State of West Bengal (A.I.R 1996 S.C.905) It has considered that session
court shall include Additional session court. Assistant session court shall be subordinate to the
session court and the session court shall frame rules regarding the distribution of works between
Assistant session courts.

Additional or Assistant sessions court shall try the urgent application in the absence of session
court and in the absence of Additional or assistant session court such application shall be tried by
a chief judicial magistrate. (Section 10).

Powers of Punishment-

According to section 28 of the code – Session judge or Additional session judge can pronounce
any sentence provided by law, but the death sentence given by them should necessarily be
confirmed by the high court.

Assistant session judge can pronounce any sentence authorized by law other than a death
sentence, imprisonment for life or imprisonment exceeding ten years (section 11).

These courts can commute the sentence, but considering the nature of the matter, the gravity of
crime and behavior of accused the mere fact that trial was conducted for a long time cannot be
the ground to commute a sentence.

Judicial Magistrate courts

According to Section 11, every district excluding the Metropolitian area shall have first class and
second class judicial magistrate as per the necessity. The state government in consultation with
the High court can establish one or more special courts to try special matters or class of special
matters.

The presiding officer in such courts shall be appointed by the High court and high court can
transfer the power of the first class or second class magistrate to any member of state judicial
services acting as a judge in a civil court.

Delhi Judicial service union, Tis Hazari court, Delhi v/s State of Gujrat (A.I.R 1991
S.C.2176)- Supreme court considered the post of the judicial officer as a post of honor and
therefore should behave according to the dignity of post.
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Powers of Punishment:

According to section 29 of the code First class judicial magistrate court may pass a sentence of
imprisonment not exceeding three years or of fine not exceeding Rs 5,000/- or both.

The second class magistrate court may pass a sentence of imprisonment not exceeding one year,
or of fine not exceeding one thousand rupees or both.

According to sec. 29(2) First class magistrate can impose Rs 5,000/- as fine and not more. The
amount cannot be more than Rs.five thousand in matters even of dishonoureof cheque. (Pankaj
Bhai Nagji Bhai Patel v/s State of Gujrat, A.I.R 2001, S.C 567).

Court of Chief Judicial Magistrate

Section 12 of the code provides for the establishment of one court of a chief judicial magistrate
in every district and of additional chief judicial magistrate court as per the requirement. The
High court shall appoint on this post any first class judicial magistrate.

Power of Punishment:

According to section 29(1), The court of the chief judicial magistrate may pass any sentence
authorized by law except a sentence of death or imprisonment for life (LI) for a term not
exceeding seven years.

Metropolitan Magistrate Courts

Section 16 of the code provides for the establishment of the Metropolitan Magistrate court as per
the requirement. The presiding officer of the Metropolitan magistrate court is appointed by the
High court.

Power of Punishment

The court of Metropolitan magistrate shall have the power of first-class magistrate court Section
29(4).

Court of Chief Metropolitan Magistrate

Section 17 of this code provides for the establishment of one Chief Metropolitan magistrate court
for every Metropolitan area. Similarly, there is also provision for the establishment of additional
chief Metropolitan magistrate court as per the requirements.

The High court can appoint any Metropolitan Magistrate to the post of Chief Metropolitan
magistrate or additional Chief Metropolitan magistrate.

Power of Punishment
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According to section 29(4), the court of Chief Metropolitan Magistrate shall have the power of
the court of Chief judicial magistrate.

Special Magistrate courts

Section 13 of the code provides for the establishment of courts of the special judicial magistrate
to try particular cases or a particular class of cases. Such courts are established at a particular
time for a period of one year by the high court at the request of central or state government.

Almost a similar system has been provided by section 18 for Metropolitan areas. A person
appointed under sec. 18 shall be called special Metropolitan magistrate.

Courts of Executive Magistrate

Section 20 of the code provides for the courts of Executive magistrate.

According to it, the state government could establish in every district and every Metropolitan
area, the courts of Executive magistrate as per the requirements. One of this Executive magistrate
shall be district magistrate.

Similarly, additional district magistrate in a district and sub divisional magistrate in every sub
division can be appointed.

Section 21 of the code provides for the establishment of a special Executive magistrate court.

The powers of Executive Magistrate and special Executive magistrate shall be those which are
provided by the state government.

Sub-Ordination

The subordination of these courts shall be as follows-

I. The chief judicial magistrate shall be in subordination to session judges.

II. Other judicial magistrates shall be subordinate to Chief judicial magistrate while having a
general contest of session judges (section 15 (1)).
III. Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate shall be
subordinate to the court of session.
IV. Another Metropolitan magistrate shall be subordinate to Chief Metropolitan magistrate
while being under the general control of courts of the session. (Section 19(1)).
V. All Executive magistrate other than sub-divisional magistrate shall be subordinate to a
sub-divisional magistrate while being under the general control of district magistrate.

Qs. Compel Appearance under Chapter VI of Code of Criminal Procedure,1973

Ans- Following are the modes to compel appearance of a person by issuing:

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1. Summons
2. Warrant of Arrest
3. Proclamation for Person Absconding

Summons section 60

Summons is a legal document issued from the office of court of Justice calling upon the person
to whom it is directed to attend before a Judge or officer of court.

How summons are formed? What are the essentials of a summon?

Every summon issued by the court under Section 61 of The Code of Criminal Procedure, 1973
shall be:

I. In writing
II. In duplicate form
III. Signed and sealed by the presiding officer of the court
IV. It should mention the time and place of the rule directed and shall bear the seal of the
court

By whom summons are served? Who can serve summons

Following persons can serve the summons as per Section 62 of The Code of Criminal Procedure,
1973:

I. Police Officer
II. By an officer, subject to such rules as the State Govt. may prescribe.
III. The court may allow summons to be served personally by delivering or tendering to him
one of the duplicates of the summons if any request is made by complainant or accused.

Every person on whom summons is served shall sign a receipt on the back of the other duplicate
as per required by the serving Officer.

What is the mode of service of summons

Following procedure shall be adopted:

A) By personal service

B) By Service on corporate bodies and societies under Section 63

C) By Service when person summoned cannot be found under Section 64

D) By Service on Government servant under Section 66

E) By Service of summons outside local limits under Section 67

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Warrant

Warrant and Warrant of Arrest

It is the second method of securing attendance of a person by means of a warrant of arrest. The
warrant is an order addressed to a certain person directing him to arrest the accused and to
produce him before the court. It is executed by a Magistrate on good and legal ground only.

Forms and duration of warrant of arrest

Section 70 of The Code gives the essentials of a warrant of arrest. It lays down that Court will
issue warrant of arrest which shall be in writing, signed by the presiding officer of such court,
and shall bear the seal of the court.

In order to be valid a warrant must fulfil the following requisites:

I. It must be in writing;
II. It must be signed by the presiding officer;
III. It must bear the name and designation of the police officer or other person who is to
execute it;
IV. It must give full particulars of the person to be arrested so as to identify him clearly;
V. It must specify the offences charged; and
VI. It must be scaled.

Duration of a warrant

Every warrant shall remain in force until it is cancelled by the court which issued it or until it is
executed. A warrant of arrest does not become invalid on the expiry of the date fixed for return
of the warrant.

Contents of the Warrant

Following are the important contents of the warrant :

I. Name of court
II. Name of police officer
III. Offence
IV. Place where offence has committed
V. Seal of the court
VI. Signed by the presiding officer
VII. Name and Address of the accused

Proclamation and attachment

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

Where a proclamation published is in respect of a person accused of certain specified heinous

offences and such person fails to appear at the specified place and time required by the
proclamation may pronounce him a ‘Proclaimed Offender’ under Section 82 of The Code of
Criminal Procedure,1973.

Offences for which the Court may declare an absconder to be a Proclaimed Offender

The Court may pronounce an absconder as a proclaimed offender if he is accused of any of the
following offences:

I. Murder; Culpable homicide not amounting to murder

II. Kidnapping or abducting in order to murder; Kidnapping or abducting in order to subject
person to grievous hurt, slavery etc.
III. Committing theft after making preparation for death, hurt or restraint in order to commit
the theft;
IV. Committing robbery or attempting to do so; Causing hurt in committing robbery;
Committing dacoity/ dacoity with murder; Committing robbery/dacoity with attempt to
cause death or grievous hurt;
V. Attempting to commit robbery/dacoity when armed with deadly weapon; Preparing to
commit or assembling to commit dacoity; Belonging to a gang of dacoits,
VI. Causing mischief by fire or explosive substance with intent to destroy house, etc.
VII. Committing house-trespass in order to commit offence punishable with death; Causing
grievous hurt/death while committing lurking house-trespass or house-breaking; Being
member of group that causes grievous hurt/death while committing lurking house-
trespass or house-breaking by night.

Publication of abscond

Procedure of Proclamation are as follows:

I. It shall be read publicly in conspicuous place of the town or village where such person
resides ordinarily;
II. It shall be affixed to some conspicuous part of the house or homestead where such person
ordinarily resides or to some conspicuous place of such town or village.
III. A copy shall also be affixed to some conspicuous part of the Court-house.
IV. Court can also direct if it thinks fit, a copy of Proclamation to be published in a daily
newspaper circulating in the place where that person resides ordinarily.
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Attachment of property

The Court issuing a proclamation may order the attachment of any property whether movable or
immovable, or both belonging to the proclaimed person in order to compel his appearance before
the Court under Section 83 of The Code of Criminal Procedure,1973. The Court will record it’s
reasons in writing.

The attachment order can be made simultaneously with a proclamation order on two occasions:

I. one, when the property is about to be disposed of the whole or any part,
II. two, the whole or part of the property is about to be removed from the local jurisdiction
of the Court.

Modes of attachment of property

According to Section 83 there are three modes for attachment of property:

If the property ordered to be attached is a debt or other movable property, the attachment may be
made—

I. by seizure, or
II. by the appointment of a receiver; or
III. by an order in writing prohibiting the delivery of such property to the proclaimed person
or to anyone on his behalf; or
IV. by all or any two of such methods, as the court thinks fit.

If the property ordered to be attached is immovable, the attachment shall, in the case of land
paying revenue to the State Government, be made through the Collector of the district in which
the land is situated, and in all other cases:

I. by taking possession; or
II. by the appointment of a receiver; or
III. by an order in writing prohibiting the payment of rent or delivery of property to the
proclaimed person or to anyone on his behalf, or by all or any two of such methods, as
the court thinks fit.

If the property to be attached consists of livestock or is of a perishable nature, the court may
order its immediate sale.

Qs. Arrest of Person with or without Warrant. After arrest Procedure and Rights of the
arrested person
Ans. Introduction

Arrest’ means deprivation of liberty of a person by legal authority. Chapter V of the Code of
Criminal Procedure, 1973 (Cr.P.C.) deals with the provisions related to Arrest. The Indian
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criminal laws do not define the term ‘Arrest’ anywhere. An arrest is an important tool in criminal
laws and its purpose is to present an offender before the court and prevent him from escaping.
The arrest also helps to prohibit the accused from committing any subsequent crime. Power to
arrest under Cr.P.C. is lawful. However, it does not mean that being a lawful act any person will
be arrested without any reasonable cause. There has to be a justifiable cause to arrest any person.

The procedural aspects of arrest are laid down in the Code of Criminal Procedure; under this, the
complete process is mentioned related to the arrest of a person who has committed any
offence. Chapter V of the Code of Criminal Procedure, 1973 deals with the arrest of a person
under section 41 to section 60.

Meaning of Term Arrest

We use the term ‘arrest’ quite often in our day to day business. Normally we see a person who
does or has done something against the law to be arrested. The term arrest can be defined as, “a
seizure or forcible restraint, an exercise of power to deprive a person of his or her liberty”. In the
criminal arrest of a person is an important tool for bringing an accused before the court and
prevent him from escaping.

Thus after an arrest, a person’s liberty is under full control of arrester. But every deprivation of
liberty or physical restraint should not be interpreted as the arrest. Only the deprivation of liberty
by a legal authority in a professionally competent and skilful manner amounts to arrest.

Who can Arrest:

Arrest can be made either with warrant of without warrant

A. Arrest with Warrant

I. In all warrant cases

II. In summon cases if necessary for bringing the accused in court.
III. In case of breach of bond for appearance
IV. Issued by magistrate under section 70 to 81 in case of cognizable or noncognizable
offences.
V. Reason to believe that accused has absconded or will not obey summons

When warrant can be issued

I. Upon receiving a complaint

II. Information provided by a person not a police officer.
III. Knowledge of the magistrate himself.

B. Arrest without warrant

Arrest without warrant can be affected by the following persons—

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I. By the Magistrate

II. By the police officer

III. By a private person or individual.

I. By the Magistrate

Section 44 of crpc 1973 deals with this. When any offence is committed in the presence of
magistrate (judicial/executive) within his local jurisdiction. He may himself or he may order to
police officer to arrest or he may order any civilian to effect the arrest.

II. By the police officer

Section 45 of crpc 1973 deals with this. This section provides that a police officer can arrest
without warrant or without the order of the magistrate in the following situation.

1. Arrest of a person who commits in the presence of a police officer a cognizable offence

2. Arrest of suspected or habitual offender

Section 44 (2) of the code provides that the police officer can also arrest any person without the
order or warrant from the magistrate-

a. Who belongs to the category of suspected offender under section 109 of the code.
b. Who belongs to the category of habitual offender.

3. Arrest on refusal to give name and residence address.

Section 42 (1) of the code provides that the police officer can arrest without the warrant or order
if-

a. Who has committed non-cognizable offence in presence of police officer.

b. Who gives a name and address to whom such officer has reason to believe to be false.
c. Who has been accused of committing a non-cognizable in the presence of police officer.

4. Arrest to prevent congnizable offence

Another situation of police officer to where he can arrest without the warrant of magistrate under
section 151 of the code. According to it a police officer knowing of design to commit a
cognizable offence may arrest without the warrant.

5. Arrest of a person who is in possession of stolen property

6. Arrest of a person who is declared as deserter from the armed forces.

7. Arrest of a person who obstruct a police officer in the discharge of his duties.
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8. Arrest of a person who has been proclaimed as an offender either under this code or by
any other local law.

III. By a private person or individual.

Section 43 of crpc 1 973 deals with this. The law permits even a private person to arrest the
accused if the accused commits any non-cognizable or cognizable offence in his presence. He
shall without any delay make over such person to a police officer.

Right of arrested person

1. Right to know the grounds of arrest – Section 50(1) –

According to this provision, every police officer or other person arresting any person without
warrant shall forthwith communicate to him full particulars of the offence for which he is
arrested or any other grounds for such arrest.

In case of Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of
grounds of arrest is a precious right of the arrested person. This allows him to move the proper
court for bail, make a writ petition for habeas corpus, or make appropriate arrangements for his
defence.

2. Right to be informed of the provision for bail – Section 50(2) –

Section 50(2), provides that where a police officer arrests any person other than a person accused
of a non-bailable offence without warrant, he shall inform the person arrested that he is entitled
to be released on bail and that he may arrange for sureties on his behalf.

3. Right to be taken to magistrate without delay –

Section 57 – of CrPC. It says that, No police officer shall detain in custody a person arrested
without warrant for a longer period than under all the circumstances of the case is reasonable,
and such period shall not, in the absence of a special order of a Magistrate under Section 167,
exceed twenty four hours exclusive of the time necessary for the journey from the place of arrest
to the Magistrate’s court.

In case of, Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and
its police to ensure that this constitutional and legal requirement of bringing an arrested person
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before a judicial magistrate within 24 hours should be met. This allows magistrates to keep a
check on the police investigation. It is essential that the magistrates should try to enforce this
requirement and when they find it disobeyed, they should come heavily upon the police.

Further, in case of, Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails
to produce an arrested person before a magistrate within 24 hours, he shall be held guilty of
wrongful detention.

4. Right to consult Legal Practitioner – Section 303-

Under section 303 it is mentioned that any person accused of offence before a Criminal Court or
against whom proceedings are instituted under this Code, may have right to be defended by a
pleader of his choice.

5. Right to free legal aid – Section 304 –

Section 304 provides that where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where appears to the Court that the accused has not sufficient
means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the
State.

In Suk Das vs Union Territory of Arunachal Pradesh 1986, SCC, SC has held that non-
compliance of this requirement or failure to inform the accused of this right would spoil the trial
entailing setting aside of the conviction and sentence. The right of an accused to consult his
lawyer begins from the moment of his arrest. The consultation with the lawyer may be within the
presence of a police officer, but not within the police officer’s hearing. SC also held that it is the
duty on all courts and magistrates to inform the indegent person about his right to get free legal
aid.

6. Right to be informed about the right to inform of his arrest to his relative or friend –
Section 50 A (1) provides that once the arrested person is brought to the police station, the police
officer must inform a relative or a friend, or any other person of the arrested person’s choice,
about his arrest. He must also tell the place where the arrested person has been kept. Further, as
per Section 50 A (3) he must note down the name and address of the person who was informed
about the arrest. To make sure that there is no violation of this right, section 50 A (4) makes it a
duty of the magistrate to verify that the provisions of this section were complied with. This
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allows the arrested person and his well wishers to take appropriate legal steps to secure his
release.

7. Right to be examined by a medical practitioner –

While Section 53 allows a police officer to get the accused examined by a registered medical
practitioner, Section 54(1) gives the accused a right to get himself examined by a registered
medical practitioner. According to Section 54 (1), when a person who is arrested, whether on a
charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time
during, the period of his detention in custody that the examination of his body will afford
evidence which will disprove the commission by him of any offence or which Magistrate shall, if
requested by the arrested person so to do direct the examination of’ the body of such person by a
registered medical practitioner unless the Magistrate considers that the request is made for the
purpose of vexation or delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused
person must be informed by the magistrate about his right to be medically examined in terms of
Section 54(1).
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UNIT – II

Qs. Information to Police and the Power of Police to Investigate Section (Secs. 154, 155,
161-162,164,165, 173, 175 and 176).

Ans. INTRODCTION

First information report and investigation plays an important role in administering of criminal
justice. It is expected that it should be recorded with utmost care and caution. It should be
recorded without any delay so that manipulation of facts does not arise. FIR & Investigation
determines that a prima facie case exist against the accused or not. Sections 154 of Cr.P.C.-1973
described in detail about FIR, but this word is not as such written in this section.

Section 154 says-

As soon as the Officer-in-charge receives information of commission of a cognizable offence

entry to this effect shall & immediately be made in the Register maintained for this purpose
without delay.

If any information is given orally, it should be recorded and then to read and obtained the
signature of the person giving information.

ESSENTIAL ELEMENTS OF F.I.R.

Although the definition of FIR is no given in the Cr.P.C. however it may be as follows:-

I. It is information which is given at the first stage to the Police Officer In- charge of the
Police station.
II. Information must relate to a cognizable offence.
III. It is on the basis of this information that investigation into the offence commences.
IV. The FIR could be in any type i.e. written or oral. It can also be given on telephone. Sunil
v/s State of MP, 1997.

It is essential that a detailed explanation of the happening should be given in FIR. In a case of
Navratan Mahanto v/s State of Bihar-1980, the court observed that the prosecution cannot be
dismissed merely on the basis that FIR does not contains the complete explanation of happening
as only gist of the happening in factual position needs to be mentioned.

In a case of State of A.P v/s P. Ramulu, 1993, the court observed that FIR cannot be refused to
be recorded on the ground that the offence was committed not within the jurisdiction.

There should be no delay in registering FIR (Gnash Bhawan Pated v/s State of Maharashtra,
1979.).

CIRCUMSTANCES WHEN MAGISTRATE ORDERS FOR INVESTIGATION Sec. 155

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Investigation begins with the FIR. If the FIR is regarding any non-cognizable offence then such
information shall be recorded in the register maintained for this purpose and the person who is
giving the information will be referred to the Magistrate. In other words investigation cannot be
done without the order of the Magistrate.

Section 155 of the Code of criminal procedure provides that:-

1. No Police Officer shall investigate a Non-cognizable case without the order of the
Magistrate having power to try such case or commit the case for trial.

2. Any Police officer receiving such order may exercise the same powers in respect of the
investigation (except the power to arrest without warrant) as an Officer–in-charge of a police
station may exercise in cognizable case.

3. Where a case relates to two or more offences of which at least one is cognizable, the same
shall be deemed to be a cognizable case, notwithstanding that the other offences are non-
cognizable.

4. An investigation in a non-cognizable offence made under the order of Magistrate is treated

as in investigation under chapter-XII and the report will be submitted to the Magistrate under
section 173(2).

In cases of cognizable Offences, there is no need of the orders of the Magistrate to begin the
investigation. However it has also been made clear by the Supreme Court a new provision
under the code under section 155(4) which incorporates a view of Supreme Court that where a
case relates to two or more offences of which at least one is cognizable the case shall be deemed
to be a cognizable case, in-spite of the fact that other offences are non-cognizable, where there
are both cognizable and non-cognizable offences mixed together the Police Officer can
investigate even if there is single cognizable offence.

Examination of witnesse section-161

The most crucial part of the investigation lies in the examination of witnesses. The statement
made by them can hold a person guilty. The police officer who is investigating the case has been
empowered to conduct witness examination. The witnesses are bound to answer the questions
which are related to the case truly.

Section 161 lays down the procedure for the examination of witnesses by the police. The
investigating officer shall examine the persons who are acquainted with the facts of the case. It is
the duty of the investigating officer to record the statements of the eyewitnesses without any
delay. After examining the witnesses, it is required by the police officer to write down the
statement made by the witness.
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There should be no delay on the part of the police officer investigating the case in examining the
witnesses. In the event of a delay of the examination of the witness, the onus lies on the
investigating officer for explaining the reasons for the delay. In a case before the Hon’ble
Supreme Court, there was an unexplained delay for ten days, and there were some contradictions
as well, the Supreme Court was of the opinion that evidence became suspect owing to the delay.

Whereas, when the delay has been properly explained, it does not have any adverse impact upon
the probative value of a particular witness.

The police officer while examining the witnesses is not bound to reduce the statements made into
writing. It is preferred that the statements should be written or the substance of the whole
examination should be written down at least. The recorded statements are required to be noted
down in the case diary maintained under Section 172 of the Code.

Statements to the police not to be signed section 162

The statements which are made by the witnesses during the examination needs to be signed by
the witness who is making such a statement. The statements so made shall not be used for any
other purpose.

The law requires that whatever a person has to state, it must be stated before the court and during
the trial. Thus, the purpose of Section 161 Statement is not to establish witnesses against the
accused but to assist the police in the investigation.

In Baleshwar Rai v. State of Bihar the court held that to apply the provisions of Section 162,
the Statement must be made “during the investigation” and not “during the period of
investigation”. For instance, A was murdered by B and police while investigating asked A’s
friend C if A had any enemies who can kill him.

Recording of the statement under Section 164 CrPC ( confession)

Section 164 of the Code envisages the provisions for the recording of statements in the presence
of a Magistrate. The confession has to be recorded in the course of the investigation. No
confession shall be recorded by a police officer.

Warning to the accused or the person making a confession

Before recording the confession, it has to be explained to the person making the confession that
he is not bound to make a confession. And, if he does so, it can be used as evidence against him
as well. The statement made by a person should be recorded with his consent and voluntarily. It
is a statutory obligation which is imposed by the Code on the Magistrate to make the accused
aware of his rights.

Also, a person cannot be kept in custody if before recording the statement; he states that he does
not want to do so.
 19

Signature of the accused on the confession

The confession which has been made by the accused should be duly signed by him. If the
confession has not been signed, it is not admissible in evidence. It is absolutely mandatory to
obtain the signature of the accused. A confession under this section should be made either in the
course of the investigation or before the commencement of inquiry or trial.

In Sasi v. State of Kerala, it was held by the Supreme Court that it is not necessary to make a
confession before an authorized person only. The Supreme Court had said, “Any person to whom
a confession has been made can give evidence of it in the court regarding the confession. Also, if
it is made to such a person, the court has to look after this. The court needs to see that the person
before whom such a confession is being made can be believed or not.

Search to be conducted by the police officer section 165

A police officer or the investigating officer has been empowered under section 165 of the Code
to search the premises whenever he feels necessary or has reasonable grounds to believe the
same. The investigating officer or the officer-in-charge conducts the search when he believes that
there are sufficient or reasonable grounds to pursue the same. The search is conducted when
there is an absolute necessity for the same.

Section 93(1) of the Code of Criminal Procedure provides for the grounds under which a warrant
for search shall be issued. Moreover, the search has to recorded in the diary otherwise it becomes
illegal.

Procedure for search

The investigating officer would go to the locality where the offence was committed and get two
people called the ‘Panchas’. The evidence given by the Panchas is of paramount importance.
They sign a document called the Panchnama which contains the evidence collected out of the
search. It is signed by them which validates the search and the procedure adopted during the
investigation.

What does Panchnama mean?

Panchnama has not been defined anywhere in the law. However, it is a document which holds
great value in criminal cases. The Panchnama states things which were found at a particular
place and at a particular time. Not only the Criminal Courts but also the Civil Courts use it.

After this, a memorandum of the search is prepared by the investigating officer or the officer-in-
charge. It needs to be submitted to the Magistrate.

A search of a closed place and also of a person

 20

The police officer-in-charge or the investigating officer who has a valid warrant is to be allowed
to conduct the search of a place. Force may be used if he is not allowed to do so. The search is
not just only of the premises but also of a person. If it is a female, a female officer shall search
her with utmost decency.

The search of the closed place or of a person has to be made before two respectable persons of
the society. These respectable persons are known as the ‘Panchas’. They need to sign the
document validating the search. However, the Panchas need not necessarily be called as
witnesses.

Report to be filed before the Magistrate after completion of the investigation section 173

Section 173 of the Code requires the investigating officer to file a report before the Magistrate
after the collection of evidence and examination of witnesses are done with. This section requires
that each and every investigation shall be completed without any unnecessary delay.

Section 173(2) requires the

I. the names of the parties;

II. the nature of the information;
III. the names of the persons who appear to be acquainted with the circumstances of the case;
IV. whether any offence appears to have been committed and, if so, by whom;
V. whether the accused has been arrested;
VI. whether he has been released on his bond, and if so, whether with or without sureties;
VII. whether he has been forwarded in custody under section 170 to be submitted in the
closure report before the Magistrate.

The report under section 173 is called as the “Completion Report”. Also known as the “charge
sheet”. Sending such a report is extremely necessary and mandatory. In the report, the officer
also needs to communicate the action which shall be taken by him. The final report will be of
two kinds:

(1) Closure Report

(2) Charge Sheet/Final Report

Closure Report

Closure report is the one in which it is stated that there is not enough evidence to prove that the
offence has been committed by the accused. Once the closure report is filed before the
Magistrate, he may accept and the report the case as closed, direct a further investigation into the
case, issue a notice to the first informant as he is the only person who can challenge the report or
he may directly reject the closure and take cognizance of the case. The report under Section
169 of the Code can be referred to as the Closure Report.
 21

Charge Sheet

A charge sheet is a final report prepared by the investigating officer in furtherance of proving the
accusation of the crime committed. It enumerates upon the elements of the offence and also the
details of the complete investigation of the Police authorities and the charges against the accused.
It envisages the facts in brief, a copy of the First Information Report, all the statements recorded
under section 161 and section 164, list of the witnesses, list of seizure and other pieces of
evidence collected by the investigating agency during the investigation.

It is on the basis of the charge sheet that the Magistrate frames the charges against the accused.

A charge sheet is different from the First Information Report (FIR). A charge sheet describes
how a crime has been committed.

Section 175 of CRPC "Power to summon person

A police officer proceeding under section 174 may, by order in writing, summon two or more
persons as aforesaid for the purpose of the said investigation, and any other person who appears
to be acquainted with the facts of the case and every person so summoned shall be bound to
attend and to answer truly all questions other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or forfeiture.
If the facts do not disclose a cognizable offence to which section 170 applies, such persons shall
not be required by the police officer to attend a Magistrate's Court.

Section 176 of CRPC "Inquiry by Magistrate into cause of death

When any person dies while in the custody of the police, the nearest Magistrate empowered to
hold inquests shall, and in any other case mentioned in sub-section (1) of section 174, any
Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in
addition to, the investigation held by the police officer; and if he does so, he shall have all the
powers in conducting it which he would have in holding an inquiry into an offence.

(2) The Magistrate holding such an inquiry shall record the evidence taken by him in connection
therewith in any manner hereinafter prescribed according to the circumstances of the case.

(3) Whenever such Magistrate considers it expedient to make an examination of the dead body of
any person who has been already interred, in order to discover the cause of his death, the
Magistrate may cause the body to be disinterested and examined.

(4) Where an inquiry is to be held under this section, the Magistrate shall, wherever practicable,
inform the relatives of the deceased whose names and addresses are known, and shall allow them
to remain present at the inquiry.

Qs. Complaint to Magistrate

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Ans. Section 200 to 203 of chapter XV criminal procedure complaints to magistration. This
section lays down the procedure regulating complaint made by private persons. If a magistrate
takes cognizance of an offence on a complaint, he must first of all examine the complaints and
witness, if any, on each, and must then reduce the substance of such examination into writing.
This must also be signed by the complainant, the witness, and also by the magistrate.

If there is a crime, there are two ways to complaint by the agreed party. First is to report to the
police and second is to complaint to the magistrate.

Meaning:

In order to understand the provision of this section the meaning of complaint should be cleared.
Under section 2(d) of the code of criminal procedure defines the term complaint:

As the any allegation made orally or in writing to a magistrate, with a view to this taking action.
Under this code, that some person, whether known or unknown, has committed an offence, but
doesn’t include a police report.

The procedure to be adopted when a complaint is lodged, as laid down in sections 200 to 203 are
under as:

Complaint to Magistrate:

Section 200: Examination of complaint:

A magistrate taking cognizance of an offence on complaint shall examine upon each the
complainant and the witnesses present if any and the substance of such examination shall be
reduced to writing and shall be signed by the complainant and the witnesses, and also by the
magistrate.

Provided that when the complainant is made in writing, the magistret need not examine the
complainant and the witnesses-

a) if a public servant acting upon or purporting to act in the discharge of his official duties
or a court has made the complaint, or;
b) if the magistrate makes over the case for enquiry or trial to another magistrate under
section 192:
Provided further that if the magistrate makes over the case to another magistrate under
section 192 after examining the complainant and the witnesses,the latter magistrate need
not re-examine them.

Section 201: Procedure by magistrate not competent to take cognizance of the case.

If the complaint id made to the magistrate who is not competent to take cognizance of the
offence, he shall-
 23

a) if the complaint is in writing, return it for presentation to the proper court with an
endorsement to that effect;
b) if the complaint is not in writing, direct the complainant to the proper court.

Section 202: Postponement of issue of process-

1) Any magistrate, on receipt of a complaint of an offence of which he is authorized to take

cognizance or which has been made over to him under the section 192 may if he thinks
fir, postpone the issue of process against the accused, and either enquire into the case
himself or direct an investigation to be made by a police officer or by such other person
of deciding whether or not there is sufficient ground for proceeding:

Provided that no such direction for investigation shall be made-

a) Where it appears to the magistrate from complaint that the offence is tribal exclusively by
the session court.
b) Where the complaint has not been made by the court, unless the complainant & witnesses
present (if any) have been examined on each under section 200

2) In an inquiry under sub-section (1) , the magistrate may if he thinks fit, take evidence of
witnesses on each:

Provided that if it appears to the magistrate that the offence complainant of is triable
exclusively by session court

3) If an investigation under sub-section (1), is made by a person not being a police officer,
he shall have for that investigation all the powers conferred by this code on an officer in
charge of a police station except the power to arrest without warrant.

Section 203: Dismissal of complaint:

If after considering the statement on each of the complainant and of the witnesses and the result
of the inquiry or investigation, the magistrate is of the opinion that there is no sufficient ground
for proceedings he shall dismiss the complaint, and in every such case he shall briefly record his
reasons for so doing.

Qs. Form of Charges and Joinder of Charges.

Ans.

INTRODUCTION:-
Provisions relating to charge are aimed at giving complete information to the accused about the
offence of which he is being charged. It gives the accurate precise information about the
 24

accusations made against him. Every charge shall state the offence with which the accused is
charged. The charge shall be written in the language of the Court. The language of the charge
should be specific and clear.
WHAT IS CHARGE
Charge is such a written statement of the information of offence against the accused person
which contains the grounds of charge along-with time, place, person and things in relation to
which offence is committed. The charge is a precise formulation of the specific accusation of an
offence against the accused person. Accused prepares his defences on the basis of it.
Definition
Sec.2 (b) of Cr.P.C.-1973 provides the definition of charge but it is neither definition as per
dictionary meaning nor it is directing any meaning. It only says that, “Charge induces any head
of charge when the charge contains more heads than one.”
Components of Charge:- Sec.211
I. Every charge shall state the offence with which the accused is charged.
II. If the law which creates the offence gives it any specific name, the same may be
described by that name, like theft, robbery, dacoity or murder etc.
III. If law does not give any specific name so much of the definition of the offence must be
stated for giving the notice to accused.
IV. The Law and section of the law against which the offence is committed shall be
mentioned in the charge.
V. The fact that the charge is made is equivalent to a statement that every legal condition
required by law to constitute the offence is fulfilled.
VI. The charge shall be written in the language of the court. Case of Krishan v/s State of
Kerla-1958.The court said that charge should be in Court’s language.
VII. The previous conviction if any of the accused must be stated in the charge i.e. place, date
and the fact of the offence.
Particulars as to time place and person 212
1. The time of commission of the offence be given in the charge.
2. The place of commission of the offence may also be recorded in charge.
3. The person against whom or thing in respect of which it was committed.
4. The manner of committing offence must be stated in the charge u/s 213.
5. The words must be of sense of law under which offence is punishable
u/s214.
Effect of Errors 215
Section 215 of the code says that there should be no error in stating either the offence or the
particulars required to be stated in the charge, there should also be no omission to state the
 25

offence or those particulars which at any stage of the case as material unless the accused was in
fact misled by such error or omission which may results the failure of justice. Then such charge
shall be considered faulty and the trial on the basis of such charge shall also be faulty.
Court May alter the charge 216
Under sec.216, any court may alter or add to any charge at any time before the judgment is
pronounced.
Recall of Witnesses when charge altered 217
under section 217, whenever the charge is altered or added to by the Court after the
commencement of the trial the prosecutor and the accused shall be allowed to recall or re-
summoned and examine the alteration and addition any witness who may have been examined.

Joinder of charges

the provisions of sec. 218 to 224 would indicate that separate charge and separate trial for such
distinct offence is the normal rule and joint trial is an exception when the accused have
committed separate offence.

Separate charges for distinct offence 218

For every distinct offence there must be separate charge and separate trial for each such charge.
But if the case falls written any of the exceptions then joinder of charge is permissible. Joinder of
charge avoids multiplicity of trials.

Three offences of the same kind within year may be charged together

under section 219 of Cr. P. C. when a person is accused of more offences than one of the same
kind committed within the space of twelve months from the first to the last of such offences, he
may be charged with and tried at one trial for any number of them not exceeding three.
Provisions of section are only enabling provisions, it applies where offences are of the same kind
but it does not apply where offences are not of the same kind such as criminal breach of trust and
falsification of accounts. Rahmat v/s State of U. P.-1980.

Offence in course of same transactions

If in one series of Acts so connected together as to form the same transaction more offences than
one are committed by the same person, he may be charged with and tried at one trial for every
such offence as provided under section 220 of the Cr. P.C. Case Krishna Murthy v/s Abdu
Subhan- 1965. Case of Kanshiram v/s Jhunjhunwala-1935, with the same it was necessary to
ascertain whether they are so connected together as to constitute a whole which can properly be
described as a transaction.

Where it is doubtful what offence has been committed

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Sec.221 provides for the cases where it is doubtful what offence has been committed. It applies
to the cases in which the facts are not doubtful but the application of law to the facts is doubtful.
This sec. applies where the doubt is about the nature of the offence and not about the facts as
held in case Jatinder Kumar v/s State of Delhi-1992.

When the offence proved included in offence charged

Sec.222 considered the conviction of minor offence included in the offence charged in either of
two cases, where the offence charged consists of several particulars and combination is proved
but the remaining particulars are not proved. And where the facts are proved which reduce the
offence charged to a minor offence as held in case of, Emperor v/s Abdul Wahab-1945.

What persons may be charged jointly

Under sec.223 joint trail of several persons is permissible and applies only to trials and not to
inquires. A joint trial of several persons under this section is not vitiated merely by the facts that
at the end of the trial the facts found happen to be different from those on the basis of which the
charges were originally framed as held in case of Trilokchand v/s Rex-1949.

Qs. General Provision as to Inquiry and Trials (Secs. 300-304, 309-311, 313, 318 and
320).

Ans. Introduction

The principle is that a person once convicted or acquired can not be tried again undersection 300.
Section 300 is based on the maxim “nemo debet lis vexari prouna cousa”. Which means no man
should be vexed twice or for the same cause. It also base on the maxim “double jeopardy” which
means no one can be convicted twice for same offence.

Condition for the application of section 300

Following are condtions for the application of section 300-

a. A person has once been actually tried for a competent court for the same offence, charged
in the second trial
b. The person must have been charged with the same offence and with the same facts.
c. He has been convicted or acquitted in the earlier time.
d. The conviction or acquittal is enforce and it has not been set aside by superior court.

Exception

a. With the consent of the state government.

b. Consequences caused by the first offence.
c. The former cojrt was not competent.
 27

d. Abetment section 107 and 108 of IPC 1860

Illustrations

(a) A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the
acquittal remains in force, be charged with theft as a servant, or upon the same facts, with theft
simply, or with criminal breach of trust.

(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may
be tried again for culpable homicide.

(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may
not afterwards be tried on the same facts for the murder of B.

Appearance by the Public Prosecute section 301

The public prosecute or Assistant public prosecute in the charge of case may appear and plead
without any written authority before any court in which that case is under inquiry, trial and
appeal.

Permission to conduct prosecution section 302

Any magistrate inquiring into and trying a case may permit the prosecution to be conducted other
than the police officer below the rank of inspector but no person other than the advocate general
or government advocate or a public prosecutor or assistant public prosecutor shall be entitled to
do so without such permission.

Right of person against whom proceedings are instituted to be defended section 303

Any person accused of an offence before a Criminal Court, or against whom proceedings are
instituted under this Code, may of right be defended by a pleader of his choice.

Legal aid to accused at State expense in certain cases section 304

Where, in a trial before the Court of Session, the accused is not represented by a pleader, and
where it appears to the Court that the accused has not sufficient means to engage a pleader, the
Court shall assign a pleader for his defence at the expense of the State.
The High Court may, with the previous approval of the State Government make rule providing
for—

(a) The mode of selecting pleaders for defence.

(b) The facilities to be allowed to such pleaders by the Courts.

(c) The fee payable to such pleaders by the Government, and generally, for carrying out the
purposes.
 28

Power to postpone or adjourned the proceeding section 309

Section 309 says that in every inquiry or trial the proceedings shall be held that as rapid as
possible unless the court finds that the adjournment of the same is necessary and the reasons to
be recorded. If the court after taking cognizance of an offence and commencement of trial, find it
necessary or advisable to postpone the court can do the same.

Local inspection section 310

Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due
notice to the parties, visit and inspect any place in which an offence is alleged to have been
committed, or any other place which it is in his opinion necessary to view for the purpose of
properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary
delay record a memorandum of any relevant facts observed at such inspection.
Such memorandum shall form part of the record of the case and if the prosecutor, complainant or
accused or any other party to the case, so desires, a copy of the memorandum shall be furnished
to him free of cost.

Power to summon material witness, or examine person present Section-311..- Any Court
may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person
as a witness, or examine any person in attendance, though not summoned as a witness, or recall
and re-examine any person already examined; and the Court shall summon and examine or recall
and re-examine any such person if his evidence appears to it to be essential to the just decision of
the case.

Power to examine the accused section 314

In every inquiry or trial, for the purpose of enabling the accused personally to explain any
circumstances appearing in the evidence against him, the Court—

I. may at any stage, without previously warning the accused put such questions to him as
the Court considers necessary;
II. shall after the witnesses for the prosecution have been examined and before he is called
on for his defence question him generally on the case.

But No oath shall be administered to the accused when he is examine and the accused shall not
render himself liable to punishment by refusing to answer such question, or by giving false
answers to them.

The answers given by the accused may be taken into consideration in such inquiry or trial, and
put in evidence for or against him in any other inquiry into, or trial for, any other offence which
such answers may tend to show he had committed.

Procedure where accused does not understand proceedings section 318

 29

If the accused, though not of unsound mind, cannot be made to understand the proceedings, the
Court may proceed with the inquiry or trial; and in the case of a Court other than a High Court if
such proceedings result in a conviction, the proceedings shall be forwarded to the High Court
with a report of the circumstances of the case, and the High Court shall pass thereon such order
as it thinks fits.

Compounding of offence 320

Legal provisions regarding compounding of offences under section 320 of the Code of Criminal
Procedure, 1973. A composition is an arrangement whereby there is settlement of the differences
between the injured party and the person against whom the complaint is made. It is not necessary
that the composition should be in writing. It may be oral.

If both the parties agree that there has been compromise, then the Court has to dispose of the
case in terms of that compromise and the petitioner is to be acquitted. If, on the other hand,
parties differ, then the Court has to call upon them to lead evidence and then record a finding on
such evidence.
 30

Unit-III

Qs. Criminal Trial, Trial before Court of Session section 225 to 237, Trial of Warrant
cases by Magistrate Section 238-247, Trial of Summon cases (Section 251-259),
Summary Trials (Sections 260-265).

Trial before Court of Session section 225 to 237

Introduction

The procedure of trial of offences before court has been described in section 225 to sec. 237 of
the Criminal Procedure Code-1973. Here it is important that any matter does not come directly
for trial before the Court of Sessions. Such matter is committed for trial to Court of
Session. Any matter is committed to Court of Session when it has the exclusive jurisdiction to
try such offence.

Conduction of trial section 225

In every trial before a Court of Session, the prosecution shall be conducted by a Public
Prosecutor as laid down in sec.225 of the code.

Opening the case for prosecution section 226

When the accused appears or brought by before the Court in pursuance of a commitment of the
case under section 209 the prosecutor shall open his case by describing the charge brought
against the accused and stating by what evidence he purposes to prove the guilt of the accused
under sec. 226 of Cr. P. C. case of Hukam Singh v/s State of Rajasthan-2001.

Discharge 227

If upon the consideration of the record of the case and the documents submitted therewith and
after hearing the submission of the accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for proceeding against the accused he shall discharge
the accused and record his reasons for doing so. As held in case of T.V.Sharma v/s R.Meeriah-
1980. It is called charge arguments; court has to consider the complete case carefully before
giving order to discharge State of J&K v/s Romeshchandra-1997. These are the provisions of
sec.227.

Framing of charge section 228

While framing charges court shall only see that there is a prima facie case against accused or not.
At this juncture there is no need for praising witnesses as held in case of State of M.P. v/s S.B.
Johri-2000. Where the judge frames any charge, the charge shall be read and explained to the
accused and accused shall be asked whether he pleads guilty of the offence charged or claims to
be tried as provided in section 228 of Cr. P.C.
 31

Conviction on Plea of Guilty section 229

If the accused pleads guilty the judge shall record the plea and may in his discretion convict him
thereon. The plea of guilty only amounts to an admission that the accused committed the acts
alleged against him. It was held in case of Tyron Nazarath v/s State of Maharashtra-1989.
This is more so in case persons tried jointly when some plead guilty and the others claim to be
tried, case of Bantra Kunjana-1960. These are provisions available in sec. 229 of Cr.P.C.

Date for Prosecution Evidence section 230

If the accused refuses to plead or does not plead or claims to be tried or is not convicted under
sec.229, the Judge shall fix a date for the examination of witnesses and may on the application of
the prosecution issue any process for compelling the attendance of any witness or the production
of any document or other thing. Case Mukipad Mandal v/s Abdul Jabbar-1973, it is the duty
of court to take all necessary steps to compel the attendance of witnesses. The accused cannot be
acquitted on the ground of failure of the witnesses to appear before the court, under sec. 230.

Evidence for Prosecution section 231

On the date fixed, the judge shall proceed to take all such evidence as may be produced in
support of the prosecution sec.231. when any witness appears before the court there shall be no
delay as possible in his examination but if any delay happens in the examination of any witness
the merely on this ground the prosecution matter cannot be suspended case of Bunty urf Guddu
v/s State of M.P-2004.

Acquittal section 232

If after taking the evidence for the prosecution examining the accused and hearing the
prosecution and he defence on the point the Judge considers that there is no evidence that the
accused committed the offence the judge shall record an order of acquittal under sec. 232. The
accused can either be convicted or acquittal but not discharged.

Entering Upon Defence section 233

Where th accused is not acquitted under sec.232 he shall be called upon to enter on his defence
and adduce any evidence he may have in support thereof. It the accused puts in any written
statement the judge shall file it with the record. If the accuse applies for the issue of any process
for compelling the attendance of any witness or production of any document or thing the judge
shall issue such person unless he considers such application for the purpose of vexation or delay
or for defeating the ends of justice. Case State of MP v/s Badri Yadav-2006. These are the
provisions in sec.233.

Arguments section 234

 32

When the examination of witnesses for the defence is complete the prosecutor shall sum up his
case and accused shall be entitled to reply. During his process where any point of law is raised
by the accused the prosecutions mazy with the permission of judge make his submissions with
regard to such point of law under sec. 234. It is called arguments.

Judgment section 235

After hearing both the parties the judge shall give a judgment in the case under sec.235.Case:
Alluddin Mian Sharif Mian v/s State of Bihar-1989.

Previous Conviction section 236

If the accused is charge of previous conviction and the accused does not admit that then judge
may take evidence in respect of the alleged previous conviction and record a finding thereon
under sec. 236.

Procedure in cases instituted under Sec. 199 section 237

Sec.237 of the code provides the procedure for trial of such matters which have been instituted
under sec.199 (2). Sec.199 (2) provides for prosecution of defamation matters. If any matters of
defamation is alleged to have been committed against the President of India, Vice-President,
Governor of State, Administrator of UT, Minister of Union or State or Any other Public servant.
If during trial court finds scope of acquittal he may pass such orders.

Trial of Warrant cases by Magistrate Section 238-247

Criminal cases can be divided into two types: Summons Case and Warrant Case. A summons
case relates to an offence not being in a warrant case. Warrant cases are those that include
offences punishable with death penalty, imprisonment for life or imprisonment exceeding more
than two years. The criteria that differ a summons case from a warrant case is determined by the
duration of punishment in any offence.

The case of Public Prosecutor V. Hindustan Motors, Andhra Pradesh,1970, is a summons case as
the convicted is sentenced to pay a fine of Rs. 50. The issue of summons or warrant, in any case,
does not change the nature of the case, for instance, a warrant issued in a summons case does not
make it a warrant case

The case of Padam Nath V. Ahmad Dobi, 1969. A trial in a warrant case begins by either filing a
First Information Report or FIR in a Police Station or filing it directly before the Magistrate.

Warrant cases

Section 2(x) of the crpc 1973 provides for warrant cases, “these are those cases which related to
an offence punishable with death, imprisonment for life or imprisonment for term exceeding 2
year.” On the basis of above definition the warrant cases means punishment of –
 33

a. death punishment
b. life imprisonment
c. imprisonment for a term exceeding 2 years

There are two different procedures prescribed for trial of warrant cases by a Magistrate:

1) Procedure of trial of warrant cases instituted on a police report.

2) Procedure of trial of warrant cases instituted otherwise than on a police report.

Sections 238 to 243 both inclusive relate exclusively to the procedure of trials in cases initiated
on police report whereas sections 244 to 247, both inclusive, relate exclusively to the procedure
in cases initiated otherwise than on police report. Section 248 relates to both.

A.-Cases instituted on a police report

Section 238 – Compliance with section 207

When in any warrant-case instituted on a police report, the accused appears or is brought before
a Magistrate at the commencement of the trial; the Magistrate shall satisfy himself that he has
complied with the provisions of section 207 of the act.

A case instituted upon a police report means a case initiated on a charge-sheet submitted by the
police officer in a cognizable case. Before proceeding with the case, the Magistrate has to
ascertain as to whether the copies of documents require to be supplied to the accused according
to Section 207 have been complied with. If they have not been so complied, the Magistrate
should get them supplied and then proceed with the case. If a warrant case is tried as a summons
case, the trial vitiates.

Section 239 – When accused shall be discharged

If, upon considering the police report and the documents sent with it under section 173 and
making such examination of the accused as the Magistrate thinks necessary and after giving the
prosecution and the accused an opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused, and record his reasons for
so doing.

If on the consideration of the documents and after the examination of the accused and after
hearing the prosecution and the defence, the Magistrate is of opinion that there is a ground for
presuming that the accused has committed an offence triable under this chapter with such
Magistrate is competent to try and which he can adequately punish, he shall frame in writing a
charge.

The Magistrate has to record reasons for discharging the accused. Failure to record the reasons
makes the order illegal. The recording of reasons for discharge is essential so that the Higher
 34

Courts may be able to know as to be of opinion that the charge should not be framed and the
accused should be discharged.

Section 240 – Framing of charge

If, upon such consideration examination and hearing, the Magistrate is of opinion that there is
ground for presuming that the accused has committed an offence triable under this Chapter,
which such Magistrate is competent to try and which, in his opinion could be adequately
punished by him, he shall frame in writing a charge against the accused.

Then, the charge shall be read and explained to the accused, and he shall be asked whether he
pleads guilty of the offence charged or claims to be tried. A Magistrate can frame a charge under
Section 240 only when he is competent to try the case. A Magistrate may not be competent to try
the case if the offence has been committed beyond the local jurisdiction of his Court.

The charge framed shall be read over and explained to the accused and he should be asked
whether he pleads guilty or not. Charge shall be read over the accused and not the pleader.

Section 241 – Conviction on plea of guilty

If the accused pleads guilty, the Magistrate shall record the plea and may, on his discretion,
convict him. If the accused pleads guilty, the Magistrate should record his plea in his own words
and clearly.

The Magistrate has discretion to convict an accused on his plea of guilty. But the plea of guilty
must be clear. It is admission of all the facts on which the charge is founded and also the
admission of guilt in respect of them. The plea of the accused must be recorded as much as
possible in the very words of the accused so that the higher courts may determine whether the
plea of the accused really amounted to a confession of the guilt.

Section 242 – Evidence for prosecution

If the accused refuses to plead or does not plead, or claims to be tried or the Magistrate does not
convict the accused under section 241 the Magistrate shall fix a date for the examination of
witnesses. Provided that the Magistrate shall supply in advance to the accused, the statement of
witnesses recorded during investigation by the police. The Magistrate may, on the application of
the prosecution, issue a summons to any witnesses directing him to attend or to produce any
document or other thing,

On the date so fixed, the Magistrate shall proceed to take all such evidence as may be produced
in support of the prosecution. When the accused does not plead guilty or claims to be tried or
even on plea of guilty the Magistrate does not convict him, he shall fix a date for the examination
of witnesses. It is for the benefit of the accused that this provision for fixing a date has been
provided.
 35

Section 243 – Evidence for defence

The accused shall then be called upon to enter upon his defence and produce his evidence; and if
the accused puts in any written statement, the Magistrate shall file it with the record. If the
accused, after he had entered upon his defence, applies to the Magistrate to issue any process for
compelling the attendance of any witness for the purpose of examination or cross-examination,
or the production of any document or other thing, the Magistrate shall issue such process unless
he considers that such application should be refused on the ground that it is made for the purpose
of vexation or delay or for defeating the ends of justice and such ground shall be

The Magistrate may, before summoning any witness on an application require that the reasonable
expenses incurred by the witness in attending for the purposes of the trial be deposited in Court.

B.-Cases instituted otherwise than on police report

Section 244 – Evidence for prosecution

When, in any warrant-case instituted otherwise than on a police report the accused appears or is
brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all
such evidence as may be produced in support of the prosecution. The Magistrate may, on the
application of the prosecution, issue a summons to any of its witnesses directing him to attend or
to produce any document or other thing.

Section 245 – When accused shall be discharged

If, upon taking all the evidence referred to in section 244 the Magistrate considers, for reasons to
be recorded, that no case against the accused has been made out which, if unrebutted, would
warrant his conviction, the Magistrate shall discharge him.

Section 246 – Procedure where accused is not discharged.

If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of
opinion that there is ground for presuming that the accused has committed an offence triable
under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a charge against the accused.

The charge shall then be read and explained to the accused, and he shall be asked whether he
pleads guilty or has any defence to make.

If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion,
convict him thereon.

If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not
convicted under Sub-Section (3) he shall be required to stale, at the commencement of the next
hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit,
 36

forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the
prosecution whose evidence has been taken.

If he says he does so wish, the witnesses named by him shall be recalled and, after cross-
examination and re-examination (if any), they shall be discharged.

The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-
examination and re-examination (if any), they shall also be discharged.

Section 247 – Evidence for defence.

The accused shall then be called upon to enter upon his defence and produce his evidence; and
the provisions of section 243 shall apply to the case.

Section 248 – Acquittal or conviction

If, in any case under this Chapter in which a charge has been framed, the Magistrate finds the
accused not guilty, he shall record an order of acquittal.

Where, in any case under this Chapter, the Magistrate finds the accused guilty, hut does not
proceed in accordance with the provisions of section 325 or section 360, he shall, after hearing
the accused on the question of sentence, pass sentence upon him according to law.

Trial of Summon cases (Section 251-259)

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

Summon cases

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

Substance of accusation to be stated to the accused

When in a summons cases the accused appears or is brought before the Magistrate, the
particulars of the offence of which he is accused shall be stated to him, and he shall be asked
whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a
formal charge.
 37

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

If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the
words used by the accused and may, in his discretion convict him thereon.

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

Conviction on plea of guilty in absence of accused in petty cases section 252 and 253

If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the
words used by the accused and may, in his discretion convict him thereon under section 252.

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

Procedure when not convicted by the Magistrate section 254

[Hearing the Prosecution and Defence case]

If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate
shall proceed to hear the prosecution and take all evidence as may be produced in support of the
prosecution, and also to hear the accused and take all such evidence as he produces in his
defence.

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

The Magistrate may, before summoning any witness on such application, require that the
reasonable expenses of the witness incurred in attending for the purposes of trial be deposited in
court.

Acquittal or conviction section 255

If the Magistrate after considering evidence finds the accused not guilty, he shall record an order
of acquittal. He may also decide to release the offender after admonition, or on probation of good
conduct after under Section 360, or under Probation of Offender Act,1958 after considering the
nature of offence, the character of offender and circumstances of the case.
 38

Effect of Non-appearance of complaint section 256

Section 256 of the code lays down that if the complainant does not appear on the date fixed for
hering before court, then the magistrate shall dismiss the compaoint and acquit the accused . this
facility is only for case instituted upon complaint and not for cases instituted upon police report.

Withdrawal of complaint 257

According to section 257, a complaint can withdraw, at any time before a final order is passed in
any case, against the accused or if there are more than one accused against all or any of them.
The effect of such withdrowa would be the acquittal of the accused.

The court can convert a summons case into a warrant case 259

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

Summary Trials (Sections 260-265)

What is Summary Trial

A summary trial is a trial in an action which is entered without preliminary trial and which is a
short or brief trial based upon affidavits of the parties. Summary preceding is a form of trial
before a judge without following the rules of procedure applicable to trials. In respect of certain
cases including mostly summons cases and a few warrant cases, Courts have been empowered to
use a summary procedure which is essentially an abridged form of summons case procedure.
Power to try summarily

I. According to Section 260 (1) Notwithstanding anything contained in this Code -

Any Chief Judicial Magistrate:
II. Any Metropolitan Magistrate;
III. Any, Magistrate of the first class specially empowered in this behalf by the High Court,
may any of he thinks fit, try in a summary way all or any of the following offenses.
a. Offenses not punishable with death, imprisonment for life or imprisonment for a term
exceeding two years;
b. Theft, under section 379, section 380 or section 381 of the Indian Penal Code (45 of
1860), where the value of the property stolen does not exceed 1[two thousand rupees];
 39

c. Receiving or retaining the stolen property, under section 411 of the Indian Penal Code
(45 of 1860), where the value of the property does not exceed 1[two thousand rupees];

d. Assisting in the concealment or disposal of stolen property, under section 414 of the
Indian Penal Code (45 of 1860) where the value of such property does not exceed 1[two
thousand rupees];
e. Offenses under sections 454 and 456 of the Indian Penal Code (45 of 1860);

f. Insult with intent to provoke a breach of the peace, under section 504 and 2[criminal
intimidation punishable with imprisonment for a term which may extend to two years, or
with fine, or with both], under section 506 of the Indian Penal Code (45 of 1860).
g. Abetment of any, of the foregoing offenses;
h. An attempt to commit any of the foregoing offenses, when such an attempt is an offense;
i. Any offense constituted by an act in respect of which a complaint may be made under
Section 20 of the Cattle-Trespass Act, 1871 (1 of 1871).
j. When in the Course of a summary trial it appears to the Magistrate that the nature of the
case is such that it is undesirable to try it summarily, the Magistrate shall recall any
witnesses who may have been examined and proceed to

Summary trial by Magistrate of the second class

According to Section 261 of the Code of Civil Procedure the High Court may confer on any,
Magistrate invested with the powers of a Magistrate of the second class power, to try summarily
any offense which is punishable only with fine or with imprisonment for a term not exceeding,
six months with or without fine, and any abetment of or attempt to commit any such offence.
Procedure for summary trials

According to Section 262 of the Criminal Procedure Code –

(1) In trial under this Chapter, the procedure specified in this Code for the trial of summons-case
shall be followed except as hereinafter mentioned.

2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of
any conviction under this Chapter.

Record in summary trials

According to Section 263, In every case tried summarily, the Magistrate shall enter, in such form
as the State Government may direct, the following particulars, namely.

I. The serial number of the case;

II. The date of the commission of the offense;
III. The date of the report of complaint;
 40

IV. The name of the complainant (if any);

V. The name, parentage and residence of the accused;
VI. The offense complained of and the offence (if any) proved, and in cases coming under
clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the
property in respect of which the offense has been committed;
VII. The plea of the accused and his examination (if any);
VIII. The finding;
IX. The sentence or other final order;
X. The date on which proceedings terminated.

Judgment in cases tried summarily

According to Section 264 of the Code of Criminal Procedure, in every case tried summarily in
which the accused does not plead guilty, the Magistrate shall record the substance of the
evidence and a judgment containing a brief statement of the reasons for the finding.
Language of record and judgment

According to Section 265 of the said Code (1) Every such record and judgment shall be written
in the language of the court.

(2) The High Court may authorize any Magistrate empowered to try offenses summarily to
prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf
by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such
Magistrate.

Qs. Plea Bargaining (Sections 265-A to 265 – C).

Ans. Introduction

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

Meaning and Definition

While searching for the dictionary meaning one can get meanings only after connecting the two
words together, that is a plea, meaning to bring forward one’s excuse, justification, defence, and
bargaining, ways to arrive at an agreement of favorable purchase. A “plea bargain”is a practice
whereby the accused forgoes his right to plead not guilty and demand a full trial and instead uses
a right to negotiate for a benefit.
 41

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

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

Salient Features of Plea Bargaining

Following are the salient features of Plea Bargaining;

I. It is applicable in respect of those offences for which punishment is up to a period of 7

years.
II. It does not apply to cases where offence is committed against a woman or a child below
the age of 14 years.
III. When court passes an order in the case of plea bargaining no appeal shall lie to any court
against that order.
IV. It reduces the charge.
V. It drops multiple counts and presses only one charge.
VI. It makes a recommendation to the courts about punishment or sentence.

Types of Plea Bargaining

There are three main types of Plea Bargaining namely,

I. Charge Bargain
II. Sentence Bargain
III. Fact Bargain

Object of Plea Bargaining

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

I. reduce the pending litigation.

II. decrees the number of undertrial prisoners.
III. make provision of compensation to the victim of crimes by the accused.
IV. cut delay the disposal of criminal cases.

Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea
bargaining in India. The following are provisions which it added:-

Section 265-A (Application of Chapter)

 42

the plea bargaining shall be available to the accused who is charged with any offense other than
offenses punishable with death or imprisonment or for life or of an imprisonment for a term
exceeding to seven years. Section 265 A (2) of the Code gives the power to notify the offenses to
the Central Government.

The Central Government issued Notification No. SO1042 (II) dated 11-7/2006 specifying the
offenses affecting the socio-economic condition of the country.

Section 265-B (Application for Plea Bargaining)

A person accused of an offense may file the application of plea bargaining in trails which are
pending.

The application for plea bargaining is to be filed by the accused containing brief details about the
case relating to which such application is filed. It includes the offences to which the case relates
and shall be accompanied by an affidavit sworn by the accused stating therein that he has
voluntarily preferred the application, the plea bargaining the nature and extent of the punishment
provided under the law for the offence, the plea bargaining in his case that he has not previously
been convicted by a court in a case in which he had been charged with the same offence.

The court will thereafter issue the notice to the public prosecutor concerned, investigating officer
of the case, the victim of the case and the accused of the date fixed for the plea bargaining.

When the parties appear, the court shall examine the accused in-camera wherein the other parties
in the case shall not be present, with the motive to satisfy itself that the accused has filed the
application voluntarily.

Section 265-C (Guidelines for Mutually satisfactory disposition)

It lays down the procedure to be followed by the court in mutually satisfactory disposition. In a
case instituted on a police report, the court shall issue the notice to the public prosecutor
concerned, investigating officer of the case, and the victim of the case and the accused to
participate in the meeting to work out a satisfactory disposition of the case. In a complaint case,
the Court shall issue a notice to the accused and the victim of the case.

Section 265-D (Report of the mutually satisfactory disposition)

This provision talks about the preparation of the report of mutually satisfactory disposition and
submission of the same. Two situations may arise here namely

Drawbacks of Plea Bargaining

Some of the major drawbacks of the concept of Plea Bargaining as is recognized in India are as
under;
 43

I. A threat to the right to fair trial.

II. Involving the Police in Plea Bargaining process would invite coercion.
III. By involving the court in Plea Bargaining process the court impartially is impugned.
IV. Involving the victim in Plea Bargaining process would invite corruption.
V. If the plead guilty application of the accused in reject then the accused would face great
hardship to prove himself innocent.

Requirement

I. To ensure fair justice, Plea Bargaining must encompass the following minimum
requirements namely,
II. The hearing must take place in court.
III. The court must satisfy itself that the accused is pleading guilty knowingly and
voluntarily.
IV. Any court order rejecting a Plea Bargaining application must be kept confidential to
prevent prejudice to the accused.

Q. Appeal, Reference and Revision (Section 374-381, Sections 395-405).

Ans. Appeal

Introduction

Appeal is an important remedy for person’s dissatisfied from judgment finding and orders of the
trial court. Under section 372 of the Cr.P.C., it is provided that relation to appeal it is necessary
to know that no appeal shall lie from any judgment or order of a criminal court except as
provided by this code or any other law for time being in force.

Article 25 of the Constitution Of India guarantees life and liberty to every citizen, small or big,
rich or poor, as one of the Fundamental Rights. It is therefore, necessary that a person aggrieved
by an order of the court of the first instance may be able to challenge it by preferring an appeal.
An appeal is a method of correction of manly error or solution of human frailty.

Meaning of Appeal

The term “appeal” has not been defined in the code. According to the dictionary meaning, an
appeal is a complaint or grievance to a superior court for reconsideration or review of a decision,
verdict or sentence of a lower court.

Akalu v. Ram Deo, AIR 1973 SC 2145 A right of Appeal is not a natural or inherent right. It is
a statutory right and must be governed by the statute which grants it. Section 372 provides, no
appeal lies except otherwise provided by the Code or by any other law for the time being in
force. Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to present
an appeal to the Supreme Court against the order of acquittal passed by the High Court.
 44

Following is provision of appeal—

Section 373 –appeal against order

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

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

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

Section 374: appeals from convictions

Any person convicted on a trial held by a High Court in its extraordinary original criminal
jurisdiction may appeal to the Supreme Court.

Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a
trial held by any other Court in which a sentence of imprisonment for more than seven
years may appeal to the High Court Save as otherwise provided in sub-section (2), any person,

I. convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or

Magistrate of the first class, or of the second class,
II. sentenced under section 325, or
III. in respect of whom an order has been made or a sentence has been passed under section
360 by any Magistrate, may appeal to the Court of Session.

NO RIGHT OF APPEAL

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

I. Section 375 of the code provides that whare an accued person has been conviction on
plea of guilty there shall be no appeal.
II. Where a High Court passes a sentence of imprisonment not exceeding six months or fine
not exceeding one thousand rupees or both;
III. Where a Court of Session or a Metropolitan Magistrate passes a sentence of
imprisonment not exceeding three months or fine not exceeding two hundred rupees or
both;
IV. Where a Magistrate of the First Class passes a sentence of fine not exceeding one
hundred rupees; or
V. Where in a summary case, a Magistrate passes a sentence of fine not exceeding two
hundred rupees.

Appeal for enhancement of sentence

 45

Section 377 confers right on the Government to file an appeal against the inadequacy of sentence
awarded by any court other than a High court. If the sentence appears to be manifestly
inadequate resulting in failure of justice, the appellate court can interfere with it and can enhance
the sentence. But at the same time, the high court can also exercise its revisional jurisdiction, suo
motto call for the record and enhance the sentence in appropriate cases after giving an
opportunity to the accused.[4] The appellate court must pass a speaking order for enhancing the
sentence. A bold statement that the ends of justice demanded enhancement of sentence was held
insufficient by courts.

An appeal under Section 377 must be filed by the State within a period of 60 days and the
contention of the State that it was under a mistaken belief that period of limitation is ninety days
would be no excuse for condonation of the delay.

Appeal in case of acquittal

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

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

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

“Very substantial and compelling reasons” exist when:

I. The trial court’s conclusion with regard to the facts is palpably wrong;
II. The trial court’s decision was based on an incorrect view of law;
III. The trial court’s judgment is likely to result in “grave miscarriage of justice”;
IV. The entire approach of the trial court in dealing with the evidence was patently illegal;
V. The trial court’s judgment was manifestly unjust and unreasonable;
VI. The trial court has ignored the evidence or misread the material evidence or has ignored
material documents like dying declarations/ report of the Ballistic expert, etc.

This list is intended to be illustrative, not exhaustive.

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

Section 379 – appeal against conviction by high court in certain cases

 46

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

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

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

II. Convicted and sentenced him to death or to imprisonment for life or to imprisonment for
a term of ten years or more.

Section 380- special right of appeal in certain cases

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

I. Appeal to court of session how heard

II. Appeal to the court of session shall be heard by the sessions judges or by ASJ u/s 381.

Reference and Revision (Sections 395-405).

The power of revision to victims of crime gives a supervisory jurisdiction to superior court.
Chapter 30 – Section 395 to Section 405 of Criminal Procedure Code,1973 deals with reference
and revision. Justice is given out fairly and correctly without negligence and irregularities in
procedures of law. Both appeal and revision under the Criminal Procedure Code are review
procedures. They have the power to execute or suspend a sentence. The revision power do not
create any right to the litigant but it only conserve the power of High Court to do that justice in
accordance with the law. They may even have power to order an inquiry which is subject to
certain limitations.

I. The correctness of the lower court

II. the regularity of proceedings in the court
III. power of revision cannot be uses in interlocutory orders
IV. The argument of the person applying for revision should be considered during the hearing
even though they are too brief.

Section 395 to 405 of Criminal Procedure Code,1973

Section 395 : Reference to the High Court

1. This section defines reference as in when a case is pending and it involves a question
pertaining to any of the Act or Ordinance or Regulation or any Provision which is determined for
disposal of the case. Then such act or ordinance or provision may be invalid or inoperative but
not been declared by the Supreme Court or High court to which that Court is subordinate and the
 47

court shall state the opinion and reasons which is used as reference for the decision of the High
Court.

2. If any case which pending does not apply to sub-section (1) then the Court or Session can refer
to the decision of High Court to any question of law which is arising.

3. Any Court which is making a reference under the Sub section (1) or (2) may either commit the
accused to jail or release him on bail and appear when they are called upon.

Section 396: Disposal of the case according to High Court’s decision

1. High Court shall pass order to cause a copy of such order to the Court which shall dispose of
the case conformable to the said order.

2. High court may direct to covers for the party that may bear the costs.

Section 397: Calling for record and exercise of power of revision

1. The High Court has power to call upon for the record of any proceedings and examine them
before any inferior Court within its local jurisdiction. It can direct the execution of the sentence
or order to suspend it and shall release the accused on bail.

2. The power of revision mentioned in sub-section (1) cannot be used in any interlocutory
proceedings.

3. If any application is made by a person to the Court under this section then no further
application can be made by the same person.

Section 398: Power to order inquiry

The court has the power to order an inquiry after examining any record under Section 397. The
court may direct the Chief Judicial Magistrate by himself or any of his subordinate to make the
further inquiry into any complaint which has been dismissed under Section 203 or Sub section
(4) of Section 204.

Section 399: Power of revision by Session Judge

1. Session Judge may exercise all or any of the power of the High Court under Sub-section (1) of
Section 401.

2. When power of revision is exercised by Session judge under sub section (1) of 401 then the
other sub sections under 401 shall also apply to proceedings.

3. The decision of Sessions judge in the power of revision shall be taken as final and no further
proceeding is entertained.
 48

Section 400: Power of additional Judge

An Additional Judge shall also exercise the powers of Session Judge in respect of any case
transferred to him.

Section 401: Power of revision of High Court

1. The High Court can exercise any of the powers conferred in the Court of Appeal under
Sections 386, 389, 390 and 391 or on a Court of Session under Section 307. The court of revision
are equally divided into opinions and the case shall be dispose in the manner provided under
Section 392.

2. No order shall be made to the prejudice of the accused and he should be given an opportunity
to be heard.

3. An order of acquittal cannot be converted into conviction by the High Court.

4. When a appeal is brought then no proceedings in the way of revision shall be entertained.

5. If an application for revision is made when an appeal lies then the High Court is satisfied that
the application was made under erroneous belief then they may treat the application for revision
as a petition of appeal and deal with them accordingly.

Section 402: Withdraw or transfer or revision cases by High Court

1. When one or more convicts of the same trial apply for revision but in different courts. then the
high court shall decide about transfer of the cases.

2. When it is transferred to High Court then it shall deal with the case as if it was duly made
before it.

3. When it is transferred to Sessions Judge then it shall deal with the case as if it was duly made
before it.

4. When the application is transferred from High Court to Session Judge, there can be no further
application be made to High Court or any other Court be the person or persons whose application
has been disposed by Sessions Judge.

Section 403: Option of the Court for hearing the parties

It is optional for the Court to hear the parties during the exercise of power of revision.

Section 404: Statement of Metropolitan Magistrate

 49

Under section 397, any record of Metropolitan Magistrate is called by High Court, then he has
to submit with the record a statement for the grounds on which the order or decision is taken and
the Court shall consider such statement before setting aside or overruling such decision.

Section 405: Order of High Court should be certified to Lower Court

When as case is revised in the manner provided in Section 388 then the High court shall certify
its decision to the Court by which the order revised was recorded and they have to make
decisions conformable to the certified decision and the record shall be amended if needed.

Asghar Khan And Ors. vs State Of Uttar Pradesh on 1 May, 1988

When High Court and Sessions Judge have concurrent powers under Section 397 (3) then in that
case the Session Judge being the Appellate Court, it would not have exercised the power of
revision. Therefore the High Court only has power of revision under Section 397 in this case.

Mohd. Afzal vs Noor Nisha Begum on 5 February, 1997

It is mandatory for the Session Judge and it is settled law that when power of revision is
exercised the accused or the said person should be given an opportunity to be heard.

Amit Kapoor v. Ramesh Chander & Anr

The jurisdiction provided to the Court under Section 397 can be used to examine the legality,
correctness or proprietary order or judgment passed by the trial court or any inferior court. This
section does not specifically use the words “prevent abuse of process of court and secure justice”
and the jurisdiction under this section is very limited. The jurisdiction can be used where there is
error, non-compliance with the provisions of law and if the decision is erroneous in nature or the
judicial discretion is exercised arbitrarily.

Qs. Limitation for taking cognizance of certain offences (Sections 467-473).

Introduction

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

Limits to taking cognizance of certain offences

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

Definitions – Section 467

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

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

Unless an amendment has been imbibed in the Code modifying the above clause, or unless
exceptional circumstances provide otherwise, violation of this time period will be considered
ultra vires to the section.

The above section has been jurisdicated by the case of Additional District
Magistrate Jabalpur vs S.S Shukla (1976 AIR 1207)

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

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

(2)The period of limitation shall be-

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

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

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

Section 469- Commencement of the period of limitation

This section lays down the details regarding the commencement of the period of limitation in
taking cognizance to an offence.

I. It lays down that such period should ensue on the date of the commission of offence,
II. or in case if the person aggrieved by the offence or to police officer is oblivious about the
exact date of the offence, then the period of limitation commencement ensues from the
 51

first date when the victim or any such person or the police officer himself, whichever
earlier, gains a knowledge of the offence.

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

Section 470-Exclusion of Time in certain Cases

This section elaborates on the time that is to be excluded while calculating the period of
limitation. Firstly, it says that if the concerned person whose offence or case is being evaluated
for cognizance is engaged in the proceedings of another prosecution against the offender in the
meanwhile, then the tenure taken by that prosecution would be excluded.

The prosecution might pertain to a case filed in the first instance or one in a court of appeal. The
second clause provides that if the case in prosecution has received a stay order or injunction from
the court, then full period during which the injunction or stay order will continue to operate will
remain outside the purview of the period of limitation of the cognizance.

It is stated that in case any law necessitates the obtaining of any order of sanction or permission
of any offence, then the date on which the application for a sanction is filed till the date on which
the sanction or permission is received gets excluded from being computed within the period of
limitation.

Apart from the above the period of limitation also does not consider the time during which the
accused is outside the territory of India or in any such area which is outside the administration of
the central government and also the time during which he tries to abscond conceal himself so as
to escape arrest.[22]

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

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

Continuing offence -Section 472

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

Extension of period of limitation in certain cases – Section 473

 52

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

Qs. Bail and Bonds (Section 436 – 446-A).

Ans. Introduction

The object of arrest and detention of the accused person is primarily to secure his appearance at
the time of trial and to ensure that in case he is found guilty he is available to receive the
sentence. If his presence at the trial could be reasonably ensured otherwise than by his arrest and
detention, it would be unjust and unfair to deprive the accused of his liberty during the pendency
of the criminal proceedings against him. The provisions regarding the release of the accused
person on bail are aimed at ensuring the presence of accused at his trial but without unreasonably
and unjustifiably interfering with his liberty.

Section 436 to 450 deals with the provision of bail and bond. There are two types of offences
bailable and nobailable offences. The code has not provided a definition of bail although the term
bailable and nonbialable has been defined.

Meaning

The law Lexicon defines bail as security for the appearances of the accused person on giving
which he is released pending trial or investigation. According to the Black’s law dictionary bail
is to produce the release of person from legal custody by undertaking that he shall appear at the
time and place designated and submit himself to the jurisdiction and judgment of the court.

It is a process to set a person free who is under arrest or detention by taking security for his
appearance.

Bailable and Non-bailable offences.

All the offences are classified into bailable or non-bialable offences in the code

Bailable offences

According to section 2(a) bailable offences means an offence which are general in nature and
bail can be taken.

Non-bailable offences

According to section 2(B) non bailable offences are those offences which are serious in nature
and bail cannot be taken and claimed. In such case bail depends upon the discretion of
magistrate.

Provision related to bial in bailable offences

Section 436 in what cases bail to be taken

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Section 436 makes provision for bail of person who is accused of any offence other then a
non-bailable offence. A person shall be released on bail if—

I. he is arrested or detained without warrant by an officer in charge of a police station,

II. he appears or is brought before a Court,
III. he is prepared at any time while in the custody of such officer or at any stage of the
proceeding before such Court to give bail, such person shall be released on bail.

where a person has failed to comply with the conditions of the bail- bond as regards the time and
place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion
in the same case he appears before the Court or is brought in custody and any such refusal shall
be without prejudice to the powers of the Court to call upon any person bound by such bond to
pay the penalty under section 446.

In Hussainara v. Home Secretary, 1980 1 SCC 81, Bhagwati, J. observed that one of the
reasons why our legal and judicial system continually denies justice to the poor by keeping them
for long years in pre-trial detention in our highly unsatisfactory bail system. It suffers from
property-oriented approach which proceeds on the erroneous assumption that rise of monetary
loss is only deterred against fleeing from justice.

However, by Criminal Procedure (Amendment) Act, 2005 sub-section (1) Section 436 was
amended to make a mandatory provision that if the arrested person is accused of a bailable
offense is an indigent and cannot furnish surety, the courts shall release him on his execution of a
bond without sureties. Legislature by Criminal Procedure (Amendment) Act,
2005 inserted Section 436A which lays down the maximum period for which an under trial
prisoner can be detained.

Section 437 when bail may be taken in case of non bailable offence-

This section gives the Court or a police officer power to release an accused on bail in a non-
bailable case, unless there appear reasonable grounds that the accused-

I. Has been guilty of an offence punishable with death or with imprisonment for life.
II. Shall not be released on bail if the offence is cognizable.
III. Had been previously convicted of an offence punishable with death, imprisonment for
life or imprisonment for 7 years or more.
IV. Or he had been previously convicted on 2 or more occasion of a non-bailable and
cognizable offence.

Exception

(1) a person under the age of sixteen years (2) a woman; or (3) a sick or infirm person may be
released on bail even if the offence charged is punishable with death or imprisonment for life.
 55

Condition

When a person accused or suspected of the commission of an offence punishable with

imprisonment which may extend to seven years or more or of an offence under Chapter
VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or
attempt to commit, any such offence, is released on bail under Sub-Section (1) the Court shall
impose the conditions-

I. that such person shall attend in accordance with the conditions of the bond executed
under this Chapter,
II. that such person shall not commit an offence similar to the offence of which he is
accused, or suspected, of the commission of which he is suspected,
III. that such person shall not directly or indirectly make any inducement, threat or promise
to any person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer or tamper with the evidence. and may also
impose, in the interests of justice, such other conditions as it considers necessary.
IV. An officer or a Court releasing any person on bail under sub-section (1), or sub-section
(2), shall record in writing his or its reasons or special reasons for so doing.
V. Any Court which has released a person on bail under sub-section (1), or sub-section (2),
may, if it considers it necessary so to do, direct that such person be arrested and commit
him to custody.
VI. If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable
offence is not concluded within a period of sixty days from the first date fixed for taking
evidence in the case, such person shall, if he is in custody during the whole of the said
period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be
recorded in writing, the Magistrate otherwise directs.

Grant of bail is the rule and its refusal is an exception. But while granting it the Court has to be
satisfied that the order to be passed is in the interest of justice. (Mazahar Ali v. State, 1982
CrLJ 1223, 1225 (J&K)

Anticipatory Bail: Section 438

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

Condition for Anticipatory Bail

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Section 438 of crpc 1973 provides following conditions for the anticipatory

1. The applicant has reason to believe that –i. he may be arrested. ii. Such arrest may be in
nonbailable offence.

2. High Court or the Court of Session may impose the following conditions on the person
seeking anticipatory bial--

I. a condition that the person shall make himself available for interrogation by a police
officer as and when required;
II. a condition that the person shall not, directly or indirectly, make any inducement, threat
or promise to any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the Court or to any police officer;
III. a condition that the person shall not leave India without the previous permission of the
Court;

IV. such other condition as may be imposed under sub-section (3) of section 437, as if the
bail were granted under that section.

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

Cancellation of Bail

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

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

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

Section 439 special power of HC or Court of Session regarding bail

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HC or the Court of Session may direct that any person accused of an offence and in custody be
release on bail on the conditions imposed by the magistrate or HC or Court of Session may set
aside the condition or modified the condition for the bail of accused person.

Section 440 amount of bond and reduction

The amount of every bond executed under this chapter shall be fixed with due regard to the
circumstances of the case and shall not be excessive. The High Court or Court of Session may
direct that the bail required by a police officer or Magistrate be reduced.

Section 441 Bond of accused and the sureties

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

Section 441A Declaration by Sureties.

Every person standing surety to an accused person for his release on bail, shall make a
declaration before the Court as to the number of persons to whom he has stood surety including
the accused, giving therein all the relevant particulars.

Section 442 Discharge from custody.

As soon as the bond has been executed, the person for whose appearance it has been executed
shall be released; and when he is in jail the Court admitting him to bail shall issue an order of
release to the officer in charge of the jail, and such officer on receipt of the orders shall release
him.

Section 443 Power to order sufficient bail when that first taken is insufficient.

If, through mistake, fraud, or otherwise, insufficient sureties have been accepted, or if they
afterwards become insufficient, the Court may issue a warrant of arrest directing that the person
released on bail be brought before it and may order him to find sufficient sureties, and on his
failing so to do, may commit him to jail.

Section 444 Discharge of sureties.

All or any sureties for the attendance and appearance of a person released on bail may at any
time apply to a Magistrate to discharge the bond. On such application being made, the Magistrate
shall issue his warrant of arrest directing that the person so released be brought before him. On
the appearance of such person pursuant to the warrant, or on his voluntary surrender, the
 58

Magistrate shall direct the bond to be discharged either wholly or so far as relates to the
applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do
so, may commit him to jail.

Section 445 Deposit instead of recognizance.

When any person is required by any Court or officer to execute a bond with or without sureties,
such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit
a sum of money or Government promissory notes to such amount as the Court of officer may if
in lieu of executing such bond.

Section 446 Procedure when bond has been forfeited.

Where a bond under this Code is for appearance, or for production of property, before a Court
and it is proved to the satisfaction of that Court or of any Court to which the case has
subsequently been transferred, that the bond has been forfeited. The Court shall record the
grounds of such proof, and may call upon any person bound by such bond to pay the penalty
thereof or to show cause why it should not be paid.

Each surety liable for penalty in forfeiture of bond. Allotment of half share not legal.
Mohammed Kunju v. State of Karnataka, AIR 2000 SC 6: 2000 Cr LJ 165 (SC).

Section 446A Cancellation of bond and bail-bond.

the provisions of section 446, where a bond under this Code is for appearance of a person and it
is forfeited for breach of a condition, the bond executed by such person as well as the bond, if
any, executed by one or more of his sureties in that case shall stand cancelled; and

Provided that subject to any other provision of this Code he may be released in that case 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, as the case may be, thinks sufficient.

Qs.Security for keeping the peace and for good behavior (section 106 to 118)

Peace and Good behavior are two important expectations of a civilized society. It is also the duty
of state to attempt to maintain peace and good behavior. The sec. 106 to sec. 110 of the Criminal
Procedure Code, 1973 takes a step in this direction. Provision related to peace and good behavior
is following.

1. Security for keeping peace on Conviction

Sec.106 provides for security for keeping peace on conviction. According to it-when a court of
session or court of first class magistrate convicts any person for any of the following offences or
of abetting such offence and is of the opinion that it is necessary to take security from such
person for keeping peace, then the court may order him to execute a bond, with or without
sureties’ for keeping the peace for such period not exceeding three years:-
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a) Any offence which consists of assault or using criminal force ore committing mischief.
B) Any offence of criminal intimidation.
c) Any other offence which caused, or was intended or known to be likely to cause, a breach or
peace. Inder Singh VsHarbans Singh-1955.

2. Security for keeping peace in Other Cases:-

Sec. 107 of the code lays down the provision for demand of security for keeping peace in certain
matters. According to it: -

a) A breach of peace.

b) Disturb the public tranquility.

c) Any wrongful act that may probably occasion a breach of peace or disturb the public
tranquility. Then he may ordered that he shall execute a bond with or without sureties for
keeping peace for such period not exceeding one year. (Ramnarayan Singh V/s State of Bihar-
1972.

3. Security for good behavior from persons disseminating Seditious Matters:-

Sec 108 lays down provision for taking security from person disseminating seditious matters.
a)Any matter the publication of which is punishable under section 124-A or Sec 153A or Sec
153B or Sec 295A or the Indian Penal Code (45 of 1860).
b) Any matter concerning a judge acting or purporting to act in the discharge of his official
duties which amounts to criminal intimidation or defamation under the Indian Penal Code (45 of
1860). Then such magistrate may demand such person to execute a bond, with or without
sureties’, for his good behavior for such period not exceeding one year. This system has been
declared constitutional in the public interest Kedarnath Singh V/s State of Bihar, 1962.

Suspected persons/criminals section 109

Section 109 empowers Executive Megistrate to require a person who is taking precautions to
conceals his presence and there is a reasonable to believe that he is doing so with a view to
commit congnizable offence, to execute a bond with or without sureties for his good behavior for
a period not exceeding 1 years

4. Security for good behaviour from Habitual Offenders:-

Sec. 110 of the code lays down the provision for demand or security for good behaviour from
habitual offenders. According to it, when an executive magistrate receives information that there
is within his local jurisdiction a person who:-
a)Is by habit a robber, house-breaker, thief, or forger,
b)Is by habit a receiver of stolen property knowing the same to have been stolen.
c) Habitually protects or harbors thieves, or aids in the concealment or disposal of stolen
property.
d) Habitually commits, or attempts to commit, or abets the commission of, the offence of
kidnapping, abduction, extortion, cheating or mischief.
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e) Habitually commits or attempts to commit, or abets the commission of, offences, involving a
breach of peace.
f) Habitually commits, or attempts to commit, or abets the commission of any offence under:-
Then such may require such person to execute a bond with sureties for his good behavior for
such period not exceeding three years.

General provisions relating to security proceedings

Section 111 to 124 of the code contains the provision relating to the security proceeding in
general as follows-
1. The order must be in writing. It must contain the substance of the information, amount
and term of bond and nature of securities. Section 111
2. If the person proceeded against the order is present in the court t he contents of the order
shall be read over to him. section112
3. If the person is not present in the court, summons or warrants may be issued along with
the order of magistrate. Section 113
4. Every copy of that order shall be delivered by the concerned officers. section 114
5. The person may appear in person or may be represented by his advocate. section 115
6. When such person appears before the court, the magistrate may inquire and examine the
witness if necessary. 116
7. The enquiry must be completed within 6 the month. If the enquiry contains beyond 6
month, such person may apply to session judge for setting aside the order. 117.

Maintenance of Public order and tranquility section 129 to 132

Unlawful Assembly

The main function of the state is to maintain law and order. If there is any disturbance in public
peace due to unlawful assembly it affects the law and order. Section 129 to 132 of crpc 1973 laid
down the certain provision to disperse such unlawful assembly in the interest of the public peace.
Section 141 to 160 of Indian penal code 1860 also deals with the offence related to public
tranquility.

Meaning

When 5 or more persons jointly with the common object causes disturbance to the public peace
the assembly of such persons may be termed as unlawful assembly.

Definition

Under the section 141 of the IPC 1860 define unlawful assembly

An assembly of five or more person is designed as unlawful assembly if the common object of
such assembly by criminal force or show the criminal force to constitute the offence. Under
section 141 of IPC—
I. There must be an assembly of five or more then five person
II. They have a common object in committing the offence
 61

III. Using of criminal force or show criminal force.

IV. Resisting the execution of law or legal person.
V. To commit any mischief, criminal trespass or other offences.
VI. Force able possession of property.
VII. Illegal compulsion

Dispersal of unlawful assembly

Unlawful assembly may be dispersed through the following means—

1 through command section 129

Any executive or officer in charge of a police station or any police officer not below the rank of
sub-inspector may command any unlawful assembly to disperse and shall be the duty of
members of such unlawful assembly to disperse accordingly.

If upon being so commanded any such assembly doesn’t disperse the executive magistrate or
police officer may use civil force to disperse such unlawful assembly and may take assistant of
other officers to arrest such person of unlawful assembly.

Use of Armed forces section 130

If the unlawful assembly could not be dispersed even after using the civil force the executive
magistrate of the highest rank present may disperse such unlawful assembly with the help of
armed forces. Armed forces may use power as little as it caused miner injury to the person of
such unlawful assembly.

Power of armed officer to use force section 131

The code also empowers the military officer if public security is in danger and no executive
magistrate can be communicated with to disperse such unlawful assembly then such military
officer may use the military force to disperse such unlawful assembly.

Protection against the prosecution section 132

Section 132 of code provide protection of any officer against whom the prosecution may be
started.

Conditional order for removal of nuisance 133 to 137

INTRODUCTION: - The cases of public nuisance which sec.133 of Cr. P. Code deals only for
the public cases not in the nuisance of private cases. These cases are referred to Civil
Courts. The proceeding under section 133 should be taken when in case of emergency where
public shall be put to great inconvenience and shall suffer an irreparable injury. It can also be
taken where the obstruction or nuisance has been in existence for a long period. Sec.
 62

133 empowers a Magistrate to take action where there has been invasion of public rights. He
cannot proceed when existence of public right is denied.

1. Scope of Section 133

The unlawful obstruction or nuisance to any way river or channel lawfully used by the public or
to public place. The conduct of any trade or occupation or the keeping of any goods or
merchandise injurious to the health or physical comfort of the community. A building, tent or a
structure or tree as is likely to fall and cause injury to persons. Unfenced tank, well near a public
way or place and a dangerous animal requiring destruction.

In Kachrulal Bhagirath Agarwal v/s State of Maharashtra-2004: The allegation was that red
chilies were stored in godown in residential locality and loading unloading thereof was causing
physical discomfort and injury to the health of people in the locality. The sub divisional
magistrate upon considering evidence of residents in locality came to conclusion that people in
general suffered. It was held that SDM should conduct inquiry on the basis of reliable evidence
and take action accordingly.

2. Service or Notification of order:-

The order should be served to the person for whom it is made in the manner provided for the
service of a summons. If such order cannot be served it shall be notified by proclamation
published in such manner as the State Government may by rules direct and a copy of the same be
stuck up at such place or places as may be fittest for conveying the information to such person
under section 134 of the this code.

3. Person to whom order is addressed to obey or showcause: -

U/S-135, on basis of instructions given in the order the person whom the order is given shall
perform within the time and in the manners specified in the order. Case Nagarjuna Paper Mills
Ltd. v/s S.D.M & R.D. Officer-1987 it was held that the water act has not taken away the power
of S.D.M. under section 133and he can pass order under sect.136 to close a factory causing
pollution when appreciation certificate is not produced.

4. Consequnces of his failing to do so:-

Provisions have been made insec.136 that if such person does not perform such act or appear and
show cause, he shall be liable to the penalty prescribed in that behalf in sec. 188 of the IPC and
order shall be made absolute.

5. Proceedure where existence of public right is denied:-

Where an order is passed for the purpose of preventing obstruction nuisance or danger to the
public in the use of any way river, channel or place, the Magistrate shall on the appearance
before him of the person against whom the order was made. A case of Santosh Kumar
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sharmav/s Moti lal Mahawar-1993, it was held that it is absolutely clear that the Executive
Magistrate before taking recourse to the proceedings laid down under sec.137.

Urgent cases of Nuisance or Apprehended danger section 144 to 144A

An order under Section 144 is in the interest of maintenance of ‘public order’. The power
conferred by Section 144 is not arbitrary, nor is unlimited; it is reasonable. Section 144 is
attracted only in an emergency.

The powers given to the Magistrate mentioned in Section 144 of the Code are very wide and
must be exercised with discretion and discrimination. The urgency of a case of nuisance or
apprehended danger is essential to its treatment under Section 144 of the Code, and the order to
be passed under this Section must be of temporary nature.

Element of 144

Its only for immediate prevention or speedy remedy

Under Section 144 of the Code, the Magistrate may proceed only when immediate prevention or
speedy remedy is desirable and he must be satisfied that there is danger to human life or
disturbance of public tranquillity or a riot or an affray.

Power must be conferred to Magistrate

The power conferred on Magistrate under Section 144 of the Code is an extraordinary power; it
enables them to suspend the lawful rights of the public if they think that such a suspension will
be in the interest of public peace and safety.

Its under the scope of Article 19 of the constitution

These restrictions are within the limits of saving provisions of clauses (2) and (3) of Article 19 of
the Constitution because the restrictions are in the interest of public order and general public

Emergency situation.

Section 144 of the Code is intended to meet with emergency or cases of temporary urgency to
keep things in status quo and not to pass an order which has practically the effect of mandatory
injunction in favour of one of the two opposite parties whereby he is able to deprive the other
completely of his ordinary legal rights.

It must be in writing and contain a statement of material facts

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The order under Section 144 must be based upon proper evidence. The order under Section 144
is not a judicial order, but an executive order. The order must be in writing. The order must
contain a statement of the ‘material facts’ which the magistrate considers to be facts of the case
and upon the footing of which he bases his order. The order must be specific and definite in its
terms.

Opportunity of being heard

Ordinarily, an order under Section 144 should not be made without giving an opportunity to the
person to show cause why it should not be passed. But, sub-section (2) of Section 144 of the
Code empowers a magistrate to pass an ex parte order under Section 144 only in case of
emergency.

Appeal and revision is available

An order under Section 144 is not a bar to the institution of a civil suit by the party on whom the
order is made. Orders passed under Section 144 are open to revision either by the Sessions Judge
or by the High Court.

Ground of making order under section 144

The ground for making an order under Section 144 should be to prevent—

(i) obstruction;

(ii) annoyance;

(iii) injury to any person lawfully employed;

(iv) danger to human life, health or safety;

(v) a disturbance of the public tranquility;

(vi) a riot, and

(vii) Affray.

Power to prohibit carrying arms in procession or mass drill or mass training with arms.—
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Section 144-A of the Code of Criminal Procedure provides:

Prohibition of carrying of arms in procession in any public place

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 organizing or holding of, or taking part in any mass drill or mass training with
arms in any public place.

Public Notice

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 organization.

Time Limit of order

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.

Extension of Time limit

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.

Delegation of powers

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 to the District Magistrate.

Qs. Order for Maintenance of Wives, Children and Parents (Sections 125-128).

Ans. Section 125 to 128 of the code makes provision for maintenance of wives, children and
parents. It is natural and fundamental duty of every person to maintain his wife and children so
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long as they are not able to maintain themselves. So also it is the sacred duty of the person to
maintain his parents.

The code of criminal procedure 1973 is a procedural law however there are a few substantive
provisions in it. Section 125 constitute an exception which is substantive law and which confers
right of maintenance of certain person.

Object

These provisions are enacted with object of enabling discarded wives, helpless and deserted
children and destitute parents to secure the much needed relief. The provision of this chapter
applies whatever may be the personal law by which the parties are governed. However in order
that a wife can claim maintenance under this section it must be proved that she was a legally
wedded wife under the personal law applicable to parties.

Condition-

I. The applicant must be unable to maintain himself/herself.

II. The party against whom maintenance claim must have sufficient means to maintain the
applicant.
III. The other party must have refused or neglect to maintain the applicant.
IV. If the applicant is wife-
a. She mjust not be living in adultery
b. She must not have refused to live with her husband without sufficient reasons.
c. She must not be living separately by mutual consent.
V. Legitimate son can claim maintenance from his father if-
a. He is unable to maintain himself
b. He is minor
c. If he is major but suffering with physical or mental abnormality
VI. Parents can claim maintenece from their son and doughter and grand son and grand
doughter provided that-
a. They are unable to maintain themselves.
b. Son has the sufficient means to maintain.
Who can claim maintenance?
Section 125 following person can claim maintenance

1. Wife
2. Children
3. parents

Wife
Wife means a legitimate wife. That is marriage must be a valid one under the personal law
applicable to the parties. When the marriage is proved to be illegal wife has no claim for
maintenance. Second wife or mistress cannot get maintenance. Wife also includes a woman who
has been divorced and not re-marriage.
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Children

The word child is not defined in the code. It means a person who has not reached full age of 18
years as prescribed by the Indian majority act 1875. And who is incompetent to enter into any
contact or to enforce any claim under the law.

1. Under clause c of sub section 1 a child need not be a minor, but it must be by reason of
physical or mental abnormality or injury unable to maintain itself.

2. It is immaterial whether such a child is legitimate or illegitimate, male of female, or

married or unmarried.

3. If such a minor is married daughter, the liability of father to maintain her will continue
tell she attains the age of majority if her husband is a minor too.

4. After attaining majority a child is not entitled to claim maintenance from father. But if
such child is unable to maintain itself by reason of any physical or mental abnormality or
injury.

Parents

1. Person having sufficient means has to maintain his parents unable to maintain
themselves.

2. Considering the object of such provisions the expression father will include a step-father
and mother will include a step mother.

3. Married daughter can also be liable to maintain her parents.

Procedure section 126

1 Proceeding may be initiated against a person in any district where-

a. Where he is or
b. Where he or his wife/parents/children reside or
c. Where he last resided with his wife or as the case may be with the mother of his
illegitimate child

2. Magistrate must take all evidence in presence of both parites and if such is not possible then in
presence of pleader.

3. Provision to section 126 state that if the person is willingly avoiding service or willingly
neglecting to attend court then magistrate can pass an ex-party order.

4. Such application can be set aside within 3 month by showing good cause for not appearing.
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Amount of maintenance

a. Amount of maintenance was fixed at rs 500 per month but by the amendment act 2001
such limit has been removed.
b. Magistrates have power to grant maintenance considering the facts and circumstances of
the case.
c. Magistrate can grant maintenance either from date of order or from date of application
d. The order for interim maintenance can be passed by the magistrate.

Alteration and cancellation 127

Magistrate has the power to alter or cancel maintenance according to the facts and circumstance
of each case. Following may be ground for alteration and cancelation --

a. Wife is living in adultery

b. Refusal to live with husband without sufficient cause
c. Mutual consent
d. Divorce
e. Remarriage

Enforcement section 128

What is the use of an order if the person against whom it is passed does conform to it? Therefore,
to avoid any injustice to the already suffering victim, the law always provides for an enforcement
mechanism. The relevant procedure for enforcement of an order is provided under §125 (3) read
with §128 of the Code.

If any person against whom an order of maintenance is passed fails to furnish the amount with
registry of the court within the stipulated period, the claimant can make an application before the
court of Judicial Magistrate of the First Class to enforce the order of maintenance and order the
person to adhere to the previous order and make the due payment.

The essential ingredients under this provision are:

I. The application can be made in any court of Judicial Magistrate with the certified copy of
the order of maintenance irrespective of the jurisdiction of the court
II. .
III. The application must be made within 1 year of the date of default of payment.

IV. The person who fails to make payment of maintenance must not have sufficient
reasonable grounds for doing so.

V. The court, if satisfied that the non-compliance of the order was without sufficient reason,
will issue a warrant of arrest against such person.
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VI. The defaulting person can be sent to imprisonment for 1 year or until he makes the
payment whichever is earlier.
VII. The defaulting cannot put any unreasonable condition for payment of such money. For
instance, if the person asks his wife to stay with him and she has reasonable cause to
deny, he cannot evade payment saying the condition was not fulfilled.

In Ram Bilas v. Bhagwati Devi the court laid down the rule that for recovery of one year’s
maintenance, the person is sentenced to one month’s imprisonment; for one month’s accrued
maintenance, the imprisonment shall be of one week. The rule does not bind other courts as it
was merely an obiter but, however, the spirit was to set a fixed system for non-payment of
maintenance amount.