M.A.

, CRIMINOLOGY AND
CRIMINAL JUSTICE
ADMINISTRATION
First Year – Non-Semester

MCCJN - 13

CRIMINAL PROCEDURES AND

EVIDENCE

TAMIL NADU OPEN UNIVERSITY

SCHOOL OF CRIMINOLOGY AND
CRIMINAL JUSTICE ADMINISTRATION
577, ANNA SALAI, SAIDAPET, CHENNAI – 15
JANUARY 2022
JANUARY 2022

Course Writer:

Dr.Anantharamakrishnan Senthivel ,M.Sc., PhD.,

Assistant Professor
School of Criminology and Criminal Justice Administration
Tamil Nadu Open University
577, Anna Salai, Saidapet - 600015
Chennai ,Tamil Nadu.

© School of Criminology and Criminal Justice Administration

Tamil Nadu Open University

All rights are reserved. No part of this publication may be reproduced or

transmitted in any form without a written permission from Tamil Nadu
Open University 577, Anna Salai, Saidapet, Chennai-600015.

www.tnou.ac.in
MCCJN – 13 – CRIMINAL PROCEDURES AND EVIDENCE

Syllabus

BLOCK 1 Origin of Criminal Procedure

UNIT – 1 Definitions under Code of Criminal Procedure, 1973 –

Hierarchical organization of judiciary in India

UNIT – 2 Constitution of criminal courts and officers –

Jurisdiction and powers of criminal courts – Death
penalty.

UNIT – 3 Court of Sessions – Judicial magistrates – Executive

magistrates – hierarchy of courts in India.

UNIT – 4 Public Prosecutors – Informal courts (Nyaya

Panchayat and Lok Adalats) – Mobile courts – family
courts.

BLOCK 2 Pre-trial Processes

UNIT – 5 Constitutional perspectives: Articles 14, 20 and 21 –

Organization of police, prosecutor and defense
counsel

UNIT – 6 Arrest: Distinction between cognizable and non-

cognizable offences – Warrant and summons –
Absconder status – Rights of arrested persons under
Cr.P.C and Article 22 (2) of the Constitution of India

UNIT – 7 Search: General principles of search, search with and

without warrant and police search during investigation

UNIT – 8 Seizure – Constitutional aspects of validity of search

and seizure proceedings – Security: Nature and
procedures
BLOCK 3 Trial Processes

UNIT – 9 Commencement of proceedings: Complaint, inquiry,

framing of charges, form and content of charge

UNIT – 10 Bail: General principles and cancellation of bails –

Anticipatory bail – Preliminary pleas to bar trial –
Remand – Jurisdiction – Time limitations – Pleas of
autrefois acquit and autrefois convict – Fair trial –
Concept of fair trial

UNIT – 11 Presumption of innocence – Venue of trial –

Constitutional interpretation of Article 21 as a right to
speedy trial – Trial before a Court of Session

UNIT – 12 Procedural steps and substantiate rights –

Accusatorial and inquisitorial systems – Summary trial.

BLOCK 4 Evidence in Criminal Cases

UNIT – 13 Definitions – Concepts – Fact in issue – Relevant fact

– Evidence: Proved, disproved, admissibility and
relevancy

UNIT – 14 Relevant evidence in statement form: Admission

confessions, dying declarations and expert opinions

UNIT – 15 Conspiracy evidence – Approver evidence –

Presumptions of law – Presumptions of fact – Burden
of proof

UNIT – 16 Examination in-chief – Cross-examination and re-

examination – Impeaching the credit of witness

BLOCK 5 Judgements

UNIT – 17 Post-conviction orders in lieu of punishment – Appeals

– Reference and revisions
UNIT – 18 Transfer of criminal cases – Suspension of sentence –
Execution – Remission – Commutation of sentence

UNIT – 19 Disposal of property – Acquittal – Bonds – Fine –

Imprisonment – Injunction – Landmark Judgements in
Criminal Justice system.

UNIT – 20 Probation – Parole – Conditional release – Legislative

and judicial role – restorative justice – Recent trends in
sentencing.

Reference for Criminal Procedure and Evidence

1. Gaur, K. D. (2013). Criminal law: Cases and materials (7th ed.).

Gurgaon, Haryana, India: LexisNexis.

2. Hall, J. (1960). General principles of criminal law (2nd ed.).

Indianapolis: Bobbs- Merrill.

3. Nigam, R. C. (1965). Law of crimes in India. Asia Pub. House.

4. Thakore, D. (2011). Ratanlal & Dhirajlal’s the Indian Penal Code

(Act XLV of 1860) (33rd ed.). Gurgaon, Haryana, India:
LexisNexis Butterworths Wadhwa Nagpur.

5. Vibhute, K. I. (2012). P. S. A. Pillai’s criminal law (11th ed.).

Lexis Nexis.

6. Legal TextsThe Indian Evidence Act, 1860Code of Criminal

Procedure, 1973
CRIMINAL PROCEDURES AND EVIDENCE

BLOCK 1 - ORIGIN OF CRIMINAL PROCEDURE

Definitions under the Code of Criminal Procedure, 1973

In this Code, unless the context otherwise requires,

(a) "bailable offence" means an offence which is shown as bailable in the

First Schedule, or which is made bailable by any other law for the time
being in force; and "non-bailable offence" means any other offence;

(b) "charge" includes any head of charge when the charge contains more
heads than one;

(c) "cognizable offence" means an offence for which, and "cognizable

case" means a case in which, a police officer may, in accordance with
the First Schedule or under any other law for the time being in force,
arrest without warrant;

(d) "complaint" means any allegation made orally or in writing to a

Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but
does not include a police report.

Explanation - A report made by a police officer in a case which

discloses, after investigation, the commission of a non-cognizable
offence shall be deemed to be a complaint; and the police officer by
whom such report is made shall be deemed to be the complainant;

(e) "High Court" means, -

(i) in relation to any State, the High Court for that State;

(ii) in relation to a Union territory to which the jurisdiction of the

High Court for a State has been extended by law, that High Court;
(iii) in relation to any other Union territory, the highest Court of
criminal appeal for that territory other than the Supreme Court
of India;

(f) "Indian" means the territories to which this Code extends;

(g) "inquiry" means every inquiry, other than a trial, conducted under
this Code by a Magistrate or Court;

(h) "investigation" includes all the proceedings under this Code for
the collection of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorized by a Magistrate
in this behalf;

(i) "judicial proceeding" includes any proceeding in the course of

which evidence is or may be legally taken on oath;

(j) "local jurisdiction", in relation to a Court or Magistrate, means the

local area within which the Court or Magistrate may exercise all
or any of its or his powers under this Code;

(k) "metropolitan area" means the area declared, or deemed to be

declared, under section 8, to be a metropolitan area;

(l) "non-cognizable offence" means an offence for which, and "non-

cognizable case" means a case in which, a police officer has no
authority to arrest without warrant;

(m) "notification" means a notification published in the Official

Gazette;

(n) "offence" means any act or omission made punishable by any law
for the time being in force and includes any act in respect of which
a complaint may be made under section 20 of the Cattle-trespass
Act, 1871( 1 of 1871);

(o) "officer in charge of a police station" includes, when the officer in

charge of the police station is absent from the station-house or
 unable from illness or other cause to perform his duties, the police
officer present at the station-house who is next in rank to such
officer and is above the rank of constable or, when the State
Government so directs, any other police officer so present;

(p) "place" includes a house, building, tent, vehicle and vessel;

(q) "pleader", when used with reference to any proceeding in any

Court, means a person authorized by or under any law for the time
being in force, to practice in such Court, and includes any other
person appointed with the permission of the Court to act in such
proceeding;

(r) "police report" means a report forwarded by a police officer to a

Magistrate under sub-section (2) of section 173;

(s) "police report" means a report forwarded by a police officer or

specially by the State Government, to be a police station, and
includes any local area specified by the State Government in this
behalf;

(t) "prescribed" means prescribed by rules made under this Code;

(u) "Public Prosecutor" means any person appointed under section 24,
and includes any person acting under the directions of a Public
Prosecutor;

(v) "sub-division" means a sub-division of a district;

(w) "summons-case" means a case relating to an offence, and not

being a warrant-case;

(x) "warrant-case" means a case relating to an offence punishable

with death, imprisonment for life or imprisonment for a term
exceeding two years;
 (y) words and expressions used herein and not defined but defined in
the Indian Penal Code (45 of 1860) have the meanings
respectively assigned to them in that Code.

Hierarchical organization of judiciary in India

Legal systems are among the most imperative requisites of a country to

ensure that it remains a safe & peaceful place to live. The Indian legal
system hierarchy or simply saying the Indian Judicial system is partially
the British legal system’s continuation, the system which was established
in the mid era of the 19th century by English government.

The Indian Judicial system has a systematic arrangement of the all types of
courts that exist and run in India currently. Broadly saying this gets divided
into 3 levels. The Indian legal system hierarchy is briefly explicated as
below in chronological order means starting with the highest level court of
the hierarchy and ending with the lowest one:

Supreme Court – In Indian legal system hierarchy, the Supreme Court is

at the top level of the Indian court system. The Supreme Court is the
utmost authority holder court system in India whose decision can’t be
challenged by any other Indian court. If someone wishes to challenge it,
he/she has to file a letter to President or Prime Minister of India to do so.

Indian legal system has only one Supreme Court and that is in Delhi, the
national capital of India. The Supreme Court came into existence in the
year 1950 on 28th of January; soon 2 days after the constitution of India
came into continuation. Ever since that time, this highest court has been in
Delhi.

State Courts / High Court – The State Courts come direct under the
Supreme Court of India in the Indian legal system hierarchy. Every state of
India is provided with a court that has the utmost power of judicial system
employed in that state only. This state court is termed as High Court and is
usually in the capital of that particular state. The final decisions for that
state’s cases are judged by that court and only Supreme Court has the
power & authority to challenge the verdicts that come from High Court
decisions.

District Court – Every state of India further incorporates some lower

courts that are lower in terms of power and authority than the High Court
of that state. These courts are in terms of district means every district of a
state has a court that employs maximum government judicial power in that
district only. The district court is further sub categorized into 3 parts as
below –

  Session Courts – These are a part of District Court with high

power. These employ maximum power in a district.

  Lower Courts – These are the lower level courts and most of the
times, all the cases of nearby areas are sent to these courts.

  Panchayat – These are a kind of courts basically but in villages

where a jury of 5 (or more) people of that village is appointed
head and they take care of the local issues. If some issue is beyond
their power, those are sent to Lower Court then.
Constitution of Criminal Courts and Offices

Classes of Criminal Courts

Section 6 of the Code of Criminal Procedure (Cr. P.C.)– Besides the

High Courts and the Courts constituted under any law, other than this
Code, there shall be, in every State, the following classes of Criminal
Courts, namely:-

1. Courts of Session;

2. Judicial Magistrates of the first class and, in any metropolitan

area, Metropolitan Magistrates;

3. Judicial Magistrates of the second class; and

4. Executive Magistrates.

It may be noted that the classes of Criminal Courts mentioned in this

section are besides the High Courts and the Courts constituted under any
law, other than this Code. Thus, the Criminal Courts are:

1. High Courts

2. Courts constituted under any Law other than this Code

3. Courts of Session

4. Judicial Magistrates of the First Class

5. Metropolitan Magistrates in any metropolitan area

6. Judicial Magistrates of the Second Class

7. Executive Magistrates

8. Special Executive Magistrate

Courts of Session (Section 9 Cr. P.C.)

(1) – The State Government shall establish a Court of Session for

every sessions division.
 (2) – Every Court of Session shall be presided over by a Judge, to be
appointed by the High Court.

(3) – The High Court may also appoint Additional Sessions Judges
and Assistant Sessions Judges to exercise jurisdiction in a Court of
Session.

Courts of Judicial Magistrates (Section 11 Cr. P.C.)

(1) – In every district (not being a metropolitan area), there shall be

established as many Courts of Judicial Magistrates of the first
class and of the second class and at such places, as the State
Government may after consultation with the High Court, by
notification specify.

(2) – The presiding officers of such Courts shall be appointed by the

High Court.

Chief Judicial Magistrate and Additional Chief Judicial Magistrate,

etc. (Section 12 Cr P.C.)

(1) – In every district (not being a metropolitan area), the High Court
shall appoint a Judicial Magistrate of the first class to be the Chief
Judicial Magistrate.

(2) – The High Court may appoint any Judicial Magistrate of the first
class to be an Additional Chief Judicial Magistrate, and such
Magistrate shall have all or any of the powers of a Chief Judicial
Magistrate under this Code or under any other law for the time
being in force as the High Court may direct.

Subordination of Judicial Magistrates (Section 15 Cr. P.C.)

(1) – Every Chief Judicial Magistrate shall be subordinate to the

Sessions Judge; and every other Judicial Magistrate shall, subject
to the general control of the Sessions Judge, be subordinate to the
Chief Judicial Magistrate.
Courts of Metropolitan Magistrates (Section 16 Cr. P.C.)

(1) – In every metropolitan area, there shall be established as many

Courts of Metropolitan Magistrates, and at such places, as the
State Government may, after consultation with the High Courts,
by notification, specify.

(2) – The presiding officers of such Courts shall be appointed by the

High Court.

(3) – The jurisdiction and powers of every Metropolitan Magistrate

shall extend throughout the metropolitan area.

Chief Metropolitan Magistrate and Additional Chief Metropolitan

Magistrate (Section 17 Cr. P.C.)

(1) – The High Court, shall in relation to every metropolitan area

within its local jurisdiction appoint a Metropolitan Magistrate to
be the Chief Metropolitan Magistrate for such metropolitan area.

(2) – The High Court may appoint any Metropolitan Magistrate to be

an Additional Chief Metropolitan Magistrate, and such Magistrate
shall have all or any of the powers of a Chief Metropolitan
Magistrate under this Code or under any other law for the time
being in force as the High Court may direct.

Subordination of Metropolitan Magistrates (Section 19 Cr. P.C.)

(1) – The Chief Metropolitan Magistrate shall be subordinate to the

Sessions Judge; and every other Metropolitan Magistrate shall
subject to the general control of the Sessions Judge, be
subordinate to the Chief Metropolitan Magistrate.

(2) – The High Court may, for the purpose of this Code, define the
extent of subordination, if any, of the Additional Chief
Metropolitan Magistrates to the Chief Metropolitan Magistrate.
 (3) – The Chief Metropolitan Magistrate may, from time to time,
make rules or give special orders, consistent with this Code, as the
distribution of business among the Metropolitan Magistrates and
as to the allocation of business to an Additional Chief
Metropolitan Magistrate.

Executive Magistrates (Section 20 Cr. P.C.)

(1) – In every district and in every metropolitan area, the State

Government may appoint as many persons as it thinks fit to be
Executive Magistrates and shall appoint one of them to be the
District Magistrate.

(2) – The State Government may appoint any Executive Magistrate to

be an Additional District Magistrate and such Magistrate shall
have such of the powers of a District Magistrate under this Code
or under any other law for the time being in force as may be
directed by the State Government.

Special Executive Magistrates (Section 21 Cr. P.C.)

The State Government may appoint, for such term as it may think fit,
Executive Magistrates, to be known as Special Executive Magistrates, for
particular areas or for the performance of particular functions and confer on
such Special Executive Magistrates such of the powers as are conferrable
under this Code on Executive Magistrates, as it may deem fit.

Jurisdictions

The following are the jurisdictions and powers which the High Courts
enjoy all over the country.

1. Original jurisdiction:

The Constitution of India does not give a detailed description of the

original jurisdiction of the High Court. It is accepted that the original
jurisdiction of a High Court is exercised by issue of Writs to any person or
authority including Government.
Article 226 of the Constitution vests in the High Court the power to issue
writs for the restoration of fundamental rights. It reads, “Notwithstanding
anything in Article 32, every High Court shall have power, throughout the
territories in relation to which it exercises jurisdiction, to issue to any
person or authority, including in appropriate cases any Government, within
those territories directions, orders or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them for the enforcement of any of the rights conferred by part III and
for any other purpose”.

This power of the High Court does not derogate the similar power
conferred on the Supreme Court in Article 32 of the Constitution.

The original jurisdiction of the High Courts also extends to the matters of
admiralty, probate, matrimonial and contempt of Court cases. The High
Courts have also full powers to make rules to regulate their business in
relation to the administration of justice. It can punish for its own contempt.

2. Appellate Jurisdiction

The appellate jurisdiction of High Court extends to both civil and criminal
cases. In civil cases, its jurisdiction extends to cases tried by Courts of
Munsifs and District judges. In the criminal cases it extends to cases
decided by Sessions and Additional Sessions Judges.

Thus, the jurisdiction of the High Court extends to all cases under the State
or federal laws.

Its jurisdiction can be enlarged by the Parliament and the State Legislature.
The Parliament exercises exclusive power to make laws touching the
jurisdiction and power of all Courts with respect to the subjects on which it
is competent to legislate. It can also legislate on subjects enumerated in the
Concurrent List.

Likewise a State Legislature has power to make laws touching the

jurisdictions and powers of all Courts within the Stare with respect to all
subjects enumerated in the State List and the Concurrent List. But as
regards the subjects in the Concurrent List the Union law prevails in case
of conflict.
Powers

Power of Superintendence:

A High Court has also the power of superintendence over all Courts and
Tribunals except those dealing with the armed forces functioning in the
State. In exercise of this power it may:-

(i) Call for return from such Courts.

(ii) May issue general rules and prescribe forms for regulating the
practice and proceedings of such Courts, and

(iii) Prescribe forms in which books and accounts are being kept by the
Officers of any Court.

This power has made the High Court responsible for the entire
administration of Justice in the State. It is both judicial as well as
administrative in nature. The Constitution does not place any restriction on
its power of superintendence over the subordinate Courts. It may be noted
the Supreme Court has no similar power vis-a-vis the High Court.

Power of Transfer of Cases to High Court:

If the High Court is satisfied that a case pending in a Court subordinate to it

involves a substantial question of law as to the interpretation of the
Constitution the determination of which is necessary for the disposal of the
case, it shall withdraw the case and may :-

(a) Either dispose of it. Or

(b) Determine the said question of law and return the case to the

Court from whom it had been withdrawn together with a copy of

its judgment on such question and the said Court shall on receipt
thereof proceed to dispose of the case in conformity with such
judgment.
 By vesting these powers in the High Court the framers of our
Constitution have safeguarded the possible multiplicity of
constitutional interpretation at the level of subordinate Court.

The High Court has also got ample powers to call for the records
of any case from any subordinate Court to satisfy itself about the
correctness and legality of the orders passed by the subordinate
Courts.

The High Court may either be moved by any interested party to

exercise its power of revision. Even without being so moved, it
can suo moto call for records and pass necessary order.

Control over its Officers and Employees:

The High Court has complete control over its officers and employees.
Appointments of officers and servants are to be made by the Chief Justice
or such other Judge or Officer of the High Court as the Chief Justice may
direct.

However, the Governor of the State may by rule require that in such cases
as may be specified in the rule no person not already attached to the Court
shall be appointed to any office connected with the Court except after
consultation with the State Public Service Commission.

Subject to any of the Act of the State Legislature, the conditions of service
of those officers and servants of the High Court are to be such as may be
prescribed by rules made by the Chief Justice of the High Court or by some
other Judge or Officer of the High Court authorised by the Chief Justice to
be make such rules.

The power of appointment also includes powers to suspend or dismiss. The

administrative expenses of the High Court, including all salaries,
allowances and pensions payable to its officers, are charged upon the
Consolidated Fund of the State
Finally, a High Court is also a Court of Record. Its decision will be binding
on its subordinate Courts. Its proceedings and decisions have evidential
value and they cannot be questioned by the subordinate Courts. Further, it
can punish for contempt of itself.

Some High Courts exercise jurisdiction over the Union territories. To make
the exercise of this jurisdiction effective, the restrictions are imposed on
the power of the State Legislatures to make law with respect to that
jurisdiction. When a High Court exercises jurisdiction in relation to a
Union territory, the Legislature of that State has no power to increase,
restrict or abolish that jurisdiction of the High Court.

Court of Sessions

The State Government shall establish a Court of Session for every sessions
division.

Every Court of Session shall be presided over by a Judge, to be appointed

by the High Court.

The High Court may also appoint Additional Sessions Judges and
Assistant Sessions Judges to exercise jurisdiction in a Court of Session.

The Sessions Judge of one sessions division may be appointed by the High
Court to be also an Additional Sessions Judge of another division, and in
such case he may sit for the disposal of cases at such place or places in the
other division as the High Court may direct.

Where the office of the Sessions Judge is vacant, the High Court may make
arrangements for the disposal of any urgent application which is, or may
be, made or pending before such Court of Session by an Additional or
Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions
Judge, by a Chief Judicial Magistrate, in the sessions division; and every
such Judge or Magistrate shall have jurisdiction to deal with any such
application.
The Court of Sessions shall ordinarily hold its sitting at such place or
places as the High Court may, by notification, specify; but, if, in any
particular case, the Court of Session is of opinion that it will tend to the
general convenience of the parties and witnesses to hold its sittings at any
other place in the sessions division, it may, with the consent of the
prosecution and the accused, sit at that place for the disposal of the case or
the examination of any witness or witnesses therein.

Judicial magistrates

The High Court may, if requested by the Central or State Government so to

do, confer upon any person who holds or has held any post under the
Government all or any of the powers conferred or conferrable by or under
this Code on a Judicial Magistrate of the first class or of the second class,
in respect to particular cases or to particular classes of cases, in any local
area, not being a metropolitan area; Provided that no such power shall be
conferred on a person unless he possesses such qualification or experience
in relation to legal affairs as the High Court may, by rules, specify. Such
Magistrates shall be called Special Judicial Magistrates and shall be
appointed for such term, not exceeding one year at a time, as the High
Court may, by general or special order, direct. The High Court may
empower a Special Judicial Magistrate to exercise the powers of a
Metropolitan Magistrate in relation to any metropolitan area outside his
local jurisdiction.

The High Court may, if requested by the Central or State Government so to

do, confer upon any person who holds or has held any post under the
Government all or any of the powers conferred or conferrable by or under
this Code on a Judicial Magistrate of the first class or of the second class,
in respect to particular cases or to particular classes of cases, in any local
area, not being a metropolitan area.
Provided that no such power shall be conferred on a person unless he
possesses such qualification or experience in relation to legal affairs as the
High Court may, by rules, specify.

Such Magistrates shall be called Special Judicial Magistrates and shall be

appointed for such term, not exceeding one year at a time, as the High
Court may, by general or special order, direct.

The High Court may empower a Special Judicial Magistrate to exercise the
powers of a Metropolitan Magistrate in relation to any metropolitan area
outside his local jurisdiction.

Executive Magistrates

In every district and in every metropolitan area. The State Government

may appoint as many persons as it thinks fit to be Executive Magistrates
and shall appoint one of them to be the District Magistrate.

The State Government may appoint any Executive Magistrate to be an

Additional District Magistrate, and such Magistrate shall have the powers
of a District Magistrate under this Code or under any other law for the time
being in force as may be directed by the State Government.

Whenever, in consequence of the office of a District Magistrate becoming

Vacant, any officer succeeds temporarily to the executive administration of
the district, such officer shall, pending the orders of the State Government,
exercise all the powers and perform all the duties respectively conferred
and imposed by this Code on the District Magistrate.

The State Government may place an Executive Magistrate in charge of a

sub-division and may relieve him of the charge as occasion requires; and
the Magistrate so placed in charge of a sub-division shall be called the Sub-
divisional Magistrate.

4A. The State Government may, by general or special order and subject to
such control and directions as it may deem fit to impose, delegate its
powers under Sub-Section (4) to the District Magistrate.
Nothing in this section shall preclude the State Government from
conferring. Under any law for the time being in force, on a Commissioner
of Police, all or any of the powers of an Executive Magistrate in relation to
a metropolitan area.

Public Prosecutor

Legal provisions regarding public prosecutors under section 24 of the Code

of Criminal Procedure, 1973.

Section 24 of the Code of Criminal Procedure provides that:

(1) For every High Court, the Central Government or the State
Government shall, after consultation with the High Court, appoint
a public prosecutor and may also appoint one or more additional
public prosecutors, for conducting in such Court, any prosecution,
appeal or other proceeding on behalf of the Central Government
or State Government, as the case may be.

(2) The Central Government may appoint one or more public

prosecutors for the purpose of conducting any case or class of
cases in any district, or local area.

(3) For every District, the State Government shall appoint a public
prosecutor and may also appoint one or more Additional Public
Prosecutors for the district. However, the Public Prosecutor or
Additional Public Prosecutor appointed for one district may be
appointed also to be a public prosecutor or an Additional Public
Prosecutor, as the case may be, for another district.

(4) The District Magistrate, in consultation with the Sessions Judge,

prepare a panel of names of persons, who are, in his opinion fit to
be appointed as Public Prosecutors or Additional Public
Prosecutors for the district.

(5) No person shall be appointed by the State Government as the

Public Prosecutor or Additional Public Prosecutor for the district
unless his name appears in the panel of names prepared by the
District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a
State there exists a regular cadre of prosecuting officers, the State
Government shall appoint a public prosecutor or an Additional
Public Prosecutor only from among the persons constituting such
cadre. However, where, in the opinion of the State Government,
no suitable person is available in such cadre for such appointment
that Government may appoint a person as public prosecutor or
Additional Public Prosecutor, as the case may be, from the panel
of names prepared by the District Magistrate under sub-section
(4).

Explanation:

For the purposes of this sub-section,

(a) “Regular Cadre of Prosecuting Officers” means a Cadre of

Prosecuting Officers which includes therein the post of a Public
Prosecutor, by whatever name called, and which provides for
promotion of Assistant Public Prosecutors, by whatever name
called, to that post;

(b) “Prosecuting Officer” means a person by whatever name called,

appointed to perform the functions of a Public Prosecutor, an
Additional Public Prosecutor or an Assistant Public Prosecutor
under this Code.

(7) A person shall be eligible to be appointed as a Public Prosecutor

or an Additional Public Prosecutor under sub-section (1) or sub-
section (2) or sub-section (3) or sub-section (6), only if he has
been in practice as an advocate for not less than seven years.

(8) The Central Government or the State Government may appoint,

for the purposes of any case or class of cases, a person who has
been in practice as an advocate for not less than ten years as a
special public prosecutor.
 (9) For the purposes of sub-section (7) and sub-section (8), the period
during which a person has been in practice as a pleader, or has
rendered (whether before or after the commencement of this
Code) service as a Public Prosecutor or as an Additional Public
Prosecutor or Assistant Public Prosecutor or other Prosecuting
Officer, by whatever name called, shall be deemed to be the
period during which such person has been in practice as an
advocate.

In metropolitan area, consultation for preparation of panel can be done only

with Metropolitan Sessions Judge of the concerned area.

Public Prosecutor can direct another to conduct the case and he will be
public prosecutor under the Code.

Government Pleader (Home) who is neither public prosecutor nor Special

Public Prosecutor cannot represent the State in a criminal proceeding.

Assistant Public Prosecutors are not eligible as Public Prosecutors unless

they have requisite qualifications as specified in Section 24(7) of the Code.

Informal courts (Nyaya Panchayat and Lok Adalats)

THE NYAYA PANCHAYATS BILL, 2009 A Bill to provide for the

establishment of Nyaya Panchayats, at the level of every Village Panchayat
or a group of Village Panchayats as the case may be depending on
population and area, as a forum for resolution of disputes with peoples’
participation directed to providing a system of fair and speedy resolution of
disputes arising in rural areas; access to justice, both civil and criminal, to
the citizens at the grass-roots level, and for matters connected therewith or
incidental thereto. Whereas Article 39A of the Constitution mandates that
the opportunities for securing justice are not denied to any citizen by
reason of social, economic or other disabilities in the administration of
justice; And, whereas establishment of a decentralized dispute redressal
system through mediation, conciliation and compromise at the grass-root
level requires to be institutionalized with the involvement of the people
living in that particular area; And, whereas there exists constitutionally -
mandated need for some standards in the provisions relating to Nyaya
Panchayats under the respective laws of the States; And, whereas it is
considered expedient to assimilate and codify the laws and rules governing
the establishment of Nyaya Panchayats at the village Panchayat level
throughout India:

Composition of a Nyaya Panchayat

(1) There shall be constituted a Nyaya Panchayat for every Village

Panchayat area or a group of Village Panchayat areas depending
on the population and area, as may be notified by the State
Government.

(2) Every Nyaya Panchayat shall consist of five Panchas who shall be
elected by the voters enrolled in the voter’s list of that Village
Panchayat or group of Village Panchayats, in the manner to be
prescribed by the State Government: Provided that seats shall be
reserved for the Scheduled Castes and the Scheduled Tribes in
every Nyaya Panchayat and the number of seats so reserved shall
bear, as nearly as may be, the same proportion to the total number
of seats to be filled by direct election in that Nyaya Panchayat as
the population of the Scheduled Castes or, the Scheduled Tribes in
the Nyaya Panchayat area bears to the total population of that area
and such seats may be allotted by rotation, as prescribed by the
State Government: Provided that as nearly as may be, fifty percent
of the total number of seats reserved for Scheduled Castes and the
Scheduled Tribes shall be reserved for women belonging to the
Scheduled Castes or, as the case may be, the Scheduled Tribes:
Provided that as nearly as may be, fifty percent of the total number
of seats to be filled by direct election in every Nyaya Panchayat
shall be reserved for women and such seats may be allotted by
rotation, as prescribed by the State Government: Provided that the
legislature of a State may make provision for reservation of seats
in the Nyaya Panchayat in favour of backward classes of citizens.
(3) Every Nyaya Panchayat shall continue for five years from the date
appointed for its first meeting and no longer and as far as
practicable, elections to the Nyaya Panchayat shall be held along
with the elections to the Village Panchayats concerned. Provided
that elections to constitute the Nyaya Panchayat shall be
completed before the expiry of its duration specified. Provided
further that in case there are no persons contesting the elections
for the post of Panchas, the Nyaya Panchayats shall be constituted
in accordance with the rules prescribed by the State Government.

(4) No Panch shall participate in any meetings or proceedings of a

Panchayat at the Village, Intermediate or District level.

(5) Every Panch shall hold the office of Nyaya Panchayat Pramukh
for a period of one year, by rotation, on the basis of seniority by
age. The eldest shall be elected in the first meeting of the Nyaya
Panchayat as the first Nyaya Panchayat Pramukh.

(6) Every dispute brought before the Nyaya Panchayat under the
provisions of this Act, shall be heard and determined by a bench
of the Nyaya Panchayat, consisting of the Nyaya Panchayat
Pramukh and two Panchas selected from amongst the Panchas of
the Nyaya Panchayat by rotation and two other persons not
otherwise disqualified from being elected as a Panch from
amongst a panel of names suggested by the parties to the dispute.

(7) Offences against women and disputes relating to custody and

maintenance of children and dependents including divorced
spouses, brought before the Nyaya Panchayat under the provisions
of this Act shall be heard and determined by a bench of the Nyaya
Panchayat, consisting of the Nyaya Panchayat Pramukh and two
elected women Panchas and two other persons not otherwise
disqualified from being elected as a Panch from amongst a panel
of names suggested by the parties to the dispute.
LOK ADALATS:

Lok Adalat or the People’s Courts, decide the dispute with utmost
expedition to arrive at a compromise or settlement on the basis of
principles of justice, equity, fair play and other legal principles. When the
Lok Adalat is not able to arrive at a compromise or settlement, the record
of the case is returned to the Court, which initially referred the case to the
Lok Adalats. The Lok Adalat is presided over by a sitting or retired judicial
officer as the chairman, with two other members, usually a lawyer and a
social worker.

Lok Adalat (people’s courts), established by the government settles dispute

through conciliation and compromise. The First Lok Adalat was held in
Chennai in 1986. Lok Adalat accepts the cases which could be settled by
conciliation and compromise, and pending in the regular courts within their
jurisdiction.

The Lok Adalat is presided over by a sitting or retired judicial officer as the
chairman, with two other members, usually a lawyer and a social worker.
There is no court fee. If the case is already filed in the regular court, the fee
paid will be refunded if the dispute is settled at the Lok Adalat. The
procedural laws, and the Evidence Act are not strictly followed while
assessing the merits of the claim by the Lok Adalat.

Main condition of the Lok Adalat is that both parties in dispute should
agree for settlement. The decision of the Lok Adalat is binding on the
parties to the dispute and its order is capable of execution through legal
process. No appeal lies against the order of the Lok Adalat.

Lok Adalat is very effective in settlement of money claims. Disputes like

partition suits, damages and matrimonial cases can also be easily settled
before Lok Adalat as the scope for compromise through an approach of
give and take is high in these cases.

Lok Adalat is a boon to the litigant public, where they can get their
disputes settled fast and free of cost.
Questions

1. Write a brief note on Informal Courts

2. Explain judicial magistrates – Executive magistrates – Public

Prosecutors

3. Elaborate Hierarchical organization of judiciary

BLOCK 2 - PRE TRIAL PROCESSES

Constitutional perspectives: Articles 14, 20 and 21

2 Main Constitutional Perspectives Regarding Criminal Procedure Code

are as follows:

(i) Article 14 of the Constitution of India: Equality before law:

Article 14 of the Constitution of India provides that the State shall not deny
to any person equality before the law or the equal protection of the laws
within the territory of India. Article 14 uses two expressions ‘equality
before law’ which implies the absence of any special privilege in favor of
individuals and the ‘equal subject of all classes to the ordinary law’ and
‘equal protection of the law’ which implies equality of treatment in equal
circumstances. However, both the expressions contain the common idea of
‘equal justice’ and mean one and the same thing of ‘equality before the
law’.

Equality before the law means that among equals the law should be equal
and should be equally administered, that like should be treated alike. The
right to sue and be sued, to prosecute and be prosecuted for the same kind
of action should be same for all citizens of full age and understanding
without distinctions of race, religion, wealth, social status or political
influence.

Law cannot make men equal and the concept of equality does not mean
absolute equality among human beings which is physically not possible to
achieve. Equality is a concept implying absence of any special privilege by
reason of birth, creed or the like in favour of any individual and also the
equal subject of all individuals and classes to the ordinary law of the land.
Law can subject their rights and obligations to equality of treatment.

In every society, there exist groups of people with distinguishing

characteristics among themselves pursuing certain ends. The principle of
equality requires that the State should take cognizance of these differences,
and, adjust its laws to enable men to achieve their ends.

The principle of equality requires that all persons subject to the State
legislation shall be treated alike under like circumstances and conditions
both in the privileges conferred and in the liabilities imposed, and, that no
one should be singled out as an object of discriminatory or hostile
legislation.

This means that the State has the power of classifying persons or groups of
persons taking their distinguishing characteristics into consideration, but
what is important is that, once a law is made, it must apply equally to
everyone within the classified group irrespective of their rank, social status,
wealth or other considerations.

The protection of Article 14 extends to both citizens and non-citizens and

to natural persons as well as legal persons such as company, association or
body of individuals. The equality before the law is guaranteed to all
without regard to race, colour or nationality.

The rule of equality is not an absolute rule and there are number of
exceptions to it. For instance, foreign diplomats are immune from the
jurisdiction of courts. Article 361 of the Indian Constitution affords
immunity to the President of India and the State Governors and they are not
answerable to any Court for the exercise and performance of the powers
and duties.

The laws made by the State for implementing the Directive Principles
contained in clause (b) or clause (c) of Article 39 cannot be challenged on
the ground that they are violative of Article 14 and they are, thus, exception
to Article 14.

Article 14 permits classification but prohibits class legislation. Class

legislation is that which makes an improper discrimination by conferring
particular privileges upon a class of persons arbitrarily selected from a
large number of persons, all of whom stand in the same relation to the
privilege granted that between whom and the persons not so favoured no
reasonable distinction or substantial difference can be found justifying the
inclusion of one and the exclusion of the other from such privilege.

Article 14 does not forbid reasonable classification of persons, objects and

transactions by the legislature for the purpose of achieving specific ends.
But classification must not be ‘arbitrary, artificial or evasive.’
Classification to be reasonable must fulfil the following two conditions:

(1) The classification must be found on an intelligible differentia

which distinguishes persons or things that are grouped together
from others left out of the group; and

(2) The differentia must have a rational relation to the object sought to
be achieved by the Act.

Equality is antithetic to arbitrariness where an act is arbitrary, it is implicit

in it that it is inequal and is therefore violative of Article 14. The principle
of reasonableness, which is an essential element of equality or non-
arbitrariness, pervades Article 14 like a brooding omnipresence. If the
classification is not reasonable and does not satisfy the two conditions
referred to above, the impugned legislation or executive action would
plainly be arbitrary and the guarantee of equality under Article 14 would be
breached.

In the State of West Bengal v. Anwar Ali Sarkar, the Supreme Court has
held that Section 5(1) of the West Bengal Special Courts Act, 1850
contravened Article 14 and was void since it conferred arbitrary power on
the Government to classify offences or cases at its pleasure. The majority
held that the procedure laid down by the Act for the trial by the Special
Courts varied substantially from the procedure laid down for the trial of
offences generally by the Criminal Procedure Code.
In Kathi Ranning Rawal v. State of Saurashtra, the Supreme Court has held
that the Saurashtra Public Safety Measures (3rd Amendment Ordinance
1949) having been passed to combat an increasing tempo of certain types
of regional crimes, the two-fold classification on the basis of types and
territory adopted therein is reasonable and valid and the degree of disparity
involved therein is in no way in excess of what the circumstances
demanded within the meaning of Article 14 of the Constitution.

In Mithu v. State of Punjab, the Supreme Court struck down Section 303 of
Indian Penal Code as unconstitutional on the ground that the classification
between persons who commit murders whilst under the sentence of the
imprisonment and those who commit murders whilst they were not under
the sentence of life imprisonment for the purpose of making the sentence of
death mandatory in the case of the former class and optional in the latter
class was not based on any rational principle based on Article 14 of the
Constitution.

In Revathi v. Union of India, the constitutional validity of Section 198(2)

of the Code of Criminal Procedure and Section 497 of the Indian Penal
Code which disables the wife from prosecuting her husband for the offence
of adultery was challenged on the ground that it was violative of Article 14
of the Constitution as under these sections, the right to prosecute the
adulterer is only given to the husband of the adultress but has not been
given to the wife of the adulterer. The Supreme Court held that there was
no discrimination based on sex and these provisions were valid.

(ii) Article 20 of the Constitution of India: Protection in Respect of

Conviction for Offences:

Article 20 of the Constitution deals with the protection in respect of

conviction for offences. It provides that:

(1) No person shall be convicted of any offence except for violation

of a law in force at the time of the commission of the act charged
as an offence, nor be subjected to a penalty greater than that which
 might have been inflicted under the law in force at the time of the
commission of the offence.

(2) No person shall be prosecuted and punished for the same offence
more than once.

(3) No person accused of any offence shall be compelled to be a

witness against himself.

The first part of clause (1) of Article 20 provides that ‘no person shall be
convicted of any offence except for violation of a law in force at the time
of the commission of the act charged as an offence.’ This means that if an
act is not an offence at the date of its commission, it cannot be an offence
at the date subsequent to its commission.

The protection provided by clause (1) is available only against conviction

or sentence for a criminal offence under ex post facto law and not against
the trial. The protection of clause (1) of Article 20 cannot be claimed in
case of preventive detention or demanding security from a person.

The second part of clause (1) of Art. 20 protect a person from ‘a penalty
greater than that which he might have been subjected to at the time of the
commission of the offence’. Accordingly, the enhanced punishment should
not be applicable to the act committed earlier and punished according to
the then law. However, an ex post facto law which is beneficial to the
accused is not prohibited by clause (1) of Article 20.

The rule of beneficial construction requires that ex post facto law should be
applied to mitigate the rigorous of the previous law on the same subject and
reduce the punishment according to the latter law.

Article 20(2) of the Constitution provides protection against double

jeopardy. The clause “no person shall be prosecuted and punished for the
same offence more than once” embodies the common law rule of nemo
debet vis vexari which means that no man should be put twice in peril for
the same offence.
Under Article 20(2) the protection against double punishment is given only
when the accused has not only been prosecuted but also punished and is
sought to be prosecuted second time for the same offence. The use of the
word ‘prosecution’ limits the scope of the protection under clause (1) of
Article 20. If there is no punishment for the offence as a result of the
prosecution, clause (2) of Article 20 has no application.

Article 20(2) will have no application where punishment is not for the
same offence. Thus, if the offences are distinct the rule of double jeopardy
will not apply. In Leo Roy v. Superintendent, District Jail, it was held that
where a person was prosecuted and punished under Sea Customs Act and
was later on prosecuted under the Indian Penal Code for criminal
conspiracy, the second prosecution was not barred since it was not for the
same offence.

Likewise, clause (2) of Article 20 does not apply where the person is
prosecuted and punished for the second time and subsequent proceeding is
merely continuation of the previous proceeding.

Clause (3) of Article 20 provides that no person accused of any offence

shall be compelled to be a witness against himself. The general principle of
criminal jurisprudence is that an accused must be presumed to be innocent
till the contrary is proved. It is the duty of the prosecution to prove the
offence. The accused need not make any admission or statement against his
own free will. The right embodies in clause (3) of Article 20 contains the
following essentials:

(1) It is a right pertaining to a person who is ‘accused of an offence’.

(2) It is a protection against ‘compulsion to be a witness’.

(3) It is a protection against such compulsion relating to his ‘giving

evidence against himself’. However, he may voluntarily waive his
privilege by entering into the witness-box or by giving evidence
voluntarily on request. Request implies no compulsion; therefore,
 evidence given on request is admissible against the person giving
it. Compulsion means duress which includes threatening, beating
or imprisoning of the wife, parent or child of a person. Thus,
where the accused makes a confession without any inducement,
threat or promise, Article 20(3) does not apply.

In Nandini Satpathy v. PL. Dani, the Supreme Court has held that the
prohibitive scope of Article 20(3) goes back to the stage of police
interrogation under Section 161 of the Code of Criminal Procedure, not
commencing in Court only. Compelled testimony is not limited to physical
torture or coercion, but extends also to techniques of psychological
interrogation which cause mental torture, atmospheric pressure,
environmental coercion, tiring interrogatives, proximity, over-bearing and
intimidatory methods and the like in a person subject to such interrogation.

Art. 20(3) of the Constitution provide protection against testimonial

compulsion: ‘No person accused of any offence shall be compelled to be a
witness against himself. Formerly the expression ‘to be a witness’ was
broadly interpreted to mean ‘to furnish evidence’. But, overruling this
opinion, the Supreme Court has held in State of Bombay v. Kathikalu
Oghad, that giving thumb impression or impression of foot or palm or
fingers specimen writings or showing parts of body by way of
identification are not included in the expression ‘to be a witness’. The
blood of the accused may be taken for determination of the crime and it
does not amount to testimonial compulsion within the meaning of Article
20(3) of the Constitution. Sample of hair of accused may be taken for
comparison.

(iii) Article 21 of the Constitution: Protection of Life and Personal

Liberty:

Article 21 of the Constitution of India deals with the protection of life and
personal liberty. It provides that no person shall be deprived of his life or
personal liberty except according to procedure established by law.
The 44th amendment Act, 1978 has amended Article 359 of the
Constitution of India which now provides that the enforcement of the right
to life and liberty under Article 21 cannot be suspended by the President
Order.

In A.K. Gopalan v. State of Madras, the Supreme Court has held that
‘personal liberty’ means only liberty relating to, or concerning the person
or body of the individual and in this sense it was anthesis or physical
restraint or coercion and further limited to freedom from arrest and
detention from false imprisonment or wrongful confinement.

In Kharak Singh v. State of U.P, the Supreme Court held that the ‘personal
liberty’ was not only limited to bodily restraint or confinement to prison
only, but was used as a compendious term including within itself all the
varieties of rights which go to make up the personal liberty of a man other
than those dealt with in Article 19(1) of the Constitution.

In Maneka Gandhi v. Union of India, the Supreme Court overruled the

meaning of personal liberty given in Gopalan’s case and observed:

“The expression ‘personal liberty’ in Article 21 is of widest amplitude and

covers a variety of rights which go to constitute the personal liberty of man
and some of them have raised to the status of distinct fundamental rights
and given additional protection under Article 19.”

In Kharak Singh v. State of U.P., it was held that the expression ‘life’ was
not limited to bodily restraint or confinement to prison only but something
more than mere animal existence. The inhibition against life’s deprivation
extends to all those limits and faculties by which life is enjoyed.

The expression ‘law’ in Article 21 has been viewed in Gopalan’s case not
mere enacted piece of law but it incorporated the principles of natural
justice. Later rejecting this meaning, the Court held that the ‘law’ in Article
21 must mean a law enacted by the Legislature and not the law in the
abstract or general sense embodying the principles of natural justice.
However, in Maneka Gandhi’s case, the Supreme Court has held finally
that the word ‘law’ in Article 21 does not mean merely an enacted piece of
law but must be ‘just, fair and reasonable’ law, i.e., which embodies the
principles of natural justice.

In different cases, the Court has widened the scope of fundamental right of
life and liberty guaranteed in Article 21 by including within itself the
ancillary rights such as the right of privacy, right to travel abroad, right to
live with human dignity, right to livelihood, right to medical aid, right to
die, right to education, right to free legal aid, right against solitary
confinement, right to speedy trial, right against handcuffing, right against
inhuman treatment, right against delayed execution, right against illegal
arrest, right against custodial violence, etc.

In Kishore Singh v. State of Rajasthan the Supreme Court held that the use
of ‘third degree’ method by police is violation of Article 21. The Court also
held that the punishment of solitary confinement and putting bar fetters on
the prisoners in jail must be regarded as barbarous and against human
dignity and violative of Articles 21, 19 and 14 of the Constitution.

In Prern Shankar v. Delhi Administration, the Supreme Court held that

handcuffing is prima facie inhuman and, therefore, unreasonable, is
overharsh and at the first flush, arbitrary. Absent fair procedure and
objective monitoring, to inflict ‘irons’ is to resort to zoological strategies
repugnant to Article 21.

In Hussainara Khatoon (No. 1) v. Home Secretary, State of Bihar, the

Supreme Court has held that ‘right to a speedy trial’ a fundamental right is
implicit in the guarantee of life and personal liberty enshrined in Article 21
of the Constitution.

In Suk Das v. Union Territory of Arunachal Pradesh/ the Court has held
that free legal aid at the State cost is a fundamental right of a person
accused of an offence and this right is implicit in the requirement of
reasonable, fair and just procedure prescribed by Article 21.
In Babu Singh v. State of U.P, it was held that refusal to grant bail in a
murder case without reasonable ground would amount to deprivation of
personal liberty under Article 21.

Arrest

Chapter five of the Code of Criminal Procedure, 1973 deals with the arrest
of persons. Section 41 is the main section providing for situations when
Police may arrest without warrant. It reads as follows: “41. When police
may arrest without warrant.-

(1) Any police officer may without an order from a Magistrate and
without a warrant, arrest any person

a) who has been concerned in any cognizable offence, or against

whom a reasonable complaint has been made or credible
information has been received, or a reasonable suspicion
exists, of his having been so concerned; or

b) who has in his possession without lawful excuse, the burden

of proving which excuse shall lie on such person, any
implement of house-breaking; or

c) who has been proclaimed as an offender either under this

Code or by order of the State Government; or

d) in whose possession anything is found which may reasonably

be suspected to be stolen property and who may reasonably
be suspected of having committed an offence with reference
to such thing; or

e) who obstructs a police officer while in the execution of his

duty, or who has escaped, or attempts to escape, from lawful
custody; or

f) who is reasonably suspected of being a deserter from any of

the Armed Forces of the Union; or
 g) who has been concerned in, or against whom a reasonable
complaint has been made, or credible information has been
received, or a reasonable suspicion exists, of his having been
concerned in, any act committed at any place out of India
which, if committed in India, would have been punishable as
an offence, and for which he is, under any law relating to
extradition, or otherwise, liable to be apprehended or detained
in custody in India; or

h) who, being a released convict, commits a breach of any rule

made under sub-section (5) of section 356; or

i) for whose arrest any requisition, whether written or oral, has

been received from another police officer, provided that the
requisition specified the person to be arrested and the offence
or other cause for which the arrest is to be made and it
appears there from that the person might lawfully be arrested
without a warrant by the officer who issued the requisition.

2. Any officer in charge of a police station may, in like manner,

arrest or cause to be arrested any person, belonging to one or more
of the categories of persons specified in section 109 or section
110.”

1.2 Section 42 specifies yet another situation where a police officer can
arrest a person. According to this section if a person commits an offence in
the presence of a police officer or where he has been accused of
committing a non-cognizable offence and refuses, on demand being made
by a police officer to give his name and residence or gives false name or
residence, such person may be arrested but such arrest shall be only for the
limited purpose of ascertaining his name and residence. After such
ascertaining, he shall be released on executing a bond with or without
sureties, to appear before a magistrate if so required. In case the name and
residence of such person cannot be ascertained within 24 hours from the
date of arrest or if such person fails to execute a bond as required, he shall
be forwarded to the nearest magistrate having jurisdiction.

Distinction between cognizable and non-cognizable offences

Cognizable and non-cognizable offences cognizable offences have been

defined in Criminal Procedure Code as follows;

Cognizable Offence

 Cognizable offence means an offence for which, and `cognizable

case' means a case in which, a police officer may, in accordance
with the First Schedule or under any other law for the time being
in force, arrest without warrant.

 Cognizable offenses are those offenses which are serious in

nature. Example- Murder, Rape, Dowry Death, Kidnapping, Theft,
Criminal Breach of Trust, Unnatural Offenses.

 Section 154 of CrPc provides that under a cognizable offense or

case, The Police Officer has to receive the First Information
Report (FIR) relating to the cognizable offense, which can be
without the Magistrate’s permission and enter it in the General
Diary and immediately start the investigation.

 If a Cognizable offense has been committed, a Police Officer can

investigate without the Magistrate’s permission.

Non Cognizable offence

 A non-cognizable offence has been defined in Criminal Procedure

Code as follows, "`non-cognizable offence' means an offence for
which, and `non-cognizable case' means a case in which, a police
officer has no authority to arrest without warrant".

 Non-Cognizable offenses are those which are not much serious in

nature. Example- Assault, Cheating, Forgery, Defamation.
  Section 155 of CrPc provides that in a non-cognizable offense or
case, the police officer cannot receive or record the FIR unless he
obtains prior permission from the Magistrate.

 Under a Non-Cognizable offense/case, in order to start the

investigation, it is important for the police officer to obtain the
permission from the Magistrate.

Warrant and summons

A Summons is a process issued by a Court, calling upon a person to appear

before a Magistrate. It is used for the purpose of notifying an individual of
his legal obligation to appear before the Magistrate as a response to a
violation of the law. It is addressed to a defendant in a legal proceeding. the
summons will announce to the person to whom it is directed that a legal
proceeding has been started against that person, and that a file has been
started in the court records. The summons announces a date and time on
which the person must appear in court.

A person who is summoned is legally bound to appear before the court on

the given date and time. Willful disobedience is liable to be punished under
Section 174 of IPC. It is a ground for contempt of court. As per Section 61,
every summons issued by a Court under this Code shall be in writing and
in duplicate. It must be signed by the presiding officer of the Court or by
such other officer as the High Court may, from time to time, by rule direct.
It must also bear the seal of the Court.

The summons should contain adequate particulars such as the date, time,
and place, of the offence charged. It should also contain the date, time, and
place where the summoned person is supposed to appear. The standard
format of a summons is given in Form 1 of Second schedule. As per
Section 205, a magistrate issuing the summons may permit the accused to
appear by his lawyer if he sees reason to do so.
Warrant

A written order issued by a judicial officer or other authorized person

commanding a law enforcement officer to perform some act incident to the
administration of justice. Warrant is used to bring persons to court who
have ignored a subpoena or a court appearance. A warrant of arrest is a
written authority given by a competent magistrate for the arrest of a person.
It is a more drastic step than the issue of a summons. It is addressed to a
person, usually a police officer, to apprehend and produce the offender in
front of the court.

Essential Elements of a valid warrant -

1. The warrant must clearly mention the name and other particulars
of the person to be arrested. As per Section 70(1), every warrant
of arrest shall be in writing. It must be signed by the presiding
officer of the court and must bear the seal of the court. As per
section 70(2), a warrant remains in force until it is canceled or is
executed. Normally, Form 2 of Second schedule is used to write a
warrant.

2. It must show the person to whom the authority to arrest has been
given. As per Section 72, a warrant is normally directed to one or
more police officers but, if necessary, the court may direct it to
any other person or persons. Further, section 73 provides that a
magistrate may direct a warrant to any person within his
jurisdiction for the arrest of any escaped convict, proclaimed
offender, or of any person who is accused of a non-bailable
offence and is evading arrest.

3. It may include a direction that if the person arrested under the

warrant executes a bond and gives security for his attendance in
court, he shall be released. Warrant with such a direction is called
as bailable warrant of arrest.

4. It must clearly specify the offence.

It is mandatory to present the Accused before the court. In the case of IPC
420 IPC, is a major offence, non-bailable, and cognisible ( police can arrest
without warrant ), punishable with imprisonment for 7 years. but if the
investigation is over you should take an undertaking and seek bail.

Absconder status

When a person is hiding from his place of residence so as to frustrate the

execution of a warrant of arrest, he is said have absconded. A person may
hide within his residence or outside away from his residence. If a person
comes to know about the issuance of a process against him or if he
anticipates such a process and hides or quits the country, he is said to have
absconded. In Kartary vs State of UP, 1994, All HC held that when in
order to evade the process of law a person is hiding from (or even in) his
place of residence, he is said to abscond. A person is not said to abscond
merely when he has gone to a distant place before the issuance of a
warrant. Similarly, it is necessary that the person is hiding himself and it is
not sufficient that an inspector is unable to find him.

Normally, if a person fails to appear before the court even after being
served a summons, the court issues a warrant of arrest. However, if the
person absconds to avoid the arrest, the drastic step of Proclamation for
Persons Absconding needs to be taken, which is described in Section 82.

Proclamation for person absconding (Section 82(1)) –

If the court has reason to believe that a person has absconded to avoid the
execution of his arrest warrant, the court may publish a written
proclamation requiring such person to appear before it at the specified
place and time. The date and time of appearance must not be less than
thirty days from the date of proclamation.

Procedure for Publication of the Proclamation (Section 82(2)) –

As per section 82(2), the proclamation must be read in some conspicious

place of the town or village in which the person resides. It shall also be
affixed to some conspicuous part of the house in which the person resides
or to some conspicuous place of the town or village. Further, a copy of the
same must also be affixed to some conspicuous part of the court house. The
court may also direct a copy of the proclamation to be published in a daily
newspaper circulating in the place is which such person ordinarily resides.

The terms of Section 82 are mandatory and a proclamation cannot be

issued without first issuing a warrant of arrest. Therefore, as held
in Bishnudayal vs Emperor AIR 1943, if there is no authority to arrest,
the issuing of proclamation would be illegal.

Consequences of Proclamation

Section 83 - Attachment of property of person absconding –

The publication of proclamation in accordance with the procedure

described in section 82, is the last of the steps taken to produce a person
before the court. If the person still fails to appear before the court, Section
83 empowers the court to attach the property of the person who is
absconding at any time. The court must record the reasons for doing so.
The property can be movable or immovable. The property can be any
property within the district or even outside the district of the District
magistrate of the other district endorses the proclamation.

Further, if, at the time of making proclamation, the court is satisfied that
the person is about to dispose of his property or is about to move his
property out of the jurisdiction of the court, it may order the attachment of
the property simultaneously with the issue of proclamation.

If the property to be attached is a debt or is movable property, the

attachment is done either by seizure, by the appointment of a receiver, by
an order ins writing prohibiting the deliver of sch property to the
proclaimed person or to anyone on his behalf. Court can also use any one
or more of these modes as it thinks fit. If the property is immovable, it can
be attached by taking possession, by appointing a receiver, by an order
prohibiting the payment of rent to the proclaimed persons or by any or all
of these methods.
Section 84 provides a means to protect the interests of any person other
than the proclaimed person in the attached property. Any such person who
has an interest in the attached property can claim it within six months from
the date of attachment on the ground that the claimant has an interest in the
property and the interest is not liable to be attached under section 83. The
claim shall be inquired into and may be allowed or disallowed in whole or
in part.

(1) If any claim is preferred to, or objection made to the attachment

of, any property attached under section 83, within six months from
the date of such attachment, by any person other than the
proclaimed person, on the ground that the claimant or objector has
an interest in such property, and that such interest is not liable to
attachment under section 83, the claim or objection shall be
inquired into, and may be allowed or disallowed in whole or in
part:

Provided that any claim preferred or objection made within the

period allowed by this sub-section may, in the event of the death
of the claimant or objector, be continued by his legal
representative.

(2) Claims or objections under sub-section (1) may be preferred or

made in the Court by which the order of attachment is issued, or,
if the claim or objection is in respect of property attached under an
order endorsed under sub-section (2) of section 83, in the Court of
the Chief Judicial Magistrate of the district in which the
attachment is made.

(3) Every such claim or objection shall be inquired into by the Court
in which it is preferred or made:

Provided that, if it is preferred or made in the Court of a Chief

Judicial Magistrate, he may make it over for disposal to any
Magistrate subordinate to him.
 (4) Any person whose claim or objection has been disallowed in
whole or in part by an order under sub-section (1) may, within a
period of one year from the date of such order, institute a suit to
establish the right which he claims in respect of the property in
dispute; but subject to the result of such suit, if any, the order shall
be conclusive.

Section 85 - Release, Sale, and restoration of the property –

(1) If the proclaimed person appears within the time specified in the
proclamation, the Court shall make an order releasing the property
from the attachment.

(2) If the proclaimed person does not appear within the time specified
in the proclamation, the property under the attachment shall be at
the disposal of the State Government; but it shall not be sold until
the expiration of six months from the date of the attachment and
until any claim preferred or objection made under section 84 has
been disposed of under that section, unless it is subject to speedy
and natural decay, or the Court considers that the sale would be
for the benefit of the owner; in either of which cases the Court
may cause it to be sold whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person
whose property is or has been at the disposal of the State
Government, under sub-section (2), appears voluntarily or is
apprehended and brought before the Court by whose order the
property was attached, or the Court to which such Court is
subordinate, and proves to the satisfaction of such Court that he
did not abscond or conceal himself for the purpose of avoiding
execution of the warrant, and that he had not such notice of the
proclamation as to enable him to attend within the time specified
therein such property, or, if the same has been sold, the net
proceeds of the sale, or, if part only thereof has been sold, the net
 proceeds of the sale, and the residue of the property, shall, after
satisfying therefrom all costs incurred in consequence of the
attachment, be delivered to him.

Rights Of Arrested Persons

Article 22 in The Constitution Of India 1949

22. Protection against arrest and detention in certain cases

(1) No person who is arrested shall be detained in custody without

being informed, as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by,
a legal practitioner of his choice

(2) Every person who is arrested and detained in custody shall be

produced before the nearest magistrate within a period of twenty
four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and
no such person shall be detained in custody beyond the said period
without the authority of a magistrate

(3) Nothing in clauses (1) and (2) shall apply (a) to any person who
for the time being is an enemy alien; or (b) to any person who is
arrested or detained under any law providing for preventive
detention

(4) No law providing for preventive detention shall authorize the

detention of a person for a longer period than three months unless
(a) an Advisory Board consisting of persons who are, or have
been, or are qualified to be appointed as, Judges of a High Court
has reported before the expiration of the said period of three
months that there is in its opinion sufficient cause for such
detention:

(5) When any person is detained in pursuance of an order made under

any law providing for preventive detention, the authority making
 the order shall, as soon as may be, communicate to such person
the grounds on which the order has been made and shall afford
him the earliest opportunity of making a representation against the
order

(6) Nothing in clause (5) shall require the authority making any such
order as is referred to in that clause to disclose facts which such
authority considers to be against the public interest to disclose

(7) Parliament may by law prescribe

(a) the circumstances under which, and the class or classes of

cases in which, a person may be detained for a period longer
than three months under any law providing for preventive
detention without obtaining the opinion of an Advisory Board
in accordance with the provisions of sub clause (a) of clause
(4);

(b) the maximum period for which any person may in any class
or classes of cases be detained under any law providing for
preventive detention; and

(c) the procedure to be followed by an Advisory Board in an

inquiry under sub clause (a) of clause ( 4 ) Right against
Exploitation

Rights of Arrested Persons under CrPC

 Persons arrested must be informed of the full particulars of the

offence committed and the grounds for arrest. (Sec.50 Cr. P.C. &
Art 22 (1) -Constitution of India)

 All persons arrested / detained must be served a custody memo as

per Supreme Court directions in D.K. Basu Vs State of West
Bengal.
 Persons arrested cannot be detained for more than 24 hours in
Police Custody (Sec.56/57 Cr.P.C. & Art 22 (2) Constitution of
India.

 An Accused person is entitled to a copy, free of cost, of the Police

Final Report, First Information Report (FIR), statements of all
persons whom prosecution proposes to examine as its witnesses
(Sec 207, Sec. 154, Sec.161 [3]) confessions and statements if any
recorded and any other documents, relevant extracts forwarded to
the magistrate.

 The arrested person has a right to consult and be defended by a

legal practitioner of his choice (Article 22 (1) of the Constitution
of India).

 If the arrested person is poor, he can get free Legal Assistance

from the Legal Services Authority (Art 39 A Constitution of
India).

 The person arrested, has a right to be examined by a registered

medical practitioner (Sec.54) to disprove, the commission of
Offence or to prove the ill-treatment of the police or any other
suitable reason. (S.54 Cr. P.C).

 In the case of a woman the medical examination has to be made

only by a female registered medical practitioner.

 Police are empowered by Sec.41, 42, 151 and 432 (3) of Cr.P.C.
to arrest without a warrant.

 Arrest should not be made on mere suspicion (145 Cr. P.C).

 The arrested person is entitled for compensation for groundless

arrest / illegal detention.

 The registering of the FIR is not a condition precedent to grant

anticipatory bail.
 Warrant of arrest should be in writing and signed by the Presiding
officer of the court with seal. Substance of the warrant should be
shown or intimated to the person to be arrested.

Search

What are the general principles relating to Search (Refer to Sec 99, 100,
and 101)?. Can the police search without a search warrant? (Police search
during investigation - sec 165, 166, 153). When can any court issue a
search warrant (Sec 83, 94, 97, 98)?

What do you understand by Seizure (Sec 102)?

Discuss constitutional Aspects of validity or search and seizure

proceedings.

Security: Nature and Procedures

Order to give Security

If, upon such inquiry, it is proved that it is necessary for keeping the peace
or maintaining good behaviour, as the case may be, that the person in
respect of whom the inquiry is made should execute a bond, with or
without sureties, the Magistrate shall make an order accordingly:

Provided that-

a. no person shall be ordered to give security of a nature different

from, or of an amount larger than, or for a period longer than, that
specified in the order made under section 111;

b. the amount of every bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive;

c. when the person in respect of whom the inquiry is made is a

minor, the bond shall be executed only by his sureties.
Discharge of person informed against

If, on an inquiry under section 116, it is not proved that it is necessary for
keeping the peace or maintaining good behavior, as the case may be, that
the person in respect of whom the inquiry is made, should execute a bond,
the Magistrate shall make an entry on the record to that effect, and if such
person is in custody only for the purposes of the inquiry, shall release him,
or, if such person is not in custody, shall discharge him.

Question

1. Distinguish cognizable and non-cognizable offences

2. Discuss Absconder status

3. What are the Rights Of Arrested Persons

BLOCK 3 - TRIAL PROCESSES

Commencement of period of which security is required

If any person, in respect of whom an order requiring security is made

under section 106 or section 117, is, at the time such order is made,
sentenced to, or undergoing a sentence of, imprisonment, the period for
which such security is required shall commence on the expiration of such
sentence.

In other cases such period shall commence on the date of such order
unless the Magistrate, for sufficient reason, fixes a later date.

Imprisonment in default of Security

a. If any person ordered to give security under section 106 or section

117 does not give such security on or before the date on which the
period for which such security is to be given commences, be shall,
except in the case next hereinafter mentioned, be committed to
prison, or, if, he is already in prison, be detained in prison until

b. such period expires or until within such period he gives the

security to the Court or Magistrate who made the order requiring
it.

c. If any person after having executed a bond with or without

sureties for keeping the peace in pursuance of an order of a
Magistrate under section 117, is proved, to the satisfaction of such
Magistrate or his successor-in-office, to have committed breach of
the bond, such Magistrate or successor-in-office may, after
recording the grounds of such proof, order that the person be
arrested and detained in prison until the expiry of the period of the
bond and such order shall be without prejudice to any other
punishment or forfeiture to which the said person may be liable in
accordance with law.

When such person has been ordered by a Magistrate to give security for a
period exceeding one year, such Magistrate shall, if such person does not
give such security as aforesaid, issue a warrant directing him to be
detained in prison pending the orders of the Sessions Judge and the
proceedings shall be laid, as soon as conveniently may be, before such
Court.

Such Court, after examining such proceedings and requiring from the
Magistrate any further information or evidence which it thinks necessary,
and after giving the concerned person a reasonable opportunity of being
heard, may pass such order on the case as it thinks fit:

Provided that the period (if any) for which any person is imprisoned for
failure to give security shall not exceed three years.

If security has been required in the course of the same proceeding from
two or more persons in respect of any one of whom the proceedings are
referred to the Sessions Judge under Sub-Section (2), such reference shall
also include the case of any other of such persons who has been ordered to
give security, and the provisions of Sub-Sections (2) and (3) shall, in that
event, apply to the case of such other person also except that the period (if
any) for which he may be imprisoned, shall not exceed the period for
which he was ordered to give security.

A Sessions Judge may in his discretion transfer any proceeding laid before
him under Sub-Section (2) or Sub-Section (4) to an Additional Sessions
Judge or Assistant Sessions Judge and upon such transfer, such Additional
Sessions Judge or Assistant Sessions Judge may exercise the powers of a
Sessions Judge under this section in respect of such proceedings.

If the security is tendered to the officer in charge of the jail, he shall

forthwith refer the matter to the Court or Magistrate who made the order,
and shall await the orders of such Court or Magistrate.

Imprisonment for failure to give security for keeping the peace shall be
simple.
Imprisonment for failure to give security for good behavior shall, where
the proceedings have been taken under section 108, be simple and, where
the proceedings have been taken under section 109 or section 110, be
rigorous or simple as the Court or Magistrate in each case directs.

Commencement of proceedings

Complaint

1. Introduction

Criminal Procedure Code is procedural law. Therefore, it describes

that procedure, which should be adopted for administration of criminal
justice. In fact, it has provided provisions for explanation f procedure
in respect of investigation, inquiry and trial. Even it has also provided
provisions to elaborate procedure in respect of complaint.

2. Relevant Provisions

Section 200 to 204 of Criminal Procedure Code 1898.

3. Meaning of Complaint

Complaint means that allegation, which is made orally or in writing to

a magistrate that some know or unknown person has committed an
offence, and which is made with a view to his taking action under
Criminal Procedure Code, and which does not include police report.

Following points are important to explanation of that procedure,

which adopted in respect of complaint:

i. Immediate examination of complainant

The first duty of the Magistrate to examine complainant upon

oath.

ii. Written examination and Signatures

 Substance of examination of complainant should be reduced to
writing and signed by the complainant.

iii. Non-examination of Complainant

In following cases, complainant is not examined:

a. Transfer of case under Section No. 192 of Cr.P.C or sending

of case to Court of Session

When written complaint is made, magistrate is not required to

examine complainant before transferring case under Section
No. 192 of Criminal Procedure Code or before sending case
to Court of Session.

b. Complaint by court or Public Servant

Examination of complainant is not required in that case in

which written complaint is made by court or public servant,
who acts or purports to act in discharge of his official duties.

iv. No Re-examination of Complainant

When case is transferred under section No. 192 of Criminal

Procedure Code and that magistrate, who transfer case, has
already examined complainant, Magistrate to whom case is
transferred is not be bound to re-examine complainant.

v. Procedure for incompetent Magistrate

For explanation of this procedure, following points are important:

a. In case of written complaint

If written complaint has been made to that magistrate, who is

not competent to take cognizance of case, he should return
complaint for presentation to proper court with an
endorsement to that effect.
 b. In case of Oral Complaint

If written complaint has not been made to that magistrate,

who is not competent to take cognizance of case, he should
direct complainant to proper court.

vi. Issue of Process for summoning of accused

If court opines that there is sufficient ground for proceedings,

court can issue process for summoning of accused. Even court can
issue warrant for bringing accused before itself.

vii. Postponement of Issue of Process for compelling attendance of

accused

If court thinks fit, it can postpone issue of process for compelling

attendance of accused and can it inquire into case or can direct
making of inquiry of investigation by any justice of peace or
police officer. Even it can direct making of inquiry or
investigation by such person as it thinks fit. And ascertaining of
truth or falsehood of complaint is purpose of such inquiry or
investigation.

viii. Dismissal of complaint

After considering statement of complainant on oath and result of

inquiry or investigation, if court considers that there is no
sufficient ground for proceeding, court can dismiss complaint.
However, court is to record its reasons for such dismissal.

Conclusion

To conclude , it can be stated that above-discussed procedure can be

adopted when magistrate takes cognizance of some offence upon receiving
complaint of those facts, which constitute such offience. However, such
procedure cannot be adopted when magistrate takes cognizance of some
offence upon that written report, which is made by any police officer and
which consists of those facts, which constitute such offence.

Inquiry

“Inquiry” according to the Code includes every inquiry other than a trial
conducted under this Code, by a Magistrate or court. It relates to
proceedings of Magistrates prior to trial. [Section 2 (g)]

Section 159 of the Code empowers a Magistrate on receipt of a police

report under Section 157, Cr.P.C. to hold a preliminary inquiry in
order to ascertain whether an offence has been committed and, if so,
whether any persons should be put upon their trial.

In cases triable by the court of sessions and commitment proceedings take

place before a Magistrate, which are in the nature of an inquiry preparatory
to sending the accused to take his trial before the Court of Session.

The Magistrate in such cases is bound either to discharge the accused or

commit him for trial, but he has no power to declare an accused either
guilty or innocent of the offence with which he is charged.

An inquiry is also by a Magistrate in cases triable by himself under S. 202

of the Code. On a complaint being filed before a Magistrate, he examines
the complainant and the witnesses on oath in order to find out whether
there is any matter which calls for investigation by a criminal court.

The Magistrate may not act on the complaint and dismiss it if he distrusts
the statements of the complainant and the witnesses and the result of the
‘investigation or inquiry does not establish sufficient ground for
proceeding. All these proceedings are in the nature of inquiry.

Framing of charges

There is some criticism in some trial courts that the important task of
framing charge is being entrusted to stenos by the trial judges. A fortiori,
inasmuch as the Supreme Court laid down that the purpose of framing a
charge is to give intimation to the accused of clear, unambiguous and
precise notice of the nature of accusation that the accused is called upon to
meet in the course of a trial, it is primary duty of a judicial officer to
remove such criticism from the minds of litigant public. This article may
be helpful to newly recruited Junior Civil Judges as to this aspect.

The purpose of framing a charge is to give intimation to the accused of

clear, unambiguous and precise notice of the nature of accusation that the
accused is called upon to meet in the course of a trial. (See V.C. Shukla v.
State Through C.B.I.,1980 Supplementary SCC 92 at page 150 and
paragraph 110 of the report). Either it is a warrant case or a summons case,
the point is that a prima facie case must be made out before a charge can
be framed. Basically, there are three pairs of sections in the Code of
Criminal Procedure, 1973. Those are Sections 227 and 228 which relating
to sessions trial; Sections 239 and 240 relatable to trial of warrant cases;
and Sections 245(1) and (2) qua trial of summons cases. The Hon’ble
Supreme Court, in Mohan Singh v. State of Bihar, has examined the law
relating to charge while highlighting the purpose of framing a charge
against the accused in criminal cases.

One basic requirement of a fair trial in criminal jurisprudence is to give

precise information to the accused as to the accusation against him. This is
vitally important to the accused in the preparation of his defence. In all
trials under the Criminal Procedure Code the accused is informed of the
accusation in the beginning itself. In case of serious offences the Code
requires that the accusations are to be formulated and reduced to writing
with great precision & clarity. This "charge" is then to be read and
explained to the accused person1.

Charge serves the purpose of notice or intimation to the accused, drawn up

according to specific language of law, giving clear and unambiguous or
precise notice of the nature of accusation that the accused is called upon to
meet in the course of trial2.
Relevant Legal Provisions of Criminal Procedure Code (CrPC)

  Section 211 & Section 212 specifies about Contents of Charge

and mentioning of particulars as to time and place of the alleged
offence in the charge.

This rule is to an extent relaxed in a case of criminal breach of trust or of

dishonest misappropriation. When the accused is charged with criminal
breach of trust or dishonest misappropriation of money or other movable
property, it shall be sufficient to specify the gross sum or, as the case may
be, describe the movable property in respect of which the offence is
alleged to have been committed, and the dates between which the offence
is alleged to have been committed, without specifying particular items or
exact dates. It is obvious that the relaxation given by the above rule is
applicable only in case of criminal breach of trust or dishonest
misappropriation and not in case of any other offence like theft,
falsification of accounts under Section 477-A of the IPC, cheating etc.

This rule is intended to cover cases of persons who showed a deficiency in

the accounts with which they were entrusted but who could not be shown
to have misappropriated this or that specific sum3.

  Section 213 talks about; when manner of committing offence

must be stated:

When the nature of the case is such that the particulars mentioned in
sections 211 and 212 do not give the accused sufficient notice of the
matter with which he is charged, the charge shall also contain such
particulars of the manner is which the alleged offence was committed as
will be sufficient for that purpose.

  Section 214 gives a rule for interpreting the words used in the
charge: It provides that in every charge words used in describing
an offence shall be deemed to have been used in the sense
 attached to them respectively by the law under which such
offence is punishable.

Basic Procedure regarding charge & its trial

The initial requirement of a fair trial in criminal cases is a precise

statement of the accusation. The code seeks to secure this requirement,
first, by laying down in Sections 211 to 214 of CrPC as to what a charge
should contain; next, stipulating in Section 218 of CrPC that for every
distinct offence there should be a separate charge; and lastly, by laying
down in the same section that each charge should be tried separately, so
that what is sought to be achieved by the first two rules is not nullified by a
joinder of numerous & unconnected charges4.

Section 218 reads as Separate charges for distinct offences

The object of section 218 is to save the accused from being embarrassed in
his defence if distinct offences are lumped together in one charge or in
separate charges & are tried together5. Another reason is that the mind of
the court might be prejudiced against the prisoner if he were tried in one
trial upon different charges resting on different evidence. It might be
difficult for the court trying him on one of the charges not to be influenced
by the evidence against him on the other charges. The strict observance of
Section 218(1) may lead to multiplicity of trials, therefore exceptions, in
suitable cases, have been provided by Section 218(2) in Sections
219,220,221 & 223. The effects of non-compliance with provisions
regarding charge would be considered later. It would however be useful to
allude to the decision of the Supreme Court in context of non-compliance
with Section 218. In every case, in which a departure from the
requirements of Section 218 has occurred, the question before the courts
is, whether the omission to frame the required charge has or has not in fact
occasioned a failure of justice by prejudicing the accused in his defence, &
whether he has thus been deprived of a fair trial6.
Power of Court to order separate trial in cases where joinder of
charges or of offenders is permissible

The basic rule regarding charge is that for every distinct offence there shall
be a separate charge & for every such charge there shall be separate trial.
The only exceptions recognized are contained in Sections 219,220,221 &
223 of CrPC. Therefore separate trial is the rule and the joint trial is an
exception. The sections containing the exceptions are only enabling
provisions. A court has got the discretion to order a separate trial even
though the case is covered by one of the exceptions enabling a joint trial 7.
A joint trial of a very large number of charges is very much to be
deprecated even though it is not prohibited by law. A separate trial is
always desirable whenever there is risk of prejudice to the accused in a
joint trial. The Supreme Court has taken the view that it is the option of the
court whether to resort to Section 219,220 & 223 of the Code or whether
to act as laid down in Section 218 and that the accused has no right to
claim joinder of charges or of offenders8.

Applicability of provisions relating to joinder of charges to cases

where no charge is framed

As will be seen later, in all summons cases though it is necessary to state

to the accused the particulars of the offence of which he is charged, it is
not necessary to frame a formal charge. In such cases a question may arise
whether the provisions relating to joinder of charges & of offenders are
applicable to such proceedings. The Code does not make any express
provision in this regard. However the courts have taken the view that these
provisions are equally applicable in summons cases also9.

Amendment/Alteration of charge

According to Section 216 (1) of CrPC, any court may alter or add to any
charge at any time before judgment is pronounced. The section invests a
comprehensive power to remedy the defects in the framing or non-framing
of a charge, whether discovered at the initial stage of the trial or at any
subsequent stage prior to the judgment.

The code gives ample power to the courts to alter or amend a charge
whether by the trial court or by the Appellate Court provided that the
accused has not to face a charge for a new offence or is not prejudiced
either by keeping him in the dark about that charge or in not giving a full
opportunity of meeting it & putting forward any defence open to him, on
the charge finally preferred against him10. The court has a very wide power
to alter the charge; however, the court is to act judiciously and to exercise
the discretion wisely. It should not alter the charge to the prejudice of the
accused person11.

Withdrawal of remaining charges on conviction on one of several

charges

Section 224 of CrPC states that when a charge containing more heads than
one is framed against the same person, and when a conviction has been
had on one or more of them, the complainant, or the officer conducting the
prosecution, may, with the consent, of the Court, withdraw the remaining
charge or charges, or the Court of its own accord may stay the inquiry into,
or trial of, such charge or charges and such withdrawal shall have the
effect of an acquittal on such charge or charges, unless the conviction be
set aside, in which case the said Court (subject to the order of the Court
setting aside the conviction) may proceed with the inquiry into, or trial of,
the charge or charges so withdrawn. The section is applicable where the
accused in convicted of one of several distinct charges before the other
charges are tried. It is necessary that the several charges made must be in
respect of distinct offences and the section will not apply where the several
charges are made under Sections 220(3), 220(4), or Section 221.

Effects of omission to frame, or absence of, or error in charge

Under Section 215 & 464 of CrPC object is to prevent failure of justice
where there has been only technical breach of rules not going to the root of
the case as such. The two sections read together lay down that whatever
the irregularity in framing of a charge, it is not fatal unless there is
prejudiced caused to the accused12. The object of the section is to prevent
failure of justice where there is some breach of the rules in the formulation
of the charge. However, the section also makes it clear that insignificant
irregularities in stating the particulars of the offence will not affect the trial
or its outcome. In order to decide whether the error or omission has
resulted in a failure of justice the court should have the regards to the
manner in which the accused conducted his defence & to the nature of the
objection.

The object of the charge is to give an accused notice of the matter he is

charged with. If the necessary information is conveyed to him and no
prejudice is caused to him because of the charges, the accused cannot
succeed by merely showing that the charges framed were defective. Nor
could a conviction recorded on charged under wrong provisions be
reversed if the accused was informed of the details of the offences
committed and thus no prejudice was caused to him13. The mere omission
to frame a charge or a mere defect in the charge is no ground for setting
aside a conviction. Procedural laws are designed to subserve the ends of
justice & not to frustrate them by mere technicalities.

Conclusion

In a criminal trial the charge is the foundation of the accusation & every
care must be taken to see that it is not only properly framed but evidence is
only tampered with respect to matters put in the charge & not the other
matters.

In framing a charge during a criminal trial, instituted upon a police report,

the court is required to confine its attention to documents referred to under
Section 173.

The judge needs to be only convinced that there is a prime facie case,
where there is no necessity to adduce reasons for framing charges.
However, the magistrate is required to write an order showing reasons if
he decides to discharge the accused.

The sections dealing with charge do not mention who is to frame the
charge. The provisions dealing with different types of trials however
provide that it is always for the court to frame the charge. The court may
alter/ add to any charge at any time before the judgment is pronounced.

But if a person has been charged, the court cannot drop it. He has either to
be convicted or acquitted. All this has an important bearing on the
administration of justice.

Form and content of charge

Charge
As per Wharton's law Lexicon, Charge means to prefer an acusation
against some one. To charge a person means to accuse that person of some
offence. However, charge is not a mere accusation made by a complainant
or an informant. A charge is a formal recognition of concrete accusations
by a magistrate or a court based upon a complaint or information against
the accused. A charge is drawn up by a court only when the court is
satisfied by the prima facie evidence against the accused. The basic idea
behind a charge is to make the accused understand what exactly he is
accused of so that he can defend himself. A charge gives the accused
accurate and precise information about the accusation against him.A
charge is written in the language of the court and the fact that the charge is
made means that every legal condition required by law to constitute the
offence charged is fulfilled in the particular case.

It is a basic principle of law that when a court summons a person to face a

charge, the court must be equipped with at least prima facie material to
show that the person being charged is guilty of the offences contained in
the charge. Thus, while framing a charge, the court must apply its mind to
the evidence presented to it and must frame a charge only if it is satisfied
that a case exists against the accused. In the case of State vs Ajit Kumar
Saha 1988, the material on record did not show a prima facie case but the
charges were still framed by the magistrate. Since there was no application
of mind by the magistrate, the order framing the charges was set aside by
the High Court.

According to Section 2(b) of Cr P C, when a charge contains more than

one heads, the head of charges is also a charge.

Contents of a Charge

Section 211 specifies the contents of a Charge as follows [ONDSLP]

(1) Every charge under this Code shall state the offence with which the
accused is charged.

(2) If the law that creates the offence gives it any specific name, the
offence may be described in the charge by that name only.

(3) If the law that creates the offence does not give it any specific name so
much of the definition of the offence must be stated as to give the
accused notice of the matter with which he is charged.

(4) The law and section of the law against which the offence is said to
have been committed shall be mentioned in the charge.

(5) The fact that the charge is made is equivalent to a statement that every
legal condition required by law to constitute the offence charged was
fulfilled in the particular case.

(6) The charge shall be written in the language of the court.

(7) If the accused, having been previously convicted of any offence, is

liable, by reason of such previous conviction, to enhanced
punishment, or to punishment of a different kind, for a subsequent
offence, and it is intended to prove such previous conviction for the
purpose of affecting the punishment which the court may think fit to
award for the subsequent offence, the fact date and place of the
previous, conviction shall be stated in the charge; and if such
 statement has been omitted, the court may add it at any time before
sentence is passed.

A charge must list the offence with which the person is charged. It must
specify the law and the section against which that offence has been done.
For example, if a person is charged with Murder, the charge must specify
Section 300 of Indian Penal Code. If the law gives a name to that offence,
the charge must also specify that name and if the law does not specify any
name for that offence, the charge must specify the detail of the offence
from the definition of the offence so that the accused is given a clear idea
of it.

In many cases, on offender is given a bigger sentence for subsequent

offence. In such cases, the charge must also state the date and place of
previous conviction so that a bigger punishment may be given.

Illustrations

(a) A is charged with the murder of B. This is equivalent to a statement

that A's act fell within the definition of murder given in sections 299
and 300 of the Indian Penal Code (45 of 1860); that it did not fall
within any of the general exceptions of the said Code; and that it did
not fall within any of the five exceptions to section 300, or that, if it
did fall within Exception 1, one or other of the three provisos to that
exception applied to it.

(b) A is charged under section 326 of the Indian Penal Code (45 of 1860)
with voluntarily causing grievous hurt to B by means of an instrument
for shooting. This is equivalent to a statement that the case was not
provided for by section 335 of the said Code, and that the general
exceptions did not apply to it.

(c) A is accused of murder, cheating, theft, extortion, adultery or criminal

intimidation, or using a false property-mark. The charge may state that
A committed murder, or cheating, or theft, or extortion, or adultery, or
 criminal intimidation, or that he used a false property-mark, without
reference to the definition, of those crimes contained in the Indian
Penal Code; but the sections under which the offence is punishable
must, in each instance, be referred to in the charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of
1860) with intentionally obstructing a sale of property offered for sale
by the lawful authority of a public servant. The charge should be in
those words.

Time and Place of the offence

Further, as per section 212, the charge must also specify the essential facts
such as time, place, and person comprising the offence. For example, if a
person is charged with Murder, the charge must specify the name of the
victim and date and place of the murder. In case of Shashidhara Kurup
vs Union of India 1994, no particulars of offence were stated in the
charge. It was held that the particulars of offence are required to be stated
in the charge so that the accused may take appropriate defence. Where this
is not done and no opportunity is afforded to the accused to defend his
case, the trial will be bad in law for being violative of the principles of
natural justice.

It is possible that exact dates may not be known and in such cases, the
charge must specify information that is reasonably sufficient to give the
accused the notice of the matter with which he is charged. In cases of
criminal breach of trust, it will be enough to specify gross sum or the dates
between which the offence was committed.

Manner of committing the offence

Some times, even the time and place do not provide sufficient notice of the
offence which which a person is charged. In such situations, Section 213,
mandates that the manner in which the offence was made must also be
specified in the charge. It says that when the nature of the case is such that
the particulars mentioned in sections 211 and 212 do not give accused
sufficient notice of the matter with which he is charged, the charge shall
also contain such particulars of the manner is which the alleged offence
was committed as will be sufficient for that Purpose.

Illustrations

(a) A is accused of the theft of a certain article at a certain time and place
the charge need not set out the manner in which the theft was effected

(b) A is accused of cheating B at a given time and place. The charge must
be set out the manner in which A cheated B.

(c) A is accused of giving false evidence at a given time and place. The
charge must set out that portion of the evidence given by A which is
alleged to be false.

(d) A is accused of obstructing B, a public servant, in the discharge or his

public functions at a given time and place. The charge must set out the
manner obstructed B in the discharge of his functions.

(e) A is accused of the murder of B at a given time and place. The charge
need not state the manner in which A murdered B.

(f) A is accused of disobeying a direction of the law with intent to save

punishment. The charge must set out the disobedience charged and the
law infringed.

Effects of errors in a Charge

In general, an error in a Charge is not material unless it can be shown that

the error misled the accused or that the error caused injustice. Section
215 says, "No error in stating either the offence or the particulars required
to be stated in the charge, and no omission to state the offence shall be
regarded at any stage of the case as material, unless the accused was in fact
misled by such error or omission, and it has occasioned a failure of
justice."
Illustrations:

(a) A is charged under section 242 of the Indian Penal Code (45 of 1860),
with "having, been in possession of counterfeit coin, having known at
the time when he became possessed thereof that such coin was
counterfeit," the word "fraudulently" being omitted in the charge.
Unless it appears that A was in fact misled by this omission, the error
shall not be regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B

is not set out in the charge, or is set out incorrectly. A defends himself,
calls witnesses and gives his own account of the transaction. The court
may infer from this that the omission to set out the manner of the
cheating is not material.

(c) A is charged with cheating B, and the manner in which he cheated B

is not set out in the charge. There were many transactions between A
and B, and A had no means of knowing to which of them the charge
referred, and offered no defence. Court may infer from such facts that
the omission to set out the manner of was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January
1882. In fact, the murdered person's name was Haidar Baksh, and the
date of the murder was the 20th January. 1882. A was never charged
with any murder but one, and had heard the inquiry before the
Magistrate, which referred exclusively to the case of Haidar Baksh.
The court may infer from these facts that A was not misled, and that
the error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20th January,
1882, and Khoda Baksh (who tried to arrest him for that murder) on
the 21st January, 1882. When charged for the murder of Haidar
Baksh, he was tried for the murder of Khoda Baksh. The witnesses
present in his defence were witnesses in the case of Haidar Baksh. The
court may infer from this that A was misled, and that the error was
material.
The above illustrations show that when the accused in not misled, the error
is not material. For example, in the case of Rawalpenta Venkalu vs State
of Hyderabad, 1956, the charge failed to mention the Section number 34
of IPC but the description of the offence was mentioned clearly. SC held
that the section number was only of academic significance and the
omission was immaterial.

Section 464 further provides that an order, sentence, or finding of a court

will not be deemed invalid merely on the ground that no charge was
framed or on the ground of any error, omission or irregularity in the charge
including any misjoinder of charges, unless in the opinion of the court of
appeal, confirmation, or revision, a failure of justice has in fact happened
because of it. If such a court of appeal, confirmation, or revision find that a
failure of justice has indeed happened, in case of omission, it may order
that a charge be immediately framed and that the trial be recommenced
from the point immediately after the framing of the charge, and in case of
error, omission, or irregularity in the charge, it may order new trial to be
held upon a charge framed in whatever manner it thinks fit.

As is evident, the object of these sections is to prevent failure of justice

where there has been only technical breach of rules that does not affect the
root of the case as such. As held in the case of Kailash Gir vs V K Khare,
Food Inspector, 1981, the above two sections read together lay down that
whatever be the irregularity in framing the charge, it is not fatal unless
there is prejudice caused to the accused.

Further, Section 216 allows the court to alter the charge anytime before
the judgement is pronounced.

Section 216:

(1) Any court may alter or add to any charge at any time before judgment
is pronounced.

(2) Every such alteration or addition shall be read and explained to the
accused.
(3) If the alteration or addition to a charge is such that proceeding
immediately with the trial is not likely, in the opinion of the court to
prejudice the accused in his defence or the prosecutor in the conduct
of the case the court may, in its discretion, after such alteration or
addition has been made, proceed with the trial as if the altered or
added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with

the trial is likely, in the opinion of the court to prejudice the accused
or the prosecutor as aforesaid, the court may either direct a new trial
or adjourn the trial for such period as may be necessary.

(5) lf the offence stated in the altered or added charge is one for the
prosecution of which previous section is necessary, the case shall not
be proceeded with until such sanction is obtained, unless sanction had
been already obtained for a prosecution on the same facts as those on
which the altered or added charge is founded.

Thus, even if there is an error in a charge, it can be corrected at a later

stage. An error in a charge is not important as long as the accused in not
prejudiced and principles of natural justice are not violated.

Bail: General principles and cancellation of bails

BAIL UNDER THE CODE OF CRIMINAL PROCEDURE

In the CrPC the term ‘Bail’ has not been defined but has been used
sometimes singly and more often it has been used in juxtaposition with
other terms which are as follows: ‘bail’, ‘security for bail’, ‘bond with
surety’ and so on. Chapter XXXIX of the Code of Criminal Procedure,
1898 (Act No. V) deals several sections related to Bail in the following
way-

Bail in bailable offence (Section 496)

Section 496 of the Code of Criminal Procedure, 1898 describes when bail
is to be taken. The section state as, “when any person other than a person
accused of a non-bailable offence is arrested or detained without warrant
by an officer-in-charge of a police station, or appears or is brought before a
Court, and is prepared at any time while in the custody of such officer or at
any stage of the proceedings before such Court to give bail, such person
shall be released on bail; provided that such officer or Court, if he or it
thinks fit, may, instead of taking bail from such person, discharge him on
his executing bond without securities for his appearance as hereinafter
provided: Provided further that nothing in this section shall be deemed to
affect the provisions of section 107, sub section (4) or section 117, sub-
section (3).

Bail in Non-bailable Offence (Section 497)

Section 497 of the CrPC states about power to direct admission to bail or
reduction of bail. The amount of every bond executed under this Chapter
shall be excessive; and the High Court Division or Court of Sessions may,
in any case, whether there be admitted to bail, or that the bail required by a
police officer or magistrate be reduced. According to the section 497 of the
CrPC, (1) when any person accused of the any non-bailable offence is
arrested or detained without warrant by an officer-in-charge of a police-
station. Or appears or is brought before a Court, he may be released on
bail, but he shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death or
transportation for life:

(1) Provided that the Court may direct that any person under the age of
sixteen years or any women or any sick or infirm person accused of
such an offence be released on bail.

(2) If it appears to such officer or Court at any stage of the investigation,

inquiry or trail, as the case may be, that there are not reasonable
grounds for believing that the accused has committed a [non-bailable
offence], but that there are sufficient grounds for further inquiry into
his guilt the accused shall pending such inquiry, be released on bail,
 or, at the discretion of such officer or Court, on the execution by him
of a bond without sureties for his appearance as hereinafter provided.

(3) 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 for so
doing.

(4) if at any time after the conclusion of the trial of a person accused of a
non-bailable offence and before judgment is delivered, the Court is of
opinion that there are reasonable grounds for believing that the
accused, if he is in custody on the execution by him of a bond without
sureties for his appearance to hear judgment delivered.

(5) the High Court Division or Court of Session and in the case of a
person released b itself, any other Court may person who has been
released under this section to be arrested may commit him to custody
“Save in accordance with law” as mentioned in Article 32 not only
refers to criminal law but also civil law which provides for arrest and
detention, namely, for recovery of decrial dues and public dues.

Section 497 of the Code of Criminal Procedure is a procedural law and the
accused having alleged to have committed a substantive offence of murder
his liberty is curtailed.

Anticipatory Bail (Section 498)

Section 498 of the Code of Criminal Procedure, 1898 states about the
‘Power to direct admission to bail or reduction of bail’. The section states,
The amount of every bond executed under this Chapter shall not be
excessive; and the High Court Division or Court of Sessions may, in any
case, whether there be an appeal on convection or not, direct that any case,
whether there be an appeal on conviction or not, direct that any person be
admitted to bail, or that the bail required by a police-officer, or Magistrate
be reduced.
A Member of Parliament being enlarged on bail cannot avoid appearance
before the trial Court simple on the plea that the Parliament is in session.
The question of granting or refusing bail depends upon the particular
circumstances of each case and the mere fact that an offence is punishable
with death or life imprisonment is not by itself sufficient to refuse bail.

The grant of bail is the discretion of the court and the Court could consider
the exercise of discretion if it is satisfied in the facts and circumstances of
the case that the trial cannot be concluded within the specified time.

The apprehension that there is possibility on the part of the petitioner to

interfere with the process of investigation and of tampering with the
evidence has got no basis at all. The attending circumstances shown the
petitioner deserve bail.

The deceased was killed in her husband’s house and naturally he was then
her best custodian and he is supposed to know the cause of her death, but
the story narrated in the UD Case which was ended in the final report
creates presumption about the implication of the husband in the
occurrence. Moreover, there is no cause to consider the prayer for his bail
in the light of the decision referred which was given in an appeal. Non-
compliance of direction of High Court Division by the Court below as to
conclusion of trial of the case within 4 months will not create any right to
the accused Harun to be entitled to get bail disregarding the allegation of
overt act against him. Court of law must act upon materials on record to
decide the question of granting or non granting of bail. As the petitioner
has no forum to surrender at this stage and police is after him the accused-
petitioner is enlarged on anticipatory bail for limited period till submission
of police report.

Bail Bond and Surety (Section 499)

Section 499 of the Code of Criminal Procedure, 1898 provides that

provision bonds of accused and sureties which is following under,

(1) 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, as the case
 may be, 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 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, as the case may be.

(2) If the case so requires, the bond shall also bind the person released on
bail to appear when called upon at the [High Court Division], Court of
Sessions or other to answer the charge.

Discharge from Custody (Section 500)

According to the Section 500 of the Code of Criminal Procedure, 1898,

(1) As soon as the bond has been executed, the person for whose
appearance if 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 order
shall release him,

(2) Nothing in this section, section 496 or section 497 shall be deemed to
require the release of any person liable to be detaining, for some
matter other than that in respect of which the bond was executed.

Power to Order Sufficient Bail when that First Taken is

Insufficient (Section 501)

Section 501 of the Code of Criminal Procedure, 1898 provides the

provision of power to order sufficient bail when that first taken is
insufficient. The Section states as, 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, on his ailing so to do, commit him to jail.

Discharge of sureties (Section 502)

In the code of criminal procedure Section 502 states,

(1) all or any sureties for the attendance and appearance a person released
on bail may at any time apply to a Magistrate to discharge the bond,
either wholly or far as relates to the applicants,

(2) on such application being made, the Magistrate shall issue his warrant
of arrest directing that the person so released be brought before him,

(3) on the appearance of such person pursuant to the warrant or on his

voluntary surrender, the 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 fond other sufficient sureties, and, if he fails
to do so, may commit him to custody.
Chapter 4 - POWER OF GRANTING OR CANCELING BAIL BY
DIFFERENT COURTS

4.1 Whether Sessions Judge Can Grant Bail after Rejection Bail
Application by the High Court or Supreme Court

After the High Court rejected a bail application, the Court of Session can
entertain a Bail application of the same accused if any substantial grounds
for bail arose after such rejection. On the other hand, if the fresh
application was meant to overcome the earlier order of rejection of bail by
the High Court, judicial decorum requires that the Court. Generally when
the High Court has rejected bail, the subordinate Courts have no power to
grant bail. But if new circumstances have come into existence, the lower
Court has power to grant bail even after the High Court has rejected it.
When the bail application has been rejected on merits by the Supreme
Court, the High Court or the Session Court cannot grant bail to the accused
on re-evaluation of evidence. The practice of this Court is that if an
application (under section 497 or 498 of CrPC) is dealt with by a Judge of
this Court and then the second bail application of that accused is filed, then
the said bail application is to be placed before the same Judge who has
already dismissed an application. There is no doubt that on the same
material if this court has already dismissed an application for bail filed by
an accused, the sessions judge should not allow that bail application.
Where bail petition is dismissed by High Court on merits, bail can still be
allowed by the sessions Judge/ Committing Magistrate/ Trial Court if the
case is covered by any proviso to section 497 (1) or by section 497 (2) or
witness while appearing in court do not support the prosecution case. A
subordinate Court is not otherwise vested with jurisdiction to sit in
Judgment over the orders of the High Court. Rule of propriety, however,
demands the transfer of the case to another Judge Has expressed himself
strongly against the grant of bail.
4.2 Sessions Judge Competent to Entertain Bail Application despite
Rejection by Additional Sessions Judge

Where an Additional Sessions Judge, to whom a criminal case was

transferred for trail by the Sessions Judge after its committal rejected an
application for bail, and there after the accused moved the Sessions Judge
for bail, the Sessions Judge is competent to entertain the application for
bail. In such situation it cannot be said that as the case is transferred by the
Sessions Judge the Additional Sessions Judge, exercises the jurisdiction of
the Court of Session as he has no independent power and consequently the
Sessions Judge has no power, authority or jurisdiction to hear the
applications for bail.

The power of the Court of Session under section 497 CrPC it not in any
way affected even after transfer of the cases by the Sessions Judge to the
additional Sessions Judge. A Sessions Judge can grant bail application
despite rejection of bail petition by the Additional Sessions Judge or the
Assistant Sessions Judge to whom the case was made over for disposal.

4.3 Whether Magistrate Can Grant Bail after Refusal by the Session
Judge

In spite of refusal to grant bail by Sessions Judge (the appellate authority)

Magistrate can, on a subsequent occasion, in proper circumstances, grant
bail. Where in spite of two successive bail applications having been
rejected by the High Court in a murder case, the Magistrate granted
provisional bail to the accused it was held that the course adopted by the
Magistrate was not only contrary to the settled principles of judicial
discipline and propriety but also contrary to the statutory provisions.

4.4 Additional Sessions Is Not Bound By the Bail Granted by the

Sessions Judge

Additional Sessions Judge is not bound by the bail granted by the Sessions
judge. If he refuses bail to an accused who was earlier granted bail by the
Sessions Judge that cannot be construed as cancellation of bail granted by
the Sessions Judge.
4.5 Whether Court of Sessions Can Cancel Bail Granted by High
Court

Neither the magistrate nor the Sessions Judge is empowered to cancel the
bail granted to an accused person by an order of the High Court under
section 498, unless the order of the High Court is explicitly of a temporary
character and applicable only to a certain stage in the proceedings. It must
be made clear that a Court of Session cannot cancel bail which has already
been granted by High Court unless new circumstances arise during the
progress of trial after the accused person has been admitted to bail by the
High Court.

4.6 Magistrate Cannot Cancel Bail Granted by Sessions Judge or High

Court

A Magistrate cannot cancel the bail of the person who has been granted
bail by Sessions Judge or High Court. A Magistrate has no power to cancel
the bail granted by the High Court or the Court of Sessions.

Cancellation of Bail

Without prejudice to the provisions of section 446, where a bond under

this Code is for appearance of a person in a case and it is forfeited for
breach of a condition-

a. 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

b. thereafter no such person shall be released only on his own bond

in that case, if the Police Officer or the Court, as the case may be,
for appearance before whom the bond was executed, is satisfied
that there was no sufficient cause for the failure of the person
bound by the bond to comply with its condition: 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.

"It is well settled that the grounds for cancellation of bail under Section
437(5) and 439(2) of the Code are identical, namely, bail granted under
Section 437(1) or 439(1) of the Code can be cancelled broadly when one
or more of the following conditions are fulfilled:

(i) The accused misuses his liberty by indulging in similar activity

(ii) Interferes with the Course of investigation

(iii) Attempts to tamper with the evidence,

(iv) Threaten witnesses or indulges in similar activities which would

hamper smooth investigation,

(v) There is liklihood of the accused fleeing away to another country.

(vi) Attempts to make himself scare by going underground graver

offence.

18. The grounds referred to above are illustrative and not exhaustive.

19. Are these the only grounds on which the bail granted for non
submission of the charge sheet can be cancelled"

Anticipatory Bail

Anticipatory Bail (before arrest)

When a person is granted bail in apprehension of arrest, this is called

anticipatory bail. This is an extra-ordinary measure and an exception to the
general rule of bail. When any person has reason to believe that he may be
arrested on an accusation of having committed a non-bail able offence, he
may apply to the High Court Division or the Court of Session for a
direction and the court may, if it thinks fit, direct that in the event of such
arrest, he shall be released on bail. There is no section or provision which
specifically authorizes the court to grant an anticipatory bail. However,
application is made under sec. 498 of the CrPC for an anticipatory bail.
This is because of the wording in the section, “in any case”. Thus the
power given in this section is very wide and can be exercised by both the
High Court Division and the Court of Session in any case without any
limitation.

Preliminary pleas to bar trial

General Concept

When an accused appears or is brought before the court for a trial, he may
raise certain pleas or objections to avoid the trial. For example, he may
plead that the court does not have jurisdiction in the case or that the
offence happened too long ago, or that he has already been tried and
acquitted for the same offence. Such pleas are meant to stop the trial from
proceeding further and discharge the accused. However, such pleas may
also be raised by prosecution when the court does not have competency or
jurisdiction in the case.

Such pleas are supposed to be brought forth at the beginning of a trial or as

soon as charges are framed. However, there is no explicit direction in Cr P
C regarding the timing for such pleas.

The follow are the pleas that can be raised –

1. Court without Jurisdiction - Jurisdiction of criminal courts is of two

kinds. One that determines the competency of the court to try a
specific offence and the other that determines whether the offence
happened in the territory of the court, which is also known as
territorial jurisdiction.

Competency of the Court to try the offence - Section 26 read with

column 6 of the first schedule determines which court can try a given
offence. For example, offences against public tranquility can be tried
by any magistrate while the offence of counterfeiting a government
stamp can be tried only by a Court of Session. Similarly, only the
prescribed court or magistrate has the power for all the offences
defined in IPC and other laws.
 Thus, any party to the proceeding can raise the plea that the court is
not competent to try the concerned offence. Section 461 provides that
it any magistrate, who is not empowered to try an offence, tries the
offender for that offence, the proceedings shall be void.

Also, an executive magistrate has no power to try for any offence.

Further, as per Section 479, no magistrate or judge can try any case in
which he is a party or in which he is interested. If a trial is initiated in
violation of this rule, a plea can be raised in this regard.
Territorial Jurisdiction - This jurisdiction is determined according to
Section 177 to 188 of CrPC. These rules have been enacted mainly for
the purpose of convenience of the court, the investigating agency, the
accused, and the victim. The general concept is that only the court in
whose territory the offence or any part of offence has happened, can
try that offence. In simple terms, an offence committed in Mumbai
cannot be tried in a court in Delhi. However, most case are not as
simple as that. For example, A hurts B by a knife in Dewas and D dies
because of the wound in Indore. In this case, both the courts in Dewas
and Indore have jurisdiction. However, if the victim B lives in Bhopal
and if FIR of his death is filed in Bhopal, can A be tried in Bhopal? If
not, and if A is tried in Bhopal, A can raise a pleas to bar the trial in
Bhopal.

Any violation of the rules of territorial jurisdiction does not ipso factor
vitiate the trial unless it has in fact resulted in failure of justice.
However, if a plea of territorial jurisdiction is raised in the beginning
of the trial, then such objection must be sustained and the trial must be
stopped. It cannot gain legitimacy under Section 462 in that case.

2. Time barred proceedings - Earlier, any offence committed could

have been taken cognizance of after any number of years. This caused
grave injustice to the accused as important witnesses became
unavailable, or important evidence was destroyed by time. For these
 reasons, CrPC has now incorporated some general rules for taking
cognizance of the crimes within a specific period of their happening.
In general, the principle that offences punishable with only fine or
with imprisonment up to 3 yrs should be tried within a limited time.
The provisions regarding such limitations are contains in Section 467
to 473 and an accused can take advantage of the appropriate section to
raise the plea that the case against him is barred by the prescribed
period of limitation.

Section 468 contains the basic rule which provides that no court shall
take cognizance of an offence punishable with fine only or with
imprisonment up to three yrs after the expiry of the period of
limitation. The period of limitations are –

1. 6 months, if the offence is punishable by fine only.

2. 1 yr, if the offence is punishable with imprisonment of a term not

exceeding 1 yr.

3. 3 yrs, if the offence is punishable with imprisonment of a term not

exceeding 3 yr.

These provisions are subject to any other provision which might have
been created explicitly for any particular offence.

Trial of offences of serious nature, i.e. offences which entail

punishment of imprisonment of more than 3 yrs, or death, as of yet,
are not barred by any time limitation.

3. Plea of autrefois acquit and autrefois convict - This means that if

the offender has already been tried for the exact same offence before
and he has been either acquitted or convict in that trial, he cannot be
tried again on that offence. Art 20(2) of the constitution recognizes
this principle as a fundamental right. It says that no person shall be
prosecuted and punished for the same offence more than once. While
the article gives this right only upon previous conviction, section 300
fully incorporates this principle.
4. Disabilities of the accused - Under the broad interpretation of Article
21 by Supreme Court, an accused has a fundamental right to be
represented by a legal practitioner in his trial. If he is indigent, it is the
responsibility of the state to provide a lawyer for him. Section 304
also requires the court to assign a pleader for the accused in certain
situations. If this is not done, a plea can be raised in this regard. If the
trial still proceeds, despite the objects, the trial is deemed to be
vitiated.

Remand

Police Remand

167. Procedure when investigation cannot be completed in twenty-four

hours.

(1) Whenever any person is arrested and detained in custody, and it

appears that the investigation cannot be completed within the period
of twenty-four hours fixed by section 57, and there are grounds for
believing that the accusation or information is well-founded, the
officer in charge of the police station or the police officer making the
investigation, if he is not below the rank of sub-inspector, shall
forthwith transmit to the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed relating to the case, and shall
at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom all accused person is forwarded under this
section may, whether he has or not jurisdiction to try the case, from
time to time, authorise the detention of the accused in such custody as
such Magistrate thinks fit, a term not exceeding fifteen days in the
whole; and if he has no jurisdiction to try the case or commit it for
trial, and considers further detention unnecessary, he may order the
accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-
1[(a) The Magistrate may authorize the detention of the accused
person, otherwise than in the custody of the police, beyond the
period of fifteen days, if he is satisfied that adequate grounds
exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this paragraph
for a total period exceeding-

(i) Ninety days, where the investigation relates to an offence

punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;

(ii) Sixty days, where the investigation relates to any other

offence,

And, on the expiry of the said period of ninety days, or sixty

days, as the case may be, the accused person shall be
released on bail if he is prepared to and does furnish bail,
and every person released on bail under this sub-section
shall be deemed to be to released under the provisions of
Chapter XXXIII for the purposes of that Chapter;]

(b) No Magistrate shall authorize detention in any custody

under this section unless the accused is produced before
him;

(c) No Magistrate of the second class, not specially

empowered in this behalf by the high Court, shall
authorize detention in the custody of the police.

2. [Explanation I. For the avoidance of doubts, it is hereby

declared that, notwithstanding the expiry of the period specified
in paragraph (a), the accused shall be detained in Custody so
long as he does not furnish bail.]

3 [Explanation II].If any question arises whether an accused

person was produced before the Magistrate as required under
paragraph (b), the production of the accused person may be
proved by his signature on the order authorizing detention.
2[(2A) Notwithstanding, anything contained in sub-section (1)
or sub-section (2), the officer in charge of the police station or
the police officer making the investigation, if he is not below the
rank of a sub-inspector, may, where a Judicial Magistrate is not
available, transmit to the nearest Executive Magistrate, on
whom the powers of a Judicial Magistrate or Metropolitan
Magistrate have been conferred, a copy of the entry in the diary
hereinafter prescribed relating to the case, and shall, at the same
time, forward the accused to such Executive Magistrate, and
thereupon such Executive Magistrate, may, lot reasons to be
recorded in writing, authoress the detention of the accused
person in such custody as he may think fit for a term not
exceeding seven days in the aggregate; and on the expiry of the
period of detention so authorized, the accused person shall be
released on bail except where an order for further detention of
the accused person has been made by a Magistrate competent to
make such order; and, where an order for such further detention
is made, the period during which the accused person was
detained in custody under the orders made by an Executive
Magistrate under this sub-section, shall be taken into account in
computing the period specified in paragraph (a) of the proviso to
sub-section (2):

Provided that before the expiry of the period aforesaid, the

Executive Magistrate shall transmit to the nearest Judicial
Magistrate the records of the case together was a copy of the
entries in the diary relating to the case which was transmitted to
him by the officer in charge of the police station or the police
officer making the investigation, as the case may be.]
(3) A Magistrate authorizing under this section detention in the custody of
the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such
order shall forward a copy of his order, with his reasons for making it,
to the Chief Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the

investigation is not concluded within a period of six months from the
date on which the accused was arrested, the Magistrate shall make an
order stopping further investigation into the offence unless the officer
making the investigation satisfies the Magistrate that for special
reasons and in the interests of justice the continuation of the
investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has
been made under sub-section (5), the Sessions Judge may, if he is
satisfied, on an application made to him or otherwise, that further
investigation into the offence ought to be made, vacate the order made
under sub-section (5) and direct further investigation to be made into
the offence subject to such directions with regard to bail and other
matters as he may specify.

1. Subs, by Act 45 of 1978, sec. 13, for paragraph (a)(w.e.f. 18-12-

1978).

2. Ins. by Act 45 of 1978, sec. 13 (w.e.f. 18-12-1978).

3. Original Explanation numbered as Explanation II by Act 45 of

1978, sec. 13 (w.e.f.18-12-1978).

STATE AMENDMENTS

Andaman and Nicobar Islands and Lakshadweep:

In section 167, –
(i) In sub-section (1) after the words “nearest Judicial Magistrate” the
words “or, if there is no Judicial Magistrate in an island, to an
Executive Magistrate functioning in that island” shall be inserted;

(ii) After sub-section (1), the following sub-section shall be inserted,

namely.

“(1A) Where a copy of the entries in diary is transmitted to an

Executive Magistrate, reference in section 167 to a Magistrate shall be
construed as references to such Executive Magistrate;”

(iii) To sub-section (3), the following proviso shall be added, namely.

“Provided that no Executive Magistrate other than the District

Magistrate or Sub-divisional Magistrate, shall unless he is specially
empowered in this behalf by the State Government authorize detention
in the custody of the police.”

(iv) To sub-section (4), the following proviso shall be added, namely.

“Provided that, where such order is made by an Executive Magistrate,

the Magistrate making the order shall forward a copy of the order,
with his reasons for making it, to the Executive Magistrate to whom
he is immediately subordinate.”

[Vide Regulation 1 of 1974, sec. 5 (w.e.f. 30-3-1974)].

Gujarat:

In the proviso to sub-sec. (2) of section 167, –

(i) For paragraph (a), the following paragraph shall be substituted,

namely.

“(a) The Magistrate may authorize detention of the accused

person otherwise than in the custody of the police, beyond the
period of fifteen days, if he is satisfied that adequate grounds exist
for doing so, but no Magistrate shall authorize the detention of the
accused person in custody under this section for a total period
exceeding-
 (i) One hundred and twenty days, where the investigation relates
to an offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years.

(ii) If sixty days, where the investigation relates to any offence:

And on the expiry, of the said period of one hundred and

twenty days, or sixty days, as the case may be, the accused
person shall be released on bail if he is prepared to and does
furnish bail, and every person released on bail under this
section shall be deemed to be so released under tire
provisions of Chapter XXXIII for the purposes at that
Chapter;

(ii) In paragraph (b), for the words ” no Magistrate shall” the words
“no Magistrate shall, except for reason to be recorded in writing”
shall be substituted:

(iii) The Explanation shall be numbered as Explanation II and before

Explanation II as so remembered, the following Explanation shall
be inserted, namely.

Explanation 1 – For the avoidance of’ doubts, it is hereby, declared that,

notwithstanding the expiry of’ the period specified in paragraph (a) the
accused person shall be detained in custody so long as he does not furnish
bail.

Amendment to apply to pending investigation.-The provisions of’ section

167 of the Code of Criminal Procedure, 1973, as amended by this Act,
shall apply to every investigation pending immediately, before the
commencement of this Act. If the period of’ of detention of’ the accused
person, otherwise than in the custody of the police authorised under that
section, had not, at such commencement, exceeds sixty days.

[Vide President Act 21 of’ 1976 (w.e.f. 7-5-1976)]. [Ed. These

amendments have been made prior to the enactment of the Code of
Criminal Procedure (Amendment) Act, 1978 (Central Act 45 of 1978), sec.
13 (w.e.f. 18-12-1978)].

Haryana:

After section 167, insert the following section namely.

“167A.-Procedure on arrest by Magistrate.- For the avoidance of doubt, it

is hereby declared that the provisions of’ section 167 shall, so far as may
be, apply also in relation to any person arrested by, or under any order or
direction of, Magistrate whether executive or Judicial”

[Vide President Act 20 of 1981, sec. 2 (w.e.f.22-12-1981)].

Orissa:

In section 167, in paragraph (a) of the proviso to sub-section (2),-

(i) for the words “under this paragraph” the words ” under this section”
shall be substituted; and

(ii) for the words “ninety days” wherever they occur, the words “one
hundred and twenty days” shall be substituted

Jurisdiction

177. Ordinary place of inquiry and trial

Every offence shall ordinarily be inquired into and tried by a Court within
whose local jurisdiction it was committed.

178.Place of inquiry or trial

(a) When it is uncertain in which of several local areas an offence was

committed, or

(b) where an offence is committed partly in one local area and partly in
another, or

(c) where an offence is a continuing one and continues to be committed in

more local areas than one, or
(d) where it consists of several acts done in different local areas, it may be
inquired into or tried by a Court having jurisdiction over any of such
local areas.

179. Offence triable, where act is done or consequence ensues

When an act is an offence by reason of anything which has been done and
of a consequence which has ensued, the offence may be inquired into or
tried by a Court within whose local jurisdiction such thing has been done
or such consequence has ensued.

180. Place of trial where act is an offence by reason of relation to other

offence

When an act is an offence by reason of its relation to any other act which is
also an offence or which would be an offence if the doer were capable of
committing an offence, the first-mentioned offence may be inquired into or
tried by a Court within whose local jurisdiction either act was done.

181. Place of trial in case of certain offences

(1) Any offence of being a thug, or murder committed by a thug, of

dacoity, of dacoity with murder, of belonging to a gang of dacoits, or
of escaping from custody, may be inquired into or tried by a Court
within whose local jurisdiction the offence was committed or the
accused person is found.

(2) Any offence of kidnapping or abduction of a person may be inquired

into or tried by a Court within whose local jurisdiction the person was
kidnapped or abducted or was conveyed or concealed or detained.

(3) Any offence of theft, extortion or robbery may be inquired into or

tried by a Court within whose local jurisdiction the offence was
committed or the stolen property which is the subject of the offence
was possessed by any person committing it, or by any person who
received or retained such property knowing or having reason to
believe it to be stolen property.
(4) Any offence of criminal misappropriation or of criminal breach of
trust may be inquired into or tried by a Court within whose local
jurisdiction the offence was committed or any part of the property
which is the subject of the offence was received or retained, or was
required to be returned or accounted for, by the accused person.

(5) Any offence which includes the possession of stolen property may be
inquired into or tried by a Court within whose local jurisdiction the
offence was committed or the stolen property was possessed by any
person who received or retained it knowing or having reason to
believe it to be stolen property.

182. Offences committed by letters, etc

(1) Any offence which includes cheating may, if the deception is

practised by means of letters or tele- communication messages, be
inquired into or tried by any Court within whose local jurisdiction
such letters or messages were sent or were received; and any offence
of cheating and dishonestly inducing delivery of property may be
inquired into or tried by a Court within whose local jurisdiction the
property was delivered by the person deceived or was received by the
accused person.

(2) Any offence punishable under section 494 or section 495 of the Indian
Penal Code (45 of 1860) may be inquired into or tried by a Court
within whose local jurisdiction the offence was committed or the
offender last resided with his or her spouse by the first marriage, [or
the wife by the first marriage has taken up permanent residence after
the commission of the offence.]

183. Offence committed on journey or voyage

When an offence is committed whilst the person by or against whom, or

the thing in respect of which, the offence is committed is in the course of
performing a journey or voyage, the offence may be inquired into or tried
by a Court through or into whose local jurisdiction that person or thing
passed in the course of that journey or voyage.
184. Place of trial for offences triable together

Where –

(a) the offences committed by any person are such that he may be charged
with, and tried at one trial for, each such offence by virtue of the
provisions of section 219, section 220 or section 221, or

(b) the offence or offences committed by several persons are such that
they may be charged with and tried together by virtue of the
provisions of section 223, the offences may be inquired into or tried
by any Court competent to inquire into or try any of the offences.

185. Power to order cases to be tried in different sessions divisions

Notwithstanding anything contained in the preceding provisions of this

Chapter, the State Government may direct that any cases or class of cases
committed for trial in any district may be tried in any sessions division:

Provided that such direction is not repugnant to any direction previously

issued by the High Court or the Supreme Court under the Constitution, or
under this Code or any other law for the time being in force.

186. High Court to decide, the case of doubt, district where inquiry or trial
shall take place

Where two or more Courts have taken cognizance of the same offence and
a question arises as to which of them ought to inquire into or try that
offence, the question shall be decided –

(a) if the Courts are subordinate to the same High Court, by that High
Court;

(b) if the Courts are not subordinate to the same High Court, by the High
Court within the local limits of whose appellate criminal jurisdiction
the proceedings were first commenced, and thereupon all other
proceedings in respect of that offence shall be discontinued.
187. Power to issue summons or warrant for offence committed
beyond local jurisdiction

(1) When a Magistrate of the first class sees reason to believe that any
person within his local jurisdiction has committed outside such
jurisdiction (whether within or outside India) an offence which cannot,
under the provisions of sections 177 to 185 (both inclusive), or any
other law for the time being in force, be inquired into or tried within
such jurisdiction but is under some law for the time being in force
triable in India, such Magistrate may inquire into the offence as if it
had been committed within such local jurisdiction and compel such
person in the manner hereinbefore provided to appear before him, and
send such person to the Magistrate having jurisdiction to inquire into
or try such offence, or, if such offence is not punishable with death or
imprisonment for life and such person is ready and willing to give bail
to the satisfaction of the Magistrate acting under this section, take a
bond with or without sureties for his appearance before the Magistrate
having such jurisdiction.

(2) When there are more Magistrates than one having such jurisdiction
and the Magistrate acting under this section cannot satisfy himself as
to the Magistrate to or before whom such person should be sent or
bound to appear, the case shall be reported for the orders of the High
Court.

188. Offence committed outside India

When an offence is committed outside India –

(a) by a citizen of India, whether on the high seas or elsewhere; or

(b) by a person, not being such citizen, on any ship or aircraft registered
in India, he may be dealt with in respect of such offence as if it had
been committed at any place within India at which he may be found :
Provided that, notwithstanding anything in any of the preceding sections of
this Chapter, no such offence shall be inquired into or tried in India except
with the previous sanction of the Central Government.

189. Receipt of evidence relating to offences committed outside India

When any offence alleged to have been committed in a territory outside

India is being inquired into or tried under the provisions of section 188, the
Central Government may, if it thinks fit, direct that copies of depositions
made or exhibits produced before a judicial officer in or for that territory
or before a diplomatic or consular representative of India in or for that
territory shall be received as evidence by the Court holding such inquiry or
trial in any case in which such Court might issue a commission for taking
evidence as to the matters to which such depositions or exhibits relate.

Time limitations

Chapter 36 – Limitation For Taking Cognizance Of Certain Offences

Provisions of this Chapter shall not apply to certain economics offences,

see the Economic Offences (Inapplicability of Limitation Act, 1974 (12 of
1974), section 2 and Schedule.

Section 457: Definitions

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.

Section 458: Bar to taking Cognizance after the lapse of the period of
limitation

Except as otherwise provided elsewhere in this Code, no Court, shall take

cognizance of an offence of the category specified in Sub-Section (2), after
the expiry of the period of limitation.
The period of limitation shall be-

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

b. one year, if the offence is punishable with imprisonment for a

term not exceeding one year;

c. three years, if the offence is punishable with imprisonment for a

term exceeding one year but not exceeding three years.

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

The period of limitation, in relation to an offence, shall commence,

a. on the date of the offence; or

b. where the commission of the offence was not known to the person
aggrieved by the offence or to any police officer, the first day on
which such offence comes to the knowledge of such person or to
any police officer, whichever is earlier; or

c. where it is not known by whom the offence was committed, the

first day on which the identity of the offender is known to the
person aggrieved by the offence or to the police officer making
investigation into the offence, whichever is earlier.

In computing the said period, the day from which such period is to be
computed shall be excluded.

Section 470: Exclusion of time in certain cases

1. In computing the period of limitation, the time during which any

person has been prosecuting with due diligence another prosecution,
whether in a Court of first instance or in a Court of appeal or revision,
against the offender, shall be excluded:
2. Provided that no such exclusion shall be made unless the prosecution
relates to the same facts and is prosecuted in good faith in a Court
which from defect of jurisdiction or other cause of a like nature, is
unable to entertain it.

3. Where the institution of the prosecution in respect of an offence has

been stayed by an injunction or order, then, in computing the period of
limitation, the period of the continuance of the injunction or order, the
day on which it was issued or made, and the day on which it was
withdrawn, shall be excluded.

4. Where notice of prosecution for an offence has been given, or where,

under any law for the time being in force, the previous consent or
sanction of the Government or any other authority is required for the
institution of any prosecution for an offence, than, in computing the
period of limitation, the period of such notice or, as the case may be,
the time required for obtaining such consent or sanction shall be
excluded.

Explanation – In computing the time required for obtaining the consent or

sanction of the Government or any other authority, the date on which the
application was made for obtaining the consent or sanction and the date of
receipt of the order of the Government or other authority shall both be
excluded.

1. In computing the period of limitation, the time during which the

offender:

a. has been absent from the India or from any territory outside India
which is under the administration of the Central Government, or

b. has avoided arrest by absconding or concealing himself,

shall be excluded.

Section 471: Exclusion of Date in which Court is closed

Where the period of limitation expires on a day when the Court is closed,
the Court may take cognizance on the day on which the Court reopens.
Explanation – A Court shall be deemed to be closed on any day within the
meaning of this section, if, during its normal working hours, it remains
closed on that day.

Section 472: Continuing Offence

In the case of a continuing offence, a fresh period of limitation shall begin

to run at every moment of the time during which the offence continues.

Section 473: Extension of Period of Limitation in certain cases

Notwithstanding anything contained in the foregoing provisions of this

Chapter, any Court may make cognizance of an offence after the expiry of
the period of limitations, if it is satisfied on the facts and in the
circumstances of the case that the delay has been properly explained or
that it is necessary so to do in the interests of justice.

PLEA OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT.

It has been noticed that the doctrine of autrefois convict and autrefois
acquit has been considered as an essential attribute of the fair trial.
Autrefois convict is a French word which means ‘previously convicted’.
Through this, the defendant claims to have been previously convicted for
the same offence and that hence they cannot be tried again. The plea of
autrefois acquit means ‘previously acquitted’ and through this the
defendant claims to have been previously acquitted of the same offence
and that hence he or she cannot be tried again.

Objective of the Plea

The plea is taken to bar the criminal trial. The ground for raising the plea is
that the accused person was already charged and tried for the same alleged
offence. Also, the trial resulted in either acquittal or conviction of the
accused. These rules are also based upon the principle that “a person
cannot be tries for the same offence more than once”. The same has been
recognized by the Indian constitution as a fundamental right.
Provisions under the CrPC

In the Criminal Procedure Code of 1898, 403 dealt with provision, barring
second prosecution for same offences. Section 300 of the Criminal
Procedure Code, 1973 touches upon the doctrine. It lays down that: 300.
Person once convicted or acquitted not to be tried for same offence. (1) A
person who has once been tried by a court of competent jurisdiction for an
offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable to be tried again for
the same offence, nor on the same facts for any other offence for which a
different charge from the one made against him might have been made
under sub-section (1) of section 221, or for which he might have been
convicted under subsection (2) thereof. (2) A person acquitted or convicted
of any offence afterwards tried with the consent of ore State Government
for any distinct offence for which a separate charges have been made
against him at the former trial under sub-section (1) of section 220. (3) A
person convicted of any offence constituted by any act causing
consequences which, together with such act, constituted a different offence
from that of which he was convicted, may be afterwards tried for such last-
mentioned offence, if the consequences had not happened or were not
known to the court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts
may, notwithstanding such acquittal or conviction be subsequently charged
with, and tried for, any other offence constituted by the same acts which he
may have committed if the Court by which he was first tried was not
competent to try the offence with which he is subsequently charged. (5) A
person discharged under section 258 shall not be tried again for the same
offence except with the consent of the court by which he was discharged
or of any other court to which the first mentioned court is subordinate. (6)
Nothing in this section shall affect the provisions of section 26 of the
General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.
Explanation. The dismissal of a complaint, or the discharge of the accused,
is not an acquittal for the purposes of this section. This section lays down
that the person, once convicted or acquitted cannot be tried for the same
offence. It has been based on the maxim nemo debet bis vexari, which
means that a person cannot be tried again for an offence which is involved
in the offence, with which he was previously charged. ESSENTIALS OF
THE PLEA. To take the plea of autrefois convict and autrefois acquit,
following conditions must be satisfied:

1. the accused had been tried by a court;

2. the court must be of competent jurisdiction; and

3. He has been acquitted of an offence alleged to have been

committed by him or an offence with which he might have been
charged under S. 221(1) or convicted of an offence under S.
221(2).

Fair Trial

In the battle against crime and delinquency, state and its officers cannot on
any account forsake the decency of state behaviour and have recourse to
extra-legal methods for the sake of detention of crimes and even criminals.
State should not insist on good behaviour from others when their own
behaviour is blameworthy, unjust and illegal. Thus, in a democratic society
even the rights of the accused are sacrosanct, though accused of an
offence, he does not become a non-person. In the leading case of Kishore
Singh Ravinder Dev v. State of Rajasthan, it was said that the laws of India
i.e. Constitutional, Evidentiary and procedural have made elaborate
provisions for safeguarding the rights of accused with the view to protect
his (accused) dignity as a human being and giving him benefits of a just,
fair and impartial trail.

Articles 10 of the UDHR declares that everyone entitle in full equality to a

fair and public hearing by an independent and impartial tribunal, in the
determination of his legal rights and obligation and of any criminal
charges against him. Articles 14(1) of the international covenants on civil
and political rights provide that all people shall be equal before the court
and tribunals.

There are various facets to the right to a fair trial. The Hon’ble Supreme
Court in the case of Zahira Habibullah Sheikh & Anr vs State Of Gujarat
has held that, “the principle of fair trial now informs and energizes many
areas of the law. It is reflected in numerous rules and practices.... fair trial
obviously would mean a trial before an impartial Judge, a fair prosecutor
and atmosphere of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or the cause which is
being tried is eliminated.” The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and the society and it is
the community that acts through the State and prosecuting agencies. Most
of these safeguards to ensure a fair trial are contained under the Code of
Criminal Procedure, 1973 which contains and defines the procedure which
has to be followed in criminal cases.

The concept of a fair trial cannot be limited to a statute and the Courts
have gradually expanded it to include various aspects of criminal
procedure. For instance the Supreme Court has also in the past transferred
cases from one state to another when it is reasonably anticipated that the
accused will not be afforded a fair trial or the court process may be
interfered with by extraneous considerations.

Concept of a Fair Trial

The right to a fair trial is a norm of international human rights law and also
adopted by many countries in their procedural law. Countries like U.S.A.,
Canada, U.K., and India have adopted this norm and it is enshrined in their
Constitution. The right to a fair trial has been defined in numerous
international instruments. The major features of fair criminal trial are
preserved in Universal Declaration of Human Rights, 1948.
Article 10[i]- Everyone is entitled in full equality to a fair and public
hearing by an independent and impartial tribunal, in the determination of
his rights and obligations and of any criminal charge against him.

Article 11[ii]- (1) Everyone charged with a penal offence has the right to
be presumed innocent until proved guilty according to law in a public trial
at which he has had all the guarantees necessary for his defence. (2) No
one shall be held guilty of any penal offence on account of any act or
omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a heavier
penalty be imposed than the one that was applicable at the time the penal
offence was committed.

Article 14 of the International Covenant on Civil and Political Rights

reaffirmed the objects of UDHR and provides that “Everyone shall be
entitled to a fair and public hearing by a competent, independent and
impartial tribunal established by law. Article 14(2) provides for the
presumption of innocence, and article 14(3) sets out a list of minimum fair
trial rights in criminal proceedings. Article 14(5) establishes the rights of a
convicted person to have a higher court review the conviction or sentence,
and article 14(7) prohibits double jeopardy

Section 11 of the Canadian Charter of Rights and Freedoms, protects a

person’s basic legal rights in criminal prosecution.

Article 6 of the European Convention on Human Rights provides the

minimum rights, adequate time and facilities to prepare their defence,
access to legal representation, right to examine witnesses against them or
have them examined, right to the free assistance of an interpreter to
everyone charged with a criminal offence.

The Sixth Amendment to the United States Constitution provides in all

criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the state and district wherein the crime
shall have been committed, which district shall have been previously
ascertained by law, and to be informed of the nature and cause of the
accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.

As far as Indian legal system is concerned, the international promise of fair

trial is very much reflected in its constitutional scheme as well as its
procedural law. Indian judiciary has also highlighted the pivotal role of fair
trial in a number of cases. It is designed to protect individuals from the
unlawful and arbitrary curtailment or deprivation of their basic rights and
freedoms, the most prominent of which are the right to life and liberty of
the person. The concept of fair trial is based on the basic principles of
natural justice.

Fair Trial

The concept of fair trial is based on the basic ideology that State and its
agencies have the duty to bring the offenders before the law. In their battle
against crime and delinquency, State and its officers cannot on any account
forsake the decency of State behaviour and have recourse to extra-legal
methods for the sake of detection of crime and even criminals. For how
can they insist on good behaviour from other when their own behaviour is
blameworthy, unjust and illegal? Therefore the procedure adopted by the
State must be just, fair and reasonable. The Indian courts have recognised
that the primary object of criminal procedure is to ensure a fair trial of
accused persons.[iii] Human life should be valued and a person accused of
any offence should not be punished unless he has been given a fair trial
and his guilt has been proved in such trial.

In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors.[iv] The
Supreme Court of India observed “each one has an inbuilt right to be dealt
with fairly in a criminal trial. Denial of a fair trial is as much injustice to
the accused as it is to the victim and to society. Fair trial obviously would
mean a trial before an impartial judge, a fair prosecutor and an atmosphere
of judicial calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witness or the cause which is being tried, is
eliminated.”

The right to a fair trial is a fundamental safeguard to ensure that

individuals are protected from unlawful or arbitrary deprivation of their
human rights and freedoms, most importantly of the right to liberty and
security of person.

Principles Of Fair Trial

1. Adversary trial system:

The system adopted by the Criminal Procedure Code, 1973 is the

adversary system based on the accusatorial method. In adversarial system
responsibility for the production of evidence is placed on the prosecution
with the judge acting as a neutral referee. This system of criminal trial
assumes that the state, on one hand, by using its investigative agencies and
government counsels will prosecute the wrongdoer who, on the other hand,
will also take recourse of best counsels to challenge and counter the
evidences of the prosecution.

Supreme Court has observed “if a Criminal Court is to be an effective

instrument in dispensing justice, the presiding judge must cease to be a
spectator and a mere recording machine. He must become a participant in
the trial by evincing intelligent active interest.”[v]

In Himanshu Singh Sabharwa v. State of M.P. and Ors.[vi], the apex court
observed that if fair trial envisaged under the Code is not imparted to the
parties and court has reasons to believe that prosecuting agency or
prosecutor is not acting in the requisite manner the court can exercise its
power under section 311 of the Code or under section 165 of the Indian
Evidence Act, 1872 to call in for the material witness and procure the
relevant documents so as to sub serve the cause of justice.
2. Presumption of innocence:

Every criminal trial begins with the presumption of innocence in favour of

the accused. The burden of proving the guilt of the accused is upon the
prosecution and unless it relieves itself of that burden, the courts cannot
record a finding of the guilt of the accused. This presumption is seen to
flow from the Latin legal principle ei incumbit probatio qui dicit, non qui
negat, that is, the burden of proof rests on who asserts, not on who denies.

In State of U.P. v. Naresh and Ors.[vii] the Supreme Court observed

“every accused is presumed to be innocent unless his guilt is proved. The
presumption of innocence is a human right subject to the statutory
exceptions. The said principle forms the basis of criminal jurisprudence in
India.”

In Kali Ram v. State of H.P. [viii]the Supreme Court observed “it is no

doubt that wrongful acquittals are undesirable and shake the confidence of
the people in the judicial system, much worse; however is the wrongful
conviction of an innocent person. The consequences of the conviction of
an innocent person are far more serious and its reverberations cannot be
felt in a civilized society.”

It is the duty of the prosecutor and defence counsel as well as all public
authorities involved in a case to maintain the presumption of innocence by
refraining from pre-judging the outcome of the trial.

3. Independent, impartial and competent judges:

The basic principle of the right to a fair trial is that proceedings in any
criminal case are to be conducted by a competent, independent and
impartial court. In a criminal trial, as the state is the prosecuting party and
the police is also an agency of the state, it is important that the judiciary is
unchained of all suspicion of executive influence and control, direct or
indirect. The whole burden of fair and impartial trial thus rests on the
shoulders of the judiciary in India.
The primary principle is that no man shall be judge in his own cause.
Section 479 of the Code, prohibits trial of a case by a judge or magistrate
in which he is a party or otherwise personally interested. This
disqualification can be removed by obtaining the permission of the
appellate court.

In Shyam Singh v. State of Rajasthan[ix], the court observed that the

question is not whether a bias has actually affected the judgement. The real
test is whether there exists a circumstance according to which a litigant
could reasonably apprehend that a bias attributable to a judicial officer
must have operated against him in the final decision of the case.

In this regard section 6 of the Code is relevant which separates courts of

Executive Magistrates from the courts of Judicial Magistrates. Article 50
of the Indian Constitution also imposes similar duty on the state to take
steps to separate the judiciary from the executive.

4. Autrefois Acquit and Autrefois Convict:

According to this doctrine, if a person is tried and acquitted or convicted of

an offence he cannot be tried again for the same offence or on the same
facts for any other offence. This doctrine has been substantially
incorporated in the article 20(2) of the Constitution and is also embodied
in section 300 of the Cr. P.C.

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao[x] the

Supreme Court observed that Section 300(1) of Cr.P.C. is wider than
Article 20(2) of the Constitution. While, Article 20(2) of the Constitution
only states that ‘no one can be prosecuted and punished for the same
offence more than once’, Section 300(1) of Cr.P.C. states that no one can
be tried and convicted for the same offence or even for a different offence
but on the same facts. In the present case, although the offences are
different but the facts are the same. Hence, Section 300(1) of Cr.P.C.
applies. Consequently, the prosecution under Section 420, IPC was barred
by Section 300(1) of Cr.P.C. The impugned judgment of the High Court
was set aside.
Presumptions of Innocence

There is a presumption of innocence in favour of the accused under Indian

law. It has been held that it is trite law that presumption of innocence is a
human right and cannot be overthrown. But it has to be applied subject to
certain exceptions.(Noor Aga v. State of Punjab (2008). In Vinod Solanki
v. Union of India ( ), the Supreme Court held:

It is now a well settled principle that presumption of innocence as

contained in Article 14(2) of the International Covenant on Civil and
Political Rights is a human right although per se it may not be treated to
be a fundamental right within the meaning of Article 21 of the
Constitution of India.

What this means is that although the presumption of innocence is

recognized under Indian law, there are exceptions to this law. Therefore,
where a statute provides that the accused has to prove certain things, the
presumption is reversed, i.e. the accused has to prove his innocence. Such
laws have been held to be Constitutional, but at the same time the Supreme
Court has said that the procedure of such laws has to be clearly followed
and strictly interpreted. If there are two views possible, the view in favour
of the accused should be favoured (State of Uttar Pradesh v. Samman Das
(1972 AIR 677 1972 SCR (3) 58).

The following are some examples of laws that displace the rule of
presumption of innocence:

1. Offences resulting in imprisonment: Under the Criminal Procedure

Code, 1973, offences are classified as bailable and non-bailable
offences. In a non-bailable offence, an accused is detained in jail even
though his innocence is unproved, and he is not entitled to obtain bail.
Even in bailable offences, the accused is detained in jail, but can
secure release by applying for bail. This is done on the basis that
society needs to be protected.
2. Presumptions under the Indian Evidence Act, 1872: There are
certain presumptions contained in Section 113A, 113B and 114A of
the said Act against the accused. The offences are in cases of death of
a married woman within 7 years of marriage, dowry death and
prosecutions in respect of rapes.

3. Narcotics and Psychotropic Substances Act, 1985: This Act raises a

presumption that an accused had a culpable state of mind to commit
an offence under the said Act.

4. Negotiable Instruments Act, 1881 - In cases of cheque bouncing, it

is presumed that the holder of the cheque had received the cheque in
discharge of a debt. The fact that a cheque was paid for discharge of a
debt is essential to form a crime in respect of cheque bouncing
(punishment including imprisonment).

Please note that Article 21 states that no man should be deprived of his
life or liberty except in accordance with the procedure established by
law. Therefore, if the law provides, the presumption of innocence of the
accused can be overthrown.

Venue of trial

Section 177 provides the ordinary place of inquiry and trial. It says, ‘every
offence shall ordinarily be inquired into and tried by a court within who’s
local jurisdiction it was committed.’

The rule is of expediency. Considering the size of the country, the distance
of the courts from the place of crime and difficulties of transport in the
interior, it would seem expedient and desirable that the inquiry and trial
should ordinarily take place in the vicinity of crime. As the witnesses can
be reasonably be expected to be available in that locality. It would be
convenient both to the prosecution and the defence if the trial took place in
the court of that locality. It is also felt that the sense of social security is
better maintained by requiring the dispensation of criminal justice to be
done in the vicinity of the crime. Where the offence consists in acts of
omission , such offence, according to section 177 is to be tried in the court
under whos jurisdiction it falls under. If a court has taken cognizance of
an offence according to the rule contained in the section 177 and thereafter
a change takes place in the territorial jurisdiction of the court, a question
may arise as to whether the court loses its jurisdiction to try that offence. It
has been held that the jurisdiction of the court to try such offence shal
remain unaffected by any subsequent change in the territorial jurisdiction
of the court. The place of inquiry or trial of an offence is primarily to be
determined by the averments contained in the complaint of the police
report as to where and how the offence was committed. In the absence of
any proof to the contrary the court has to be presumed to have jurisdiction
in the basis of facts made out by the averments.

Constitutional interpretation of Article 21 as a right to speedy trial

The philosophy of Right to Speedy trial has grown in age but its goals are
yet unforeseen. Right to Speedy Trail is a concept which deals with
disposal of cases as soon as possible so as to make the Judiciary more
efficient and trustworthy. The main aim of Right to Speedy trial is to
inculcate Justice in the society. It is the human life that necessitates human
rights. Being in a civilized society organized with law and a system as
such, it is essential to ensure for every citizen a reasonably dignified life.
Thus every right is a human right as that helps a human to live like a
human being. The very basic purpose for which every state machinery sets
up the court system is to award justice to the victims of crimes. The
constitution of India imposes heavy duty on the judicial system for
providing legal mechanism to deal with problem relating to imparting
justice. The setting up an independent judicial system, inclusion of
fundamental rights and directive principles of state polices further shows
the commitment of our constitution makers in making the judicial system
an effective organ of state machinery on which people can rely with trust
and hope of justice.
The right to a speedy trial is first mentioned in that landmark document of
English law, the Magna Carta. Article 21 declares that “no person shall be
deprived of his life or personal liberty except according to the procedure
laid by law.” Justice Krishna Iyer while dealing with the bail petition in
Babu Singh v. State of UP1, remarked, "Our justice system even in grave
cases, suffers from slow motion syndrome which is lethal to 'fair trial'
whatever the ultimate decision. Speedy justice is a component of social
justice since the community, as a whole, is concerned in the criminal being
condignly and finally punished within a reasonable time and the innocent
being absolved from the inordinate ordeal of criminal proceedings." Right
to speedy trial is a concept gaining recognition and importance day by day.

Speedy trial is a fundamental right implicit in the guarantee of life and

personal liberty enshrined in Article 21 of the Constitution and any
accused who is denied this right of speedy trial is entitled to approach
Supreme Court under Article 32 for the purpose of enforcing such right.
and this Court in discharge of its constitutional obligation has the power to
give necessary directions to the State Governments and other appropriate
authorities for securing this right to the accused.

In Hussainara Khatoon v. Home Secretary, State of Bihar[lxxxiv], it

was brought to the notice of the Supreme Court that an alarming number
of men, women and children were kept in prisons for years awaiting trial
in courts of law. The Court took a serious note of the situation and
observed that it was carrying a shame on the judicial system that permitted
incarceration of men and women for such long periods of time without
trials.

The Court held that detention of under-trial prisoners, in jail for period
longer than what they would have been sentenced if convicted, was illegal
as being in violation of Article of 21. The Court, thus, ordered the release
from jail of all those under-trial prisoners, who had been in jail for longer
period than what they could have been sentenced had they been convicted
In A.R. Antulay v. R.S. Nayak[lxxxv], a Constitution Bench of five
judges of the Supreme Court dealt with the question and laid down certain
guidelines for ensuring speedy trial of offences some of them have been
listed below[lxxxvi]:

Fair, just and reasonable procedure implicit in Article 21 creates a right in

the accused to be tried speedily.

Right to speedy trial flowing from Article 21 encompasses all the stages,
namely the stage of investigation, inquiry, appeal, revision and retrial.

The concerns underlying the right of speedy trial from the point of view of
the accused are:

The period of remand and pre-conviction detention should be as short as

possible.

The worry, anxiety, expense and disturbance to his vocation and peace,
resulting from an unduly prolonged investigation, enquiry or trial should
be minimal; and

Undue delay may well result in impairment of the ability of the accused to
defend him.

While determining whether undue delay has occurred, one must have
regard to all the attendant circumstances, including nature of offence,
number of accused and witnesses, the workload of the court concerned.
Each and every delay does not necessarily prejudice the accused. An
accuser’s plea of denial of speedy trial cannot be defeated by saying that
the accused did at no time demand a speedy trial

In the case of Anil Rai v. State of Bihar[lxxxvii], the Supreme Court

directed the Judges of the High Courts to give quick judgements and in
certain circumstances the parties are to submit application to the Chief
Justice to move case to other bench or to do the needful at his discretion.
Trial before a Court of Session:

Procedural steps and substantiate rights

225. Trial to be conducted by Public Prosecutor.

225. Trial to be conducted by Public Prosecutor. – In every trial before a

Court of Session, the prosecution shall be conducted by a Public
Prosecutor.

226. Opening case for prosecution.

226. Opening case for prosecution. – When the accused appears or is

brought 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 proposes to
prove the guilt of the accused.

227. Discharge.

227. Discharge. – If, upon consideration of the record of the case and the
documents submitted therewith, and after hearing the submissions 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 so doing.

228. Framing of charge.

228. Framing of charge. –

(1) If, after such consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the accused has
committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a

charge against the accused and, by order, transfer the case for trial
to the Chief Judicial Magistrate, and thereupon the Chief Judicial
Magistrate shall try the offence in accordance with the procedure
for the trial of warrant-cases instituted on a police report;
 (b) is exclusively triable by the Court, he shall frame in writing a
charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section
(1), the charge shall be read and explained to the accused and the
accused shall be asked whether he pleads guilty of the offence charged
or claims to be tried.

229. Conviction on plea of guilty.

229. Conviction on plea of guilty. – If the accused pleads guilty, the Judge
shall record the plea and may, in his discretion, convict him thereon.

230. Date for prosecution evidence.

230. Date for prosecution evidence. – If the accused refuses to plead, or

does not plead, or claims to be tried or is not convicted under section 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.

231. Evidence for prosecution.

231. Evidence for prosecution. – (1) On the date so fixed, the Judge shall
proceed to take all such evidence as may be produced in support of the
prosecution.

(2) The Judge may, in his discretion, permit the cross- examination of any
witness to be deferred until any other witness or witnesses have been
examined or recall any witness for further cross- examination.

232. Acquittal.

232. Acquittal. – If, after taking the evidence for the prosecution,
examining the accused and hearing the prosecution and the defence on the
point, the 919 Judge considers that there is no evidence that the accused
committed the offence, the Judge shall record an order of acquittal.
233. Entering upon defence.

233. Entering upon defence. –

(1) Where the accused is not acquitted under section 232, he shall be
called upon to enter on his defence and adduce any evidence he may
have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with
the record.

(3) If the accused applies for the issue of any process for compelling the
attendance of any witness or the production of any document or thing,
the Judge shall issue such process unless he considers, for reasons to
be recorded, 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.

234. Arguments.

234. Arguments. – When the examination of the witnesses (if any) for the
defence is complete, the prosecutor shall sum up his case and the accused
or his pleader shall be entitled to reply :

Provided that where any point of law is raised by the accused or his
pleader, the prosecution may, with the permission of the Judge, make his
submissions with regard to such point of law.

235. Judgment of acquittal or conviction.

235. Judgment of acquittal or conviction. –

(1) After hearing arguments and points of law (if any), the Judge shall
give a judgment in the case.

(2) If the accused is convicted, the Judge shall, unless he proceeds in

accordance with the provisions of section 360, hear the accused on the
question of sentence, and then pass sentence on him according to law.
236. Previous conviction.

236. Previous conviction. – In a case where a previous conviction is

charged under the provisions of sub-section (7) of section 211, and the
accused does not admit that he has been previously convicted as alleged in
the charge, the Judge may, after he has convicted the said accused under
section 229 or section 235, take evidence in respect of the alleged previous
conviction, and shall record a finding thereon:

Provided that no such charge shall be read out by the Judge nor shall the
accused be asked to plead thereto nor shall the previous conviction be
referred to by the prosecution or in any evidence adduced by it, unless and
until the accused has been convicted under section 229 or section 235.

237. Procedure in cases instituted under section 199(2).

237. Procedure in cases instituted under section 199(2). –

(1) A Court of Session taking cognizance of an offence under sub-section

(2) of section 199 shall try the case in accordance with the procedure
for the trial of warrant-cases instituted otherwise than on a police
report before a Court of Magistrate :

Provided that the person against whom the offence is alleged to have
been committed shall, unless the Court of Session, for reasons to be
recorded, otherwise directs, be examined as a witness for the
prosecution.

(2) Every trial under this section shall be held in camera if either party
thereto so desires or if the Court thinks fit so to do.

(3) If, in any such case, the Court discharges or acquits all or any of the
accused and is of opinion that there was no reasonable cause for
making the accusation against them or any of them, it may, by its
order of discharge or acquittal, direct the person against whom the
offence was alleged to have been committed (other than the President,
Vice-President or the Governor of a State or the Administrator of a
 Union territory) to show cause why he should not pay compensation
to such accused or to each or any of such accused, when there are
more than one.

(4) The Court shall record and consider any cause which may be shown
by the person so directed, and if it is satisfied that there was no
reasonable cause for making the accusation, it may, for reasons to be
recorded, make an order that compensation to such amount not
exceeding one thousand rupees, as it may determine, be paid by such
person to the accused or to each or any of them.

(5) Compensation awarded under sub-section (4) shall be recovered as if

it were a fine imposed by a Magistrate.

(6) No person who has been directed to pay compensation under

subsection (4) shall, by reason of such order, be exempted from any
civil or criminal liability in respect of the complaint made under this
section;

Provided that any amount paid to an accused person under this section
shall be taken into account in awarding compensation to such person
in any subsequent civil suit relating to the same matter.

(7) The person who has been ordered under sub-section (4) to pay
compensation may appeal from the order, in so far as it relates to the
payment of compensation, to the High Court.

(8) When an order for payment of compensation to an accused person is

made, the compensation shall not be paid to him before the period
allowed for the presentation of the appeal has elapsed, or, if an appeal
is presented, before the appeal has been decided.

Accusatorial and inquisitorial systems

The Oxford Dictionary defines the word ‘adversary’ as ‘one’s opponent in

a contest, conflict, or dispute’. That definition goes some way to
explaining the adversarial legal system in the England and Wales under
which, essentially, representatives from each party take opposing positions
to debate and argue their case, whilst the Judge's role is to uphold
principles of fairness and equality and to remain neutral until the very end
when he gives judgment. This contrasts with the inquisitorial legal system
(commonly found in civil law countries e.g. France / Italy) which sees the
Judge take a much more active role in preparing evidence, questioning
witnesses and finding the truth.

In an adversarial legal system, previous decisions made by higher Courts

form a precedent which will bind the lower Courts. In contrast, Judges in
an inquisitorial legal system tend to be free to make decisions on a case-
by-case basis.

The principle behind the adversarial legal system is to place distance

between the investigation taking place and the person who ultimately
decides the outcome. The system empowers the parties to the dispute to
take control of their own case on the basis that they (as opposed to a judge)
are better placed to present their best case.

However, even though an English Judge may not decide what matters to
investigate and how to do so, his role is by no means passive. Under the
Civil Procedure Rules ("CPR") which came into force in 1999, the Court
has very wide case management powers which are used to ensure that the
dispute is resolved efficiently and in accordance with the CPR’s overriding
objective of enabling the Court to deal with cases justly and at a
proportionate cost. The Court will do so by excluding superfluous
evidence, managing the parties' costs, and setting a strict timetable to Trial
under threat of sanction should any of the dates be missed.

There is, however, a perceived unfairness in the adversarial legal system in

situations where the parties do not have 'equality of arms'; a better
resourced party may be more able to gather evidence and present a
stronger case to the Judge than their opposition. Furthermore, because the
parties have near complete conduct of the case from start to judgment, they
are able to choose what evidence they put before the Court. In comparison,
in an inquisitorial system the Judge is involved throughout the process and
actually steers the collation and preparation of evidence. He is therefore
able to decide what evidence is admitted by both parties, before
questioning the witnesses himself and going on to make an informed
decision on the outcome.

That said, given the importance placed on the investigative role of an

inquisitorial Judge, the risk of bias is (arguably) greater in an inquisitorial
system.

Summary Trial

Section 260 provides that any Chief Judicial Magistrate or Metropolitan

Magistrate or a Magistrate of the First Class specially empowered by the
High Court may try summarily certain offences which are enumerated in
that Section.

The offences are generally simple offences for which the imprisonment
prescribed does not exceed two years. Even offences like theft etc., may be
tried summarily if the property involved is not more than Rs. 200/ - in
value.

In the case of a summary trial as soon as the accused is brought before the
Court he is questioned with reference to the accusation levelled against
him under Section 251 Cr.P.C.

If he pleads guilty that fact should be recorded in the summary trials

register, but the case record should contain the questions put to the accused
and the answer given by him in his own words.

When the accused pleads guilty the Magistrate can immediately pass an
appropriate sentence by making an entry in the prescribed column in the
summary trials register.
No separate judgment need be pronounced in such a case. If on the other
hand the accused pleads not guilty the evidence of the prosecution
witnesses should be recorded.

But here again there is no need to record the evidence of the witnesses in
the form of elaborate depositions as is done in the case of normal trial, but
only the substance of their statements need be recorded in the form of
memoranda which need not be signed by the witnesses.

But prudence requires that even in summary trials the statements of

witnesses are recorded faithfully and elaborately and there is nothing
wrong in obtaining the signatures of the witnesses under their statements.

If the recording of the prosecution evidence is over, the accused is

questioned briefly with reference to it and his answers are once again
recorded and the accused is also asked to produce the Defense if any.

If the Accused produces any witness the same shall be recorded and the
cardinal rule of law of hearing the arguments and accepting the written
argument if any submitted by accused under Section 314 of I.P.C.
thereafter a judgment of conviction or acquittal as the case may be, is
pronounced.

Questions

1. Complaint as a criminal procedure

2. Describe Contents of a Charge

3. Explain Anticipatory Bail

4. List out the Principles Of Fair Trial

BLOCK 4 - EVIDENCE IN CRIMINAL CASES

Definitions

The Indian Evidence Act, 1872 is the Indian Law of Evidence. The Act is
contained in 167 sections and one schedule. The schedule is repealed using
the Repealing Act, 1938. Several amendments are later made to the act.
The updated Act contained 182 sections.

According to the Indian Evidence Act, "Evidence" means and includes

(1) all statements which the Court permits or requires to be made before it
by witnesses, in relation to matters of fact under inquiry; such
statements are called oral evidence;

(2) all documents produced for the inspection of the Court; such
documents are called documentary evidence.

Court‖ includes all Judges8 and Magistrates 9 and all persons, except
arbitrators, legally authorized to take evidence. Fact means and includes
(1) anything, state of things, or relation of things, capable of being
perceived by the senses; (2) any mental condition of which any person is
conscious.

Relevant. One fact is said to be relevant to another when the one is

connected with the other in any of the ways referred to in the provisions of
this Act relating to the relevancy of facts. Facts in issue‖ The expression
Facts in issue‖ means and includes any fact from which, either by itself or
in connection with other facts, the existence, non-existence, nature or
extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows. Explanation.Whenever, under the
provisions of the law for the time being in force relating to Civil
Procedure,1 any Court records an issue of fact, the fact to be asserted or
denied in the answer to such issue issue is a fact in issue.

Document 2means any matter expressed or described upon any substance

by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording
that matter.
Proved‖. A fact is said to be proved when, after considering the matters
before it, the Court; either believes it to exist, or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists. Disproved‖. A fact
is said to be disproved when, after considering the matters before it, the
Court either believes that it does not exist, or considers its non-existence
so probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it does not exist. Not
proved‖. A fact is said not to be proved when it is neither proved nor
disproved. 1 India. India‖ means the territory of India excluding the State
of Jammu and Kashmir. 2 the expressions Certifying
Authority‖,3.electronic signature, 4 Electronic Signature Certificate,
electronic form‖, electronic records, information‖, secure electronic record,
secure digital signature‖ and subscriber shall have the meanings
respectively assigned to them in the Information Technology Act, 2000
(21 of 2000).] 4.May presume‖. Whenever it is provided by this Act that
the Court may presume a fact, it may either regard such fact as proved,
unless and until it is disproved, or may call for proof of it. Shall presume‖.
Whenever it is directed by this Act that the Court shall presume a fact, it
shall regard such fact as proved, unless and until it is disproved.
Conclusive proof. When one fact is declared by this Act to be conclusive
proof of another, the Court shall, on proof of the one fact, regard the other
as proved, and shall not allow evidence to be given for the purpose of
disproving it.

 Evidence means:

  Anything by which an alleged matter of fact is established or

disproved.

  Anything that makes a thing in question evident to the court

  Can be oral (statements made by witnesses) or documentary

(papers, electronic records etc.)
  Documentary Evidence also includes 'Electronic records' as
amended by the Information Technology Act, 2000 effective Oct
17, 2000.

  All the statements must be permitted by court or required to be

produced before it.

  An Affidavit is not an evidence.

CONCEPT OF EVIDENCE

The word “evidence” signifies in its original sense, the state of being
evident, i.e., plain, apparent or notorious. But it is applied to that which
tends to render evidence or generate proof. The fact sought to be proved is
called the principal fact; the fact which tends to establish it, the evidentiary
fact (Best). In English Law, the word “evidence” sometimes means the
words uttered and things exhibited by witnesses before a Court of Justice.
At other times, it means the facts proved to exist by those words or things
and regarded as the groundwork of inference as to other fittest not so
proved. Again, it is sometimes used as meaning to assert that a particular
fact is relevant to the matter under inquiry.[iii] In the Act, however, the
word has been assigned a more definite meaning and is used only in the
first of these senses. As thus used, it signifies only the instrument by
means of which relevant facts are brought before the Court (viz., witnesses
and documents) and by means of which the Court is convicted of these
facts.[iv] Therefore matters other than the statements of witnesses and
documents produced for the inspection of the Court, e.g., a confession or
statement of an accused person in the course of a trial.[v] Statements made
by parties when examined otherwise than as witnesses, demeanour of
witnesses, the result of local investigation or inspection, and material
objects other than documents such as weapons, tools, stolen property, etc.,
are not “evidence” according to the definition given in the Act. These are,
however, matters which the Court may legitimately take into
consideration. The definition of “evidence” must be read together with the
definition of “proved”; and the combined result of these two definitions in
that “evidence”, as defined by the Act, is not the only medium of proof and
that in addition to it, there are a number of other “matters” which the Court
has to take into consideration when forming its conclusions. A statement
recorded under section 164, Cr. P.C. is not evidence within the meaning of
this definition. So also a confession of an accused is not evidence in the
ordinary sense of the term. Entire evidence of hostile witness does not get
excluded or rendered unworthy of consideration.

In the matter of appreciation of the powers of the appellant court are as

wide as that of the trial court. It has full power to review the whole
evidence. It is entitled to go into the entire evidence and relevant circumsta

Facts in Issue

Fact

Fact means and includes (1) anything, state of things, or relation of things,
capable of being perceived by the senses; (2) any mental condition of
which any person is conscious. Illustrations (a) That there are certain
objects arranged in a certain order in a certain place, is a fact. (b) That a
man heard or saw something, is a fact. (c) That a man said certain words,
is a fact. (d) That a man holds a certain opinion, has a certain intention,
acts in good faith or fraudulently, or uses a particular word in a particular
sense, or is or was at a specified time conscious of a particular sensation, is
a fact. (e) That a man has a certain reputation, is a fact.

Facts in issue: The expression facts in issue means and includes any fact
from which, either by itself or in connection with other facts, the existence,
non-existence, nature or extent of any right, liability, or disability, asserted
or denied in any suit or proceeding, necessarily follows. Explanation.
Whenever, under the provisions of the law for the time being in force
relating to Civil Procedure,1 any Court records an issue of fact, the fact to
be asserted or denied in the answer to such issue issue is a fact in issue.
Illustrations A is accused of the murder of B. At his trial the following
facts may be in issue: That A caused B’s death; That A intended to cause
B’s death; That A had received grave and sudden provocation from B;
That A, at the time of doing the act which caused B’s death, was, by
reason of unsoundness of mind, incapable of knowing its nature.

Relavant fact

A fact is said to be relavant to another when one fact is connected with the
other fact in any ways reffered to in the provisions of this act in the chapter
of relavancy of facts. Relavant fact-The word ‘relavant’ means that any
two facts to which it is applied are in such a way related to each other
that,one,either taken by itself or in connection with the other facts,proves
or renders probablity of the past,present or future existence or non-
existence of the other. ‘Relavant’ means admissible in evidence. Of all the
rules in evidence the most important is that the evidence adduced should
be confined only to the matters which are in dispute,or which form the
subject of investigation.

Facts are relevant under Indian Evidence Act:

Sections 6 to 55 of Indian Evidence Act describe the facts that are deemed
relevant. These are as follows

Section 6 - Relevancy of facts forming part of same transaction - Facts

which, though not in issue, are so connected with a fact in issue as to form
part of the same transaction, are relevant, whether they occurred at the
same time and place or at different times and places. For example - (a) A is
accused of the murder of B by beating him. Whatever was said or done by
A or B or the by-standers at the beating, or so shortly before or after it as
to form part of the transaction, is a relevant fact.

Section 7 - Facts which are the occasion, cause or effect of facts in issue -
Facts which are the occasion, cause or effect, immediate or otherwise, of
relevant facts, or facts in issue, or which constitute the state of things
under which they happened, which afforded an opportunity for their
occurrence or transaction, are relevant.
For example - a) The question is, whether A robbed B. The facts that,
shortly before the robbery, B went to a fair with money in his possession,
and that he showed it or mentioned the fact that he had it, to third persons,
are relevant.

Section 8 - Motive, preparation and previous or subsequent conduct - Any

fact is relevant which shows or constitutes a motive or preparation for any
fact in issue or relevant fact

For example - (a) A is tried for the murder of B - The facts that A
murdered C, that B knew that A had murdered C, and that B had tried to
extort money from A by threatening to make his knowledge public, are
relevant -

Section 9 - Facts necessary to explain or introduce relevant facts - Facts

necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by a fact in issue or relevant fact,
or which establish the identity of any thing or person whose identity is
relevant, or fix the time or place at which any fact in issue or relevant fact
happened, or which show the relation of parties by whom any such fact
was transacted, are relevant in so far as they are necessary for that
purpose-

For example, (a) The question is, whether a given document is the will of
A - The state of A's property and of his family at the date of the alleged
will may be relevant facts -

Section 10 - Things said or done by conspirator in reference to common

design - Where there is reasonable round to believe that two or more
persons have conspired together to commit an offence or an actionable
wrong, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention
was first entertained by any one of them, is a relevant fact as against each
of the persons believed to be so conspiring, as well for the purpose of
proving the existence of the conspiracy as for the purpose of showing that
any such person was a party to it -

Section 11 - When facts not otherwise relevant become relevant - Facts not
otherwise relevant are relevant - (1) if they are inconsistent with any fact
in issue or relevant fact; (2) if by themselves or in connection with other
facts they make the existence or non-existence of any fact in issue or
relevant fact highly probable or improbable -

For example, (a) The question is whether A committed a crime at Calcutta

on a certain day - The fact that, on that day, A was at Lahore is relevant -

Section 12 - In suits for damages, facts tending to enable Court to

determine amount are relevant - In suits in which damages are claimed,
any fact which will enable the Court to determine the amount of damages
which ought to be awarded, is relevant -

Section 13 - Facts relevant when right or custom is in question - Where the

question is as to the existence of any right or custom, the following facts
are relevant:-

(a) any transaction by which the right or custom in question was

created, claimed, modified, recognized, asserted or denied, or
which was inconsistent with its existence:

(b) particular instances in which the right or custom was claimed,

recognized or exercised, or in which its exercise was disputed,
asserted or departed from -

For example - The question is whether A has a right to a fishery - A deed

conferring the fishery on A's ancestors, a mortgage of the fishery by A's
father, a subsequent grant of the fishery by A's father, irreconcilable with
the mortgage, particular instances in which A's father exercised the right,
or in which the exercise of the right was stopped by A's neighbors, are
relevant facts -

Section 14 - Facts showing existence of state of mind, or of body, of

bodily feeling - Facts showing the existence of any state of mind, such as
intention, knowledge, good faith, negligence, rashness, ill-will or good-
will towards any particular person, or showing the existence of any state of
body or bodily feeling, are relevant, when the existence of any such state
of mind or body or bodily feeling, is in issue or relevant -

For example, (a) A is accused of receiving stolen goods knowing them to

be stolen - It is proved that he was in possession of a particular stolen
article - The fact that, at the same time, he was in possession of many other
stolen articles is relevant, as tending to show that he knew each and all of
the articles of which he was in possession to be stolen -

Section 15 - Facts bearing on question whether act was accidental or

intentional - When there is a question whether an act was accidental or
intentional, or done with a particular knowledge or intention, the fact that
such act formed part of a series of similar occurrences, in each of which
the person doing the act was concerned, is relevant -

For example, (a) A is accused of burning down his house in order to obtain
money for which it is insured - The facts that A lived in several houses
successively each of which he insured, in each of which a fire occurred,
and after each of

which fires A received payment from a different insurance office, are

relevant, as tending to show that the fires were not accidental -

Section 16 - Existence of course of business when relevant - When there is

a question whether a particular act was done, the existence of any course
of business, according to which it naturally would have been done, is a
relevant fact -

For example, (a) The question is, whether a particular letter was
dispatched - The facts that it was the ordinary course of business for all
letters put in a certain place to be carried to the post, and that particular
letter was put in that place are relevant -

Sections 17 to 31 - Admission of facts by particular persons is relevant.

Sections 32 and 33 - Statements by persons who cannot be called witness
in specified circumstances are with definite conditions are relevant.

Sections 34 to 38 - Statements made in an extra ordinary circumstance,

any statement made on any law which is inserted in some books, is
relevant.

Sections 40-44 - Judgments of courts are relevant in certain situations.

Sections 45-51 - Opinion of third person is relevant in certain situations.

Sections 52-55 - Character of a person is relevant in certain situations.

Evidence

Evidence‖ means and includes (1) all statements which the Court permits
or requires to be made before it by witnesses, in relation to matters of fact
under inquiry; such statements are called oral evidence; (2) 4 [all
documents including electronic records produced for the inspection of the
Court;] such documents are called documentary evidence.

Proved

A fact is said to be proved when, after considering the matters before it,
the Court; either believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the particular case, to
act upon the supposition that it exists.

Disproved:

A fact is said to be disproved when, after considering the matters before it,
the Court either believes that it does not exist, or considers its non-
existence so probable that a prudent man ought, under the circumstances of
the particular case, to act upon the supposition that it does not exist.

Not proved:

A fact is said not to be proved when it is neither proved nor disproved. 1

[India‖:India‖ means the territory of India excluding the State of Jammu
and Kashmir.] 2 [the expressions Certifying Authority, 3 [electronic
signature], 4 [(Electronic Signature Certificate], electronic form, electronic
records, information‖, secure electronic record, secure digital signature and
subscriber shall have the meanings respectively assigned to them in the
Information Technology Act, 2000 (21 of 2000).] 4. May presume‖.
Whenever it is provided by this Act that the Court may presume a fact, it
may either regard such fact as proved, unless and until it is disproved, or
may call for proof of it. Shall presume. Whenever it is directed by this Act
that the Court shall presume a fact, it shall regard such fact as proved,
unless and until it is disproved. Conclusive proof. When one fact is
declared by this Act to be conclusive proof of another, the Court shall, on
proof of the one fact, regard the other as proved, and shall not allow
evidence to be given for the purpose of disproving it.

Admissable Evidence

Admissible evidence is any document, testimony, or tangible evidence

used in a court of law. Evidence is typically introduced to a judge or a jury
to prove a point or element in a case.

Criminal Law: In criminal law, evidence is used to prove a defendant's

guilt beyond a reasonable doubt.

Civil Law: in civil law, an element of a case is weighed by the standard of

preponderance of the evidence, which is a lower standard that "beyond a
reasonable doubt."

However, before evidence can even be used in a criminal case, it must be

considered “admissible”. Whether evidence is admissible or not depends
on several different factors that the court must analyze. Many different
items and statements are often excluded from evidence in a criminal trial
because it is considered “inadmissible”.

Factors for Determining If Evidence Is Admissible

The general rule is that all irrelevant evidence is inadmissible and all
relevant evidence is admissible.

There are two basic factors that are considered when determining whether
evidence is admissible or not:

Relevant – The evidence must prove or disprove an important fact in the

criminal case. If the evidence doesn't relate to a particular fact, it is
considered "irreelvant" and is therefore inadmissible.

Reliable – Reliability refers to the credibility of a source that is being used

as evidence. This usually applies to witness testimony.

There are four basic types of evidence:

1. Demonstrative
2. Documentary
3. Real
4. Testimonial

Factors That Determine Whether Evidence Is Inadmissible

Evidence inadmissibility is an extremely nuanced field of law. Although

evidence rules are driven by public policy, those same rules often have
exceptions and those exceptions can have exceptions. In general though,
evidence is more likely to be inadmissible if the evidence is:

Unfairly Prejudicial – Evidence that arouses the jury’s outrage without

adding any material information is often excluded. For example, the
picture of children around a victim’s body is often ruled as being unfairly
prejudicial.

Wastes Time – In trials, there is such a thing as too much of a good

thing. Juries do not have to hear from twenty separate character witnesses
to know that the defendant is typically an honest person.

Misleading – Evidence that could draw the jury’s attention away from
the main issues of the case are misleading and often excluded. For
example, the defendant’s homosexuality in a child molestation case is
misleading since the issue is whether the defendant had sex with a minor.
The gender of the minor is irrelevant.

Hearsay – Testimony which is made outside of the court to prove the truth
of the matter is often excluded. For example, if a witness claims another
witness said the defendant hit the victim with a knife and the prosecutor
wants to use the testimony to prove that the defendant stabbed the victim,
that testimony is considered hearsay. However, the hearsay rule has over
forty different exceptions such as the dying declaration exception.

Character – Evidence to prove that the defendant or the victim has a

certain personality trait and that the defendant acted according in
consistently with that personality trait is often excluded. The exception is
if the defendant introduces character evidence first.

Expert Testimony – Expert testimony can only be given by experts. "Lay"

witnesses cannot give expert testimony.

Privileges – Evidence is often excluded if it came from a privileged source

of information. The most important privileges are between attorneys and
clients, as well as the right against self-incrimination.

Relevancy of Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it
would be without the evidence; and

(b) the fact is of consequence in determining the action.

Problems of relevancy call for an answer to the question whether an item

of evidence, when tested by the processes of legal reasoning, possesses
sufficient probative value to justify receiving it in evidence. Thus,
assessment of the probative value of evidence that a person purchased a
revolver shortly prior to a fatal shooting with which he is charged is a
matter of analysis and reasoning.

The variety of relevancy problems is coextensive with the ingenuity of

counsel in using circumstantial evidence as a means of proof. An
enormous number of cases fall in no set pattern, and this rule is designed
as a guide for handling them. On the other hand, some situations recur
with sufficient frequency to create patterns susceptible of treatment by
specific rules. Rule 404 and those following it are of that variety; they also
serve as illustrations of the application of the present rule as limited by the
exclusionary principles of Rule 403.

Passing mention should be made of so-called “conditional” relevancy.

Morgan, Basic Problems of Evidence 45–46 (1962). In this situation,
probative value depends not only upon satisfying the basic requirement of
relevancy as described above but also upon the existence of some matter of
fact. For example, if evidence of a spoken statement is relied upon to
prove notice, probative value is lacking unless the person sought to be
charged heard the statement. The problem is one of fact, and the only rules
needed are for the purpose of determining the respective functions of judge
and jury. See Rules 104(b) and 901. The discussion which follows in the
present note is concerned with relevancy generally, not with any particular
problem of conditional relevancy.

Relevancy is not an inherent characteristic of any item of evidence but

exists only as a relation between an item of evidence and a matter properly
provable in the case. Does the item of evidence tend to prove the matter
sought to be proved? Whether the relationship exists depends upon
principles evolved by experience or science, applied logically to the
situation at hand. James, Relevancy, Probability and the Law, 29
Calif.L.Rev. 689, 696, n. 15 (1941), in Selected Writings on Evidence and
Trial 610, 615, n. 15 (Fryer ed. 1957). The rule summarizes this
relationship as a “tendency to make the existence” of the fact to be proved
“more probable or less probable.” Compare Uniform Rule 1(2) which
states the crux of relevancy as “a tendency in reason,” thus perhaps
emphasizing unduly the logical process and ignoring the need to draw
upon experience or science to validate the general principle upon which
relevancy in a particular situation depends.

The standard of probability under the rule is “more * * * probable than it

would be without the evidence.” Any more stringent requirement is
unworkable and unrealistic. As McCormick §152, p. 317, says, “A brick is
not a wall,” or, as Falknor, Extrinsic Policies Affecting Admissibility, 10
Rutgers L.Rev. 574, 576 (1956), quotes Professor McBaine, “* * * [I]t is
not to be supposed that every witness can make a home run.” Dealing with
probability in the language of the rule has the added virtue of avoiding
confusion between questions of admissibility and questions of the
sufficiency of the evidence.

The rule uses the phrase “fact that is of consequence to the determination
of the action” to describe the kind of fact to which proof may properly be
directed. The language is that of California Evidence Code §210; it has the
advantage of avoiding the loosely used and ambiguous word “material.”
Tentative Recommendation and a Study Relating to the Uniform Rules of
Evidence (Art. I. General Provisions), Cal. Law Revision Comm'n, Rep.,
Rec. & Studies, 10–11 (1964). The fact to be proved may be ultimate,
intermediate, or evidentiary; it matters not, so long as it is of consequence
in the determination of the action. Cf. Uniform Rule 1(2) which requires
that the evidence relate to a “material” fact.

The fact to which the evidence is directed need not be in dispute. While
situations will arise which call for the exclusion of evidence offered to
prove a point conceded by the opponent, the ruling should be made on the
basis of such considerations as waste of time and undue prejudice (see
Rule 403), rather than under any general requirement that evidence is
admissible only if directed to matters in dispute. Evidence which is
essentially background in nature can scarcely be said to involve disputed
matter, yet it is universally offered and admitted as an aid to
understanding. Charts, photographs, views of real estate, murder weapons,
and many other items of evidence fall in this category. A rule limiting
admissibility to evidence directed to a controversial point would invite the
exclusion of this helpful evidence, or at least the raising of endless
questions over its admission. Cf. California Evidence Code §210, defining
relevant evidence in terms of tendency to prove a disputed fact.

Admissions Confessions

An admission represents a statement that tends toward proving guilt. On

the other hand, a confession is a fully corroborated statement during which
the suspect accepts personal responsibility for committing a crime. This
distinction is important for legal and procedural reasons. For example, a
theft suspect who agrees to reimburse the victim for the $1000 stolen has
offered an admission, not a confession. While a willingness to pay back an
amount of money stolen is very typical of the guilty suspect, we have had
at least one occurrence of a verified innocent person who agreed to do this
also. The principle to keep in mind is that an admission does not accept
personal responsibility for committing the crime.

In a second example, a suspect who was questioned concerned the death of

his infant child acknowledged picking the child up in a manner that was
somewhat consistent with the probable cause of death. However, the father
maintained that when he put the child back down the child was alive and
not in distress. Based primarily on this admission, the father was charged
with homicide. During the trial, when the prosecutor was unable to present
any further evidence of the father’s guilt, a motion was granted to dismiss
the charge.

Many interrogations result in admissions, rather than a confession. A

homicide suspect who states, “I’m sorry about what I did” has offered an
admission; the child molester who states, “If I did touch her bare vagina, it
would have been for just a few seconds” has similarly offered merely an
admission. So too has the suspect who, after hours of interrogation,
acknowledges for the first time that he was present during a drive-by
shooting. Under these circumstances the investigator needs to pursue the
issue further during the interrogation in an attempt to see if the suspect will
accept personal responsibility for committing the crime.

There are suspects, of course, who refuse to go beyond the admission stage
regardless of the investigator’s efforts, the suspect simply will not accept
personal responsibility for committing the crime. Under that circumstance
the investigator must consider the possibility that the suspect may be
innocent of the crime and pursue other investigative techniques to resolve
the suspect’s status. In the case of the earlier mentioned suspect who
agreed to pay back stolen money, but did not admit stealing it, we decided
to interview the only other suspect on the case. The second suspect
displayed deceptive behavior symptoms and was interrogated. The
subsequent interrogation resulted in a full acknowledgment of the theft
including corroborative details of how the money was spent.

Many suspects who make admissions during an interview or interrogation

(admitting that proper procedures were not followed, lying about an alibi,
or acknowledging the possibility that they may have committed the crime)
are, in fact, guilty of the crime under investigation. However, to use such
an admission as grounds for dismissal or as the linchpin of a prosecution
may result in a wrongful discharge suit or an unsuccessful prosecution.

Dying Declaration

Abstract:

The purpose of this research is to identify the principle of “Leterm

Mortem” which means “words said before death” & in a legal term it is
called ‘Dying Declaration’. The word “Dying Declaration” itself tells the
meaning But this project highlights those questions, which have a great
value in legal field relating to dying declaration. The study tells about
those statements which converted into dying declaration, different forms of
dying declaration, which are admissible by law, it’s importance in the law
& clears that has it some value or not? And if it has, then what are the
exceptions of it?

A statement by a person who is conscious and knows that death is

imminent concerning what he or she believes to be the cause or
circumstances of death that can be introduced into evidence during a trial
in certain cases.

A dying declaration is considered credible and trustworthy evidence based

upon the general belief that most people who know that they are about to
die do not lie. As a result, it is an exception to the Hearsay rule, which
prohibits the use of a statement made by someone other thanthe person
who repeats it while testifying during a trial, because of its inherent
untrustworthiness. If the person who made the dying declaration had the
slightest hope of recovery, no matter how unreasonable, the statement is
not admissible into evidence. A person who makes a dying declaration
must, however, be competent at the time he or she makes a statement,
otherwise, it is inadmissible. A dying declaration is usually introduced by
the prosecution, but can be used on behalf of the accused.

Word “Dying Declaration” means a statement written or verbal of relevant

facts made by a person, who is dead. It is the statement of a person who
had died explaining the circumstances of his death. This is based on the
maxim ‘nemo mariturus presumuntur mentri’ i.e. a man will not meet his
maker with lie on his mouth. Our Indian law recognizes this fact that ‘a
dying man seldom lies.’ Or ‘truth sits upon the lips of a dying man.’ It is
an exception to the principle of excluding hearsay evidence rule. Here the
person (victim) is the only eye-witness to the crime, and exclusion of his
statement would tend to defeat the end of justice. Section 32 of Indian
Evidence act deals with the cases related to that person who is dead or who
cannot be found.

I.1 Section 32: Cases in which statements of relevant fact by person who is
dead or cannot be found.—statement, written or verbal, or relevant facts
made by a person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance cannot be
procured without an amount of delay or expanse which, under the
circumstances of the case appears to the Court unreasonable, are
themselves relevant facts in the following cases:

(1) When it relates to cause of death.

(2) Or is made in course of business.

(3) Or against interest of maker.

(4) Or gives opinion as to public right or custom or matters.

(5) Or relates to existence of relationship.

(6) Or is made in will or deed relating to family.

(7) Or in document relating to transaction mentioned in section 13, clause

(a).

(8) Or is made by several persons and expresses feelings relevant to

matter in question.

But here, we are studying about ‘dying declaration’ which deals with the
cases relate to cause of death. It is mentioned in sub-section (1) of section
32 of Indian Evidence act.

Section 32 (1) When it relates to cause of death. When the statement is

made by a person as to the cause of his death, or as to any of the
circumstances of the transaction which resulted in his death, in cases in
which the cause of that person’s death comes into question.

Such statements are relevant whether the person who made them was or
was not, at the time when they were made, under exception of death, and
whatever may be the nature of the proceeding in which the cause of his
death comes into question.

II. Identification through Dying Declaration

There is no particular form of dying declaration which is identified or
admissible in the eye of law. But that must be functioning as a piece of
evidence with the proper identification.

In a case, Apex court has also held that, “The crux of the whole matter was
as to who had stabbed the deceased & why. These crucial facts are to be
found in the dying declaration.”

II.1 Question answer form

Where the dying declaration was not recorded in question-answer

form, it was held that it could not be discarded for that reason alone. A
statement recorded in the narrative may be more natural because it
may give the version of the incident as perceived by the victim.

II.2. Gestures & signs form

In the case of Queen-Empress v. Abdullah Accused had cut the throat

of the deceased girl & because of that, she was not able to speak so,
she indicated the name of the accused by the signs of her hand, it was
held by the full bench of the Allahabad High Court “If the injured
person is unable to speak, he can make dying declaration by signs &
gestures in response to the question.” In another case The Apex Court
observed that “the value of the sign language would depend upon as to
who recorded the signs, what gestures & nods were made, what were
the questions asked, whether simple or complicated & how effective
& understandable the nods & gestures were.”

II.3. Language of statement

Where the deceased made the statement in Kannada & Urdu

languages, it was held that the statement could not be discarded on
that ground alone, or on the ground that it was recorded only in
Kannada. Where the statement was in Telugu & the doctor recorded it
in English but the precaution of explaining the statement to the injured
 person by another doctor was taken, the statement was held to be a
valid dying declaration.

II.4. Oral Declaration

The Apex Court emphasized the need for corroboration of such

declaration particularly in a case of this kind where the oral statement
was made by the injured person to his mother & she being an
interested witness. Such declaration has to be considered with care &
caution. A statement made orally by the person who was struck down
with a lathi blow on head and which was narrated by the witness who
lodged the F.I.R. as a part of the F.I.R. was accepted as a reliable
statement for the purpose of Section 32.

II.5. Thumb Impression

A dying declaration authenticated by thumb impression was

considered to be doubtful in view of the fact that the victim had
sustained 100 percent burns.

II.6. Incomplete Statement

The Apex Court had held that if a deceased fails to complete the main
sentence (as for instance, the genesis or motive for the crime) a dying
declaration would be unreliable. However, if the deceased has narrated
the full story, but fails to answer the last formal question as to what
more he wanted to say, the declaration can be relied upon.

II.7. where declarer survives

In a case decided by the Apex Court, the deceased who had made the
dying declaration was seriously injured, but was conscious throughout
when making the statement. The Court held that mirror incoherence in
his statement with regard to facts & circumstances would not be
sufficient ground for not relying on his statement, which was
otherwise found to be genuine.
II.8. Absence of medical statement of fitness

Where the dying declaration of a dowry victim was challenged on the

ground that doctor’s certificate of mental fitness for statement was not
there, the Supreme Court attached no importance to that omission,
because the case was not wholly dependent upon the declaration. The
facts were on record showing that the injured woman had gone to the
hospital all alone changing vehicles on the way. This was sufficient
evidence in itself to show her fitness.

II.9. Where interested witnesses were attending to the deceased

The Gauhati High Court has held that when the interested witnesses
were attending on the deceased when he was making a dying
declaration, & because of the injuries, the deceased was neither
physically or mentally fit, no reliance could be placed on the dying
declaration, in the absence of evidence to show that the deceased was
physically & mentally capable of making the dying declaration, & was
not the victim of any tutoring.

II.10. Where statement is not relevant to the cause of death

When the person making the statement is not proved to have died as a
result of the injuries received in the incident, his statement cannot be
said to be the statement as to the cause of his death or as to any of the
circumstances of transaction which resulted in his death.

II.11. Medical Report

The doctor in the hospital clearly recorded in the Accident Register of

the Hospital that the patient was conscious, her orientation was good
& that she answered well the question put to her. Her statement could
not be discarded on the basis of her injury or post-mortem report in
which it was said that having regard to the nature of injuries sustained
by the deceased, she could not have been in a position to make a
statement. Where the medical report of fitness was available to the
 magistrate who was to record the statement, it was held that it was not
necessary for the magistrate to make an independent inquiry as to
fitness.

II.12. Doctor’s statement

In the case of a bride burning, the doctor to whom the deceased was
taken for treatment deposed that soon after her admission, she said
that her husband had poured kerosene on her clothes and set her
ablaze. The doctor made a note of it in the case papers. The testimony
of the doctor became supported by the contemporaneous record. The
Court said that the doctor had no reason to falsely depose against the
accused or prepare false case papers.

II.13. FIR as dying declaration

In K.. Ramachand Reddy v. Public Prosecutor, it was held that where

an injured person lodged an FIR & then died, it was held to be
relevant as a dying declaration.

II.14. Dowry Death, wife burning etc

The death of a married woman in the matrimonial home three or four

months after her statements expressing the danger to her life has been
held by the Apex Court to be a statement explaining the circumstances
of her death. In a case of wife-burning, after recording her statement
that her husband had set afire, she mercifully pleaded that her husband
should not be beaten. It was argued on this basis that she wanted to
exonerate her husband. The court replied:

This is a sentiment too touching for tears & stems from the values of
the culture of the Indian womanhood; a wife when she has been set
afire by her husband, true to her tradition, does not want her husband
should to be assaulted brutally. It is this sentiment which promoted
this dying tragic woman to say that even if she was dying, her husband
should not be beaten. We are unable to appreciate how this statement
 can be converted into one exculpative of the accused. In a further
application of this principle to a case arising out of “that atrocious
species of murder “ , called wife burning, the Apex Court said: “The
three dying declarations corroborated by other circumstances are
sufficient in our view to bring home the offence. The counsel has
sought to discredit these declarations forgetting that they are groaning
utterances of a dying woman in the grip of dreadful agony which
cannot be judged by the standard of fullness of particulars which
witnesses may give in other situations. To discredit such dying
declarations for short- falls here or there or even in many places is
unrealistic, unnatural & unconscionable, if basically there is
credibility. The terrible in this case has taken place in the house & in
the presence of the husband who has been convicted. We hardly see
any reason for interfering in this conviction. In a case a bride was 80%
burnt when she had given statement to the doctors. But according to
doctors she was in a fit condition to give statement. The court said that
from the fact of 80% burns no inference was to be drawn that she
could not have been capable of making the statement. Where the
declaration of the deceased wife was deposed only by her mother, the
Court held this to be not sufficient to convict.

II.15. Statements made to or implicating relatives

The Apex court laid down in the subsequent case of Barati v. State of
U.P., that a dying declaration made to the relatives of the deceased,
when properly proved can also be trusted. In this case the deceased
who was killed by sprinkling acid on him first made the statement to
his brother & son, repeated it at the police station & again at the
hospital charging the accused, the court held that the statement was
worthy of credit. Where the dying statement was recorded by the wife
of the deceased, the Supreme Court did not reject it only on that
ground, though it added that such evidence should be scrutinized with
care.
III. Evidentiary Value of Dying Declaration

In K.R. Reddy v. Public Prosecutor, evidentiary value of dying

declaration was observed as under :-

“The dying declaration is undoubtly admissible under section 32 &

not being statement on oath so that its truth could be tested by cross-
examination, the court has to apply the scrutiny & the closest
circumspection of the statement before acting upon it. While great
solemnity and sanctity is attached to the words of a dying man
because a person on the verge of death is not likely to tell lies or to
connect a case as to implicate an innocent person, yet the court has to
be on guard against the statement of the deceased being a result of
either tutoring, prompting or a product of his imagination. The court
must be satisfied that the deceased was in a fit state of mind to make
the statement after the deceased had a clear opportunity to observe &
identify his assailants & that he was making the statement without any
influence or rancor. Once the court is satisfied that the dying
declaration is true & voluntary, it can be sufficient to found the
conviction even without further corroboration.”

In Khushal Rao v. State of Bombay, Apex Court laid down the

following principles related to dying to dying declaration :

(i) There is no absolute rule of law that a dying declaration cannot be

the sole basis of conviction unless corroborated. A true &
voluntary declaration needs no corroboration.

(ii) A dying declaration is not a weaker kind of evidence than any

other piece of evidence;

(iii) Each case must be determined on its own facts keeping in view
the circumstances in which the dying declaration was made.

(iv) A dying declaration stands on the same footing as other piece of

evidence & has to be judged in the light of surrounding
 circumstances & with reference to the principle governing the
weight of evidence.

(v) A dying declaration which has been recorded by a competent

Magistrate in the proper manner, that is to say, in the form of
questions and answers, &, as far as practicable in the words of the
maker of the declaration stands on a much higher footing than a
dying declaration which depends upon oral testimony which may
suffer from all the infirmities of human memory & human
character.

(vi) In order to test the reliability of a dying declaration the court has
to keep in view the circumstances like the opportunity of the
dying man for observation, for example, whether there was
sufficient light if the crime was committed in the night; whether
the capacity of man to remember the facts stated had not been
impaired at the time he was making the statement by
circumstances beyond his control; that the statement has been
consistent throughout if he had several opportunities of making a
dying declaration apart from the official record of it; & that the
statement had been made at the earliest opportunity & was not the
result of tutoring by interested party.”

IV. Exceptions of Dying Declaration

The exceptions of ‘Dying declaration’ stipulate that where the

statements made by dying persons are not admissible:

IV.1. If the cause of death of the deceased is not in question: If the

deceased made statement before his death anything except the cause
of his death, that declaration is not admissible in evidence.

IV.2. If the declarer is not a competent witness: declarer must be

competent witness. A dying declaration of a child is inadmissible. In
Amar singh v. State of Madhya Pradesh,1996 Cr LJ (MP) 1582, it
 was held by M.P. High Court that without proof of mental or
physical fitness, the dying declaration was not reliable.

IV.3 Inconsistent declaration: Inconsistent dying declaration is no

evidentiary value.

IV.4. Doubtful features: In Ramilaben v. State of Gujarat it was held by

the court that second degree burn injuries, the injured dying 7-8
hours after the incident, four dying declarations recorded but none
carried medical certificate. There were other doubtful features,
evidence not taken into account.

IV.5. Uninfluenced declaration: it must be noted that dying declaration

should not be under influence of any one.

IV.6. Untrue declaration: it is perfectly permissible to reject a part of dying

declaration if it is found to be untrue & if it can be separated.

IV.7. Incomplete declaration: dying declaration must be complete.

IV.8. if the statement relates to the death of another person: If the

statement made by the deceased does not relate to his death, but to
the death of another person, it is not relevant.

IV.9. Contradictory statements: if a declarant made more than one dying

declarations & all are contradictory, then those all declarations lose
their value.

IV.10. Unsound person: where the married dying of burns was a person of
unsound mind & the medical certificate vouchsafed her physical
fitness for a statement & not the state of mind at the crucial
moment, the court said that the statement could not be relied upon.

IV.11. I If dying declaration is not according to prosecution: in the case of

State of U.P. v. Madan Mohan the Apex Court held that:

1. It is for the court to see that dying declaration inspires full

confidence as the maker of the dying declaration is not
available for cross-examination.
 2. Court should satisfy that there was no possibility of tutoring or
prompting.

3. Certificate of doctor should mention that victim was in a fit

state of mind. Magistrate recording his own satisfaction about
the fit mental condition of the declarant was not acceptable
especially if the doctor was available.

4. Dying declaration should be recorded by the executive

magistrate & police officer to record the dying declaration only
if condition of the deceased was so precarious that no other
alternative was left.

5. Dying declaration may be in the form of questions & answers

& answers being written in the words of the person making the
dying declaration. But court cannot be too technical.

V. Conclusion

“Dying Declaration” is a legal concept refers to that statement which is

made by a dying person, explaining the circumstances of his death. LORD
LUSH, L.J., quoted that “A dying declaration is admitted in evidence
because it is presumed that no person who is immediately going into the
presence of his Maker, will do so with a lie on his lips. But the person
making the declaration must entertain settled hopeless expectation of
immediate death. If he thinks he will die tomorrow it will not do.”

LORD EYRE, C.B., also held that “The principle on which this species of
evidence is admitted is, that they are declarations made in extremity, when
the part is at the point of oath, & when every hope of this world is gone;
when every motive of falsehood is silenced, & the mind is induced by the
most powerful consideration to speak the truth; a situation so solemn &
awful is considered by law as creating an obligation equal to that which is
imposed by a positive oath administered in the court of justice.”

Dying declaration is admissible on the sole ground that it was made in

extremis. And in India, its admissibility is explained in Sec-32(11) of
Indian Evidence Act. It is cleared by the above mentioned statements
given by different courts that dying declaration can be in any form but it
must be recorded carefully & duly proved, which the courts make
admissible as the “DYING DECLARATION”.

Expert Opinion

Sec. 45 to Sec.51 under Chapter-II of the Indian Evidence Act provide

relevancy of opinion of third persons, which is commonly called in our
day to day practice as expert’s opinion. These provisions are exceptional in
nature to the general rule that evidence is to be given of the facts only
which are within the knowledge of a witness. The exception is based on
the principle that the court can’t form opinion on the matters, which are
technically complicated and professionally sophisticated, without
assistance of the persons who have acquired special knowledge and skill
on those matters. Conditions for admitting an expert opinion are
following:-

a) That the dispute can’t be resolved without expert opinion and

b) That the witness expressing the opinion is really an expert.

Definition

The definition of an expert may be referred from the provision of Sec.45 of

Indian Evidence Act that an ‘Expert’ means a person who has special
knowledge, skill or experience in any of the following

1) foreign law,

2) science

3) art

4) handwriting or

5) finger impression

and such knowledge has been gathered by him

 a) by practice,

b) observation or

c) proper studies.

For example, medical officer, chemical analyst, explosive expert, ballistic

expert, fingerprint expert etc.

According to Sec.45, the definition of an expert is confined only to the five

subjects or fields as mentioned above. But practically there are some more
subjects or fields on which court may seek opinion an expert.

An expert witness is one who has devoted time and study to a special
branch of learning and thus he is specially skilled on those points on which
he is asked to state his opinion. His evidence on such points is admissible
to enable the court to come to a satisfactory conclusion.

Duty of the expert:-

a) An expert is not a witness of fact.

b) His evidence is of advisory character.

c) An expert deposes and does not decide.

d) An expert witness is to furnish the judge necessary scientific criteria

for testing the accuracy of the conclusion so as to enable the judge to
form his independent judgment by application of the criteria to the
facts proved by the evidence.

Value of expert opinion:-

The Expert evidence has two aspects

a) Data evidence [it can’t be rejected if it is inconsistent to oral

evidence]

b) Opinion evidence [it is only an inference drawn from the data and
it would not get precedence over the direct eye-witness testimony
 unless the inconsistency between the two is so great as to falsify
the oral evidence] --[Arshad v. State of A.P. 1996 CrLJ 2893
(para34) (AP)]

Expert evidence is opinion evidence and it can’t take the place of

substantive evidence. It is a rule of procedure that expert evidence must be
corroborated either by clear direct evidence or by circumstantial evidence.

It is not safe to rely upon this type of evidence without seeking

independent and reliable corroboration -- [S.Gopal Reddy v. State of A.P.
AIR 1996 SC2184 (Para27)]

Opinions of experts.—When the Court has to form an opinion upon a point

of foreign law or of science or art, or as to identity of handwriting 35 [or
finger impressions], the opinions upon that point of persons specially
skilled in such foreign law, science or art, 36 [or in questions as to identity
of handwriting] 35 [or finger impressions] are relevant facts. Such persons
are called experts. Illustrations

(a) The question is, whether the death of A was caused by poison.
The opinions of experts as to the symptoms produced by the
poison by which A is supposed to have died are relevant.

(b) The question is, whether A, at the time of doing a certain act, was,
by reason of unsoundness of mind, incapable of knowing the
nature of the Act, or that he was doing what was either wrong or
contrary to law. The opinions of experts upon the question
whether the symptoms exhibited by A commonly show
unsoundness of mind, and whether such unsoundness of mind
usually renders persons incapable of knowing the nature of the
acts which they do, or of knowing that what they do is either
wrong or contrary to law, are relevant.

(c) The question is, whether a certain document was written by A.

Another document is produced which is proved or admitted to
 have been written by A. The opinions of experts on the question
whether the two documents were written by the same person or by
different persons, are relevant. Comments Conflict of opinion of
Experts When there is a conflict of opinion between the experts,
then the Court is competent to form its own opinion with regard
to signatures on a document; Kishan Chand v. Sita Ram, AIR
2005 P&H 156. Expert opinion admissibility Requirement of
expert evidence about test firing to find out whether double barrel
gun is in working condition or not, not necessary; Jarnail Singh v.
State of Punjab, AIR 1999 SC 321. The evidence of a doctor
conducting post mortem without producing any authority in
support of his opinion is insufficient to grant conviction to an
accused; Mohd Zahid v. State of Tamil Nadu, 1999 Cr LJ 3699
(SC). Opinion to be received with great caution The opinion of a
handwriting expert given in evidence is no less fallible than any
other expert opinion adduced in evidence with the result that such
evidence has to be received with great caution; Ram Narain v.
State of Uttar Pradesh, AIR 1973 SC 2200.

Conspiracy evidence

Conspiracy Evidence is found in the Annexure of THE INDIAN

EVIDENCE (AMENDMENT) BILL, 2003, as follows:

For section 10 of the principal Act, the following section shall be

substituted, namely:- Things said or done by conspirator in reference to
common design “10. Where- (a) the existence of a conspiracy to commit
an offence or an actionable wrong, or the fact that any person was a party
to such a conspiracy, is a fact in issue or a relevant fact; and (b) the
question is whether two or more persons have entered into such
conspiracy, anything said, done or written by any one of such persons in
reference to their common intention, after the time when such intention
was first entertained by any one of them, is a relevant fact as against each
of the persons believed to be so conspiring, as well for the purpose of
proving the existence of the conspiracy as for the purpose of showing that
any such person was a party to it”.

Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to their
common intention, after the time when such intention was first entertained
by any one of them, is a relevant fact as against each of the persons
believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such
person was a party to it.

Illustration

Reasonable ground exists for believing that A has joined in a conspiracy

to wage war against the [ Government of India]

The facts that B procured arms in Europe for the purpose of the
conspiracy, C collected in Calcutta for a like object D persuaded persons
to join the conspiracy in Bombay, E published writings advocating the
object in view at Agra, and F transmitted from Delhi to G at Kabul the
money which C had collected at Calcutta , and the contents of a letter
written by H giving an account of the conspiracy, are each relevant, both
to prove the existence of the conspiracy, and to prove A’s complicity in it,
although he may have been ignorant of all of them, and although the
persons by whom they were done were strangers to him, and although they
may have taken place before he joined the conspiracy or after he left it.

Approver evidence

The word “accomplice” has nowhere been defined in the Evidence Act. An
accomplice means “a guilty associate” or a partner in crime.” An
accomplice is a person who is connected with another or others in the
commission of crime. He is a person who participates in the commission
of the crime. Where the witness sustains such relations to the criminal act
that he would be jointly indicted with the accused, he is an accomplice.
For example, when number of persons have committed an offence and one
of them is produced as a witness before the court, he is called as
accomplice.

Conditions to be followed by approver:

1. To be an approver he is to be an associate with other partners of the

crime and must have elements of mens rea. If he does not have any
element of mens rea for which the offence was committed he is not an
accomplice.

2. Acceptance of the evidence of accomplice will be accepted provided

he proves himself to be trustworthy or by circumstantial evidence.

3. Before accepting testimony of the accomplice the identity of other

associates has to be confirmed by the accomplice witness.

Categories of Accomplice:

1. Principal offender of First Degree and Second Degree: The

principal offender of first degree is a person who actually commits the
crime. The principal offender of the second degree is a person who
either abets or aids the commission of the crime.

2. Accessories before the fact: They are the person who abet, incite,
procure, or counsel for the commission of a crime and they do not
themselves participate in the commission of the crime.

3. Accessories after the fact: They are the persons who receive or
comfort or protect persons who have committed the crime knowing
that they have committed the crime. If they help the accused in
escaping from punishments or help him from not being arrested, such
person are known as harbourers. These persons can be accomplices
because all of them are the participants in the commission of the crime
in some way or the other. Therefore anyone of them can be an
accomplice.
Competency of Accomplice as Witness:

An accomplice is a competent witness provided he is not a co accused

under trial in the same case. But such competency which has been
conferred on him by a process of law does not divest him of the character
of an accused. An accomplice by accepting a pardon under Section 306
CrPC becomes a competent witness and may as any other witnesses be
examined on oath; the prosecution must be withdrawn and the accused
formally discharged under Section 321 CrPC before he can become a
competent witness. Even if there is an omission to record discharge an
accused becomes a competent witness on withdrawal of prosecution.
Under Article 20(3) of the Constitution of India, 1950 no accused shall be
compelled to be a witness against himself. But as an accomplice accepts a
pardon of his free will on condition of a true disclosure, in his own interest
and is not compelled to give self-incriminating evidence the law in
Sections 306 and 308, Code of Criminal Procedure is not affected. So a
pardoned accused is bound to make a full disclosure and on his failure to
do so he may be tried of the offence originally charged and his statement
may be used against him under Section 308.

Presumptions of law and Presumption of Fact

A presumption is an acceptance of a fact as true or existent based upon its

strong probability evident from the circumstances. For example, if a man
has not been heard from for 7 years by his closest relatives, the court may
believe in that the man is dead. This is a presumption. Thus, when the
court presumes the existence of a fact because of its strong probability but
without a direct or conclusive proof, it is called as presumption. When a
court presumes a fact, the party in whose favor the fact is, is relieved of the
initial burden of proof. For example, as per Negotiable Instruments Acts,
every holder of an instrument is presumed to be a holder for consideration.
So if a person A holds a cheque signed by another person B, it is presumed
that A has given consideration for the cheque and so A does not have to
provide any proof of that consideration. Of course, this presumption only
applies at the beginning. The other party is free to provide proof that
disproves the presumption. For example, the opposite party can show
letters by the person or recent photograph of the person showing that he is
still alive.

According to English Law, a presumption can be of two kinds -

presumption of fact and presumption of law.

Presumption of Fact

Presumption of fact are those presumption about things or events that

happen in day to day life, which we accept as true due to inference drawn
logically and naturally by our mind. Such as, presumption that a man with
blood stained clothes and a knife in his hands is the murderer. Such
presumptions are rebuttable from further evidence.

Presumption of Law

Presumption of law is arbitrary consequences that are annexed by law to

particular facts. They are legal fiction. They may not be same as the
inferences that we may ordinarily draw but the law prescribes that such
inference may be drawn. For example, it is a presumption of law that a
child below seven years of age is not capable of committing a crime. Or
that a person who has not been heard from for seven years is dead. Such
presumptions may or may not be rebuttable depending on the law. For
example, the presumption that a child below seven years of age is not
capable of committing a crime cannot be rebutted. Law presumes the age
of the child as a conclusive proof of his innocence. But the presumption
that a person is dead when he is not heard from for 7 years is rebuttable by
showing evidence.

May Presume and Shall Presume

Provisions of Section 4, in a general sense, correspond to the above

classification. The first part of this section defines "May Presume" as
follows
"May presume" - Whenever it is provided by this Act that the Court may
presume a fact, it may either regard such fact as proved, unless and until it
is disproved, or may call for proof of it. It gives the court a discretionary
power to presume the existence of a fact. Which means that the court may
regard the fact as proved unless and until it is disproved. For example, in
the case of Dr T T Thomas vs Elisa AIR 1987, where a doctor failed to
perform an emergency operation due to lack of consent, the court
presumed that the consent was there since the patient was brought to the
hospital. It was up to the doctor to prove that the consent was not there.
The court may also ask for further proof before making the presumption.

All the presumptions given in Section 114 are of this kind, which says that
the court may presume the existence of any fact which it thinks likely to
have happened regard being had to the common course of natural events,
human conduct, and public and private business, in their relation to the
facts of the particular case. For example, the court may presume that a
man who is in possession of stolen goods soon after theft, is either the thief
of has received the goods knowing them to be stolen, unless he can
account for his possession.

The second part of the section for defines "Shall Presume" as follows

"Shall presume" - Whenever it is directed by this Act that the Court shall
presume a fact, it shall regard such fact as proved, unless and until it is
disproved. It basically forces the court to presume a fact that is specified
by the law unless and until it is disproved. The court cannot ask for any
evidence to prove the existence of that fact but it may allow evidence to
disprove it. For example, Section 90 provides that where any document,
purporting or proved to be thirty years old, is produced from any custody
which the Court in the particular case considers proper, the Court may
presume that the signature and every other part of such document, which
purports to be in the handwriting of any particular person, is in that
person's handwriting, and, in the case of a document executed or attested,
that it was duly executed and attested by the persons by whom it purports
to be executed and attested. Presumption about abetment of suicide of a
married woman (S. 113A) and Presumption about dowry death of a
woman (S. 113B) are of this kind.

Third part of the section defines "Conclusive Proof" as follows

"Conclusive proof" - When one fact is declared by this Act to be

conclusive proof of another, the Court shall, on proof of the one fact,
regard the other as proved, and shall not allow evidence to be given for the
purpose of disproving it. For example, birth during marriage (S. 112) is a
conclusive proof of legitimacy.

Presumption and Burden of Proof

Justice Venkataramiah, of SC observed the following, in the case of Sodhi

Transport vs State of UP, 1986 - A presumption is not evidence in itself
but only makes a prima facie case for party in whose favor it exists. It
indicates the person on whom the burden of proof lies. When the
presumption is conclusive, it obviates the production of any evidence, but
when it is rebuttable, it only points out the party on whom lies the duty of
going forward with evidence on the fact presumed and when that party has
produced evidence fairly and reasonably tending to show that the real fact
is not as presumed the purpose of presumption is over.

Presumption about abatement of suicide by a married woman

Section 113 A - When the question is whether the commission of suicide

by a woman had been abetted by her husband or any relative of her
husband and it is shown that she had committed suicide within a period of
seven years from the date of her marriage and that her husband or such
relative of her husband had subjected her to cruelty, the court may
presume, having regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative of her
husband.
Explanation - For the purposes of this section, "cruelty" shall have the
same meaning as in section 498A of the Indian Penal Code (45 of 1860).

Section 113 B - Presumption as to dowry death - Presumption as to dowry

death.-When the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her death such woman
had been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the court shall presume that such
person had caused the dowry death. Explanation - For the purposes of this
section, "dowry death" shall have the same meaning as in section 304B of
the Indian Penal Code.

Section 114 of the Act lays down that the Court may presume the
existence of any fact which it thinks likely to have happened, regard being
had to the common course of (a) natural events, (b) human conduct, and
(c) public and private business, in their relation to the facts of the
particular case.

Presumptions of fact are nothing more than logical inferences of the

existence of one fact drawn from some other known or proved facts. Such
presumptions are always rebuttable.

The difference between presumptions of law and presumptions of fact

Presumptions of Law:

1. Presumptions of law derive their force from law.

2. A presumption of law applies to a class of cases.

3. Presumptions of law are to be drawn by the Court.

Presumptions of Fact:

1. Presumptions of fact derive their force from logic.

2. A presumption of fact applies to individual cases.

3. In England, presumptions of fact are to be drawn by the jury.

This section authorizes the Court to make certain presumptions of facts.
They are all presumptions which may naturally arise, but the section, by
the use of the word ‘may’ instead of ‘shall’, both in body of the section,
and in the Illustrations, shows that the Court is not compelled to raise
them, but is to consider whether, in the circumstances of the case, they
should be raised.

Illustrations to Section 114:

The Court may presume

(a) That a man who is in possession of stolen goods soon after the theft is
either the thief or has received the goods knowing them to be stolen,
unless he can account for his possession.

This Illustration is taken from Taylor. The words “soon after the theft”
indicate that in order to raise the presumption, the possession must be
recent. Moreover, the possession must be conscious and exclusive.

The question as to what is recent possession will depend upon the

facts and circumstances of every case, and upon whether the stolen
article passes easily from hand to hand in the ordinary course of
business. Thus, in one case, when a stolen woolen cloth with its ends
in an unfinished state was found with a person two months after the
theft, it was held that the burden was on such person to show how he
came into possession of such property.

(b) That an accomplice is unworthy of credit, unless he is corroborated in

material particular.

[Illustration: (b) must be read with S. 133 below, where the law as to
accomplice evidence is discussed.]

(c) That a bill of exchange accepted or endorsed was accepted or

endorsed for good consideration.
(d) That a thing or state of things which has been shown to be in existence
within a period shorter than that within which such things or states of
things usually cease to exist, is still in existence.

(e) That judicial and official acts have been regularly performed. This
Illustration is founded on the maxim omnia praesumuntur rite essa
acta (all things are presumed to be rightly done).

There is a general disposition in Courts of Justice to uphold official

acts, rather than to render them inoperative, and with this view, where
there is general evidence of acts having been legally and regularly
done, to dispense with proof of circumstances, strictly speaking
essential to the validity of those acts.

It must, however, be noted that the presumption that the act was
regularly done arises only on proof that the act was in fact done, as the
presumption is limited to the regularity of the act done and does not
extend to the doing of the act itself.

For example, if a notification is issued under the powers given by law,

there is a presumption that it was regularly published and promulgated
in the manner in which it was required to be done, but there is no
presumption that it was issued according to that terms of the section
which empowered it. Correctness of procedure, but not the factum of
act, is presumed under the Illustration.

(f) That the common course of business has been followed in particular
cases.

(g) That evidence which could be and is not produced, would, if

produced, be unfavourable to the person who withholds it.

(h) That if a man refuses to answer a question which he is not compelled

to answer by law, the answer if given, would be unfavourable to him.

(i) That when a document creating an obligation is in the hand of the

obligor, the obligation has been dischanged.
Burden of proof

The normal law relating to the Burden of Proof and its onus is given under
the provisions of the Indian Evidence Act, 1872.

Section 101 - Burden of proof

Whoever desires any Court to give judgment as to any legal right or

liability dependent on the existence of facts which he asserts, must prove
that those facts exist.

When a person is bound to prove the existence of any fact, it is said that
the burden of proof lies on that person.

Illustrations

(a) A desires a Court to give judgment that B shall be punished for a

crime which A says B has committed.

A must prove that B has committed the crime.

(b) A desires a Court to give judgment that he is entitled to certain land in

the possession of B, by reason of facts which he asserts, and which B
denies, to be true.

A must prove the existence of those facts.

Section 102 - On whom burden of proof lies

The burden of proof in a suit or proceeding lies on that person who would
fail if no evidence at all were given on either side.

Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts,

was left to A by the will of C, B's father.

If no evidence were given on either side, B would be entitled to retain

his possession.

Therefore the burden of proof is on A.

(b) A sues B for money due on a bond.

 The execution of the bond is admitted, but B says that it was obtained
by fraud, which A denies.

If no evidence were given on either side, A would succeed, as the

bond is not disputed and the fraud is not proved.

Therefore the burden of proof is on B.

Section 103 - Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who
wishes the Court to believe in its existence, unless it is provided by any
law that the proof of that fact shall lie on any particular person.

Illustration

1 [(a) A prosecutes B for theft, and wishes the Court to believe that B
admitted the theft to C. A must prove the admission.

B wishes the Court to believe that, at the time in question, he was

elsewhere. He must prove it.

Specific Rules

These rules specifically put the burden on proving certain facts on

particular persons –

As per Section 106, when any fact is especially within the knowledge of
any person, the burden of proving that fact is upon him. When a person
does an act with some intention other than that which the character and
circumstances of the act suggest, the burden of proving that intention is
upon him. For example, A is charged with traveling on a railway without a
ticket. The burden of proving that he had a ticket is on him.

Section 107 and 108 say that if a person was known to be alive within 30
yrs the presumption is that he is alive and if the person has not been heard
of for seven years by those who have naturally heard from him if he had
been alive, the presumption is that the person is death. But no presumption
can be draw as to the time of death.
Sections 109 establishes the burden in case of some relations such as
landlord and tenant, principle and agent etc. Further sections specify the
rules about burden of proof in case of terrorism, dowry death, and rape.

Exceptions

Exception 1 - The general rule in criminal cases is that the accused is

presumed innocent. It is the prosecution who is required to establish the
guilt of the accused without any doubt. At the same time, the accused is
not required to prove his innocence without any doubt but only has to
create reasonable doubt that he may not be guilty. Section 105 specifies
an exception to this general rule. When an accused claims the benefit of
the General Exception clauses of IPC, the burden of proving that he is
entitled to such benefit is upon him. For example, if an accused claims the
benefit of insanity in a murder trial, it is up to the accused to prove that he
was insane at the time of committing the crime.

In the case of K M Nanavati vs State of Maharashtra, AIR 1962, SC

explained this point. In this case, Nanavati was accused of murdering Prem
Ahuja, his wife's paramour, while Nanavati claimed innocence on account
of grave and sudden provocation. The defence's claim was that when
Nanavati met Prem at the latter's bedroom, Prem had just come out of the
bath dressed only in a towel; an angry Nanavati swore at Prem and
proceeded to ask him if he intends to marry Sylvia and look after his
children. Prem replied, "Will I marry every woman I sleep with?", which
further enraged Nanavati. Seeing Prem go for the gun, enclosed in a brown
packet, Nanavati too went for it and in the ensuing scuffle, Prem's hand
caused the gun to go off and instantly kill him.

Here, SC held that there is a presumption of innocence in favor of the

accused as a general rule and it is the duty of the prosecution to prove the
guilt of the accused beyond any doubt. But when an accused relies upon
the general exception or proviso contained in any other part of the Penal
Code, Section 105 of the Evidence Act raises a presumption against the
accused and also throws a burden on him to rebut the said presumption.
Thus, it was upon the defence to prove that there existed a grave and
sudden provocation. In absence of such proof, Nanavati was convicted of
murder.

Exception 2 - Admission - A fact which has been admitted by a party and

which is against the interest of that party, is held against the party. If the
fact is contested by the party, then the burden of proof rests upon the party
who made the admission. For example, A was recorded as saying that he
committed theft at the said premises. If A wants to deny this admission,
the burden of proof rests on A to prove so.

Exception 3 - Presumptions - Court presumes the existence of certain

things. For example, as per Section 107/108, court presumes that a person
is dead or alive based on how long he has not been heard of. Section 109,
presumes that when two people have been acting as per the relationship of
landlord - tenant, principle - agent, etc, such relationship still exists and
anybody who contends that such relationship has ceased to exist has to
provide proof. Section 110 presumes that the person who has the
possession of a property is the owner of that property. As per Section
113A, When the question is whether the commission of suicide by a
woman had been abetted by her husband or any relative of her husband
and it is shown that she had committed suicide within a period of seven
years from the date of her marriage and that her husband or such relative
of her husband had subjected her to cruelty, the court may presume, having
regard to all the other circumstances of the case, that such suicide had been
abetted by her husband or by such relative of her husband. As per Section
113B, when the question is whether a person has committed the dowry
death of a woman and it is shown that soon before her death such woman
had been subjected by such person to cruelty or harassment for, or in
connection with, any demand for dowry, the court shall presume that such
person had caused the dowry death.

Thus, when the presumption of the court is in favor of a party, the burden
of disproving it rests on the opposite party.
Examination in-chief

Chapter X deals with the examination of evidence. Further the chapter also
deals with how the evidence is presented and witnesses lay their testimony
in the court as well as the powers of the judges in such matters.

Section 135 talks about Order of production and examination of witnesses.

It reads that the order in which witness are produced and examined shall
be regulated by the law and practice for the time being relating to civil and
criminal procedure respectively, and, in the absence of any such law, by
the discretion of the Court.

The order in which the witnesses are to be presented for examination is to

be decided by the party leading the evidence and the court is very slow in
interfering with the order. However, the court has the discretion to do so as
long as it is fairly exercised.

Section 136 says that it is up to the Judge to decide as to admissibility of

evidence. The Section reads as follows.

When either party proposes to give evidence of any fact, the Judge may
ask the party proposing to give the evidence in what manner the alleged
fact, if proved, would be relevant; and the Judge shall admit the evidence
if he thinks that the fact, if proved, would be relevant, and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible

only upon proof of some other fact, such last-mentioned fact must be
proved before evidence is given of the fact first mentioned, unless the
party undertakes to give proof of such fact, and the Court is satisfied with
such undertaking.

If the relevancy of one alleged fact depends upon another alleged fact
being first proved, the Judge may, in his discretion, either permit evidence
of the first fact to be given before the second fact is proved, or require
evidence to be given of the second fact before evidence is given of the first
fact.
Illustrations: X is accused of receiving stolen property knowing it to have
been stolen. It is to prove that he denied the possession of the property.

The relevancy of the denial depends on the identity of the property. The
Court may, in its discretion, either require the property to be identified
before the denial of the possession is proved, or permit the denial of the
possession to be proved before the property is identified.

It is proposed to prove a fact (X) which is said to have been the cause or
effect of a fact in issue. There are several intermediate facts (T, U and V)
which must be shown to exist before the fact (X) can be regarded as the
cause or effect of the fact in issue. The Court may either permit X to be
proved before T, U or V is proved, or may require proof of T, U and V
before permitting proof of X.

Keeping Section 5 of the Act, a Judge may ask the party proposing to give
evidence of any fact in what manner the alleged fact will be relevent if
proved. A party seeking to put a document in evidence must show the
section or provisions under which the document is admissible.

Section 137 says that examination in-chief is the examination of a witness

by the party who calls him and the examination of a witness by the adverse
party shall be called his cross-examination. The examination of a witness,
subsequent to the cross-examination by the party who called him, shall be
called his re-examination.

Examination in Chief is the first examination after the witness has been
sworn or affirmed. It is the prerogative of the party by who the witness has
been called to examine him in chief so as to get all the material facts
within his knowledge to prove such a party’s case.

Cross-Examination

Cross-Examination is a powerful tool to test the veracity of a witness and

the accuracy or completeness of what he has stated. Cross- examination
can at times take form of intensive questioning with the expected answers
hinted to in such questions itself.
The examination and cross – examination has to be related to relevant facts
but the cross –examination need not be confined to the facts to which the
witness testified on his examination –in-Chief.

Re-examination

The re-examination shall be directed to the explanation of matters referred

to in cross-examination ; and , if new matter is, by permission of the Court,
introduced in-re-examination, the adverse party may further cross-examine
upon that matter.

In civil cases, the advocate or counsel narrates the facts of the case and this
is known as the opening of the peading. In criminal cases, one of the
officers of the ourt reads out the summary of charge levelled against the
accused as well as his plea.

Now three basic stages can be laid down in the examination of witnesses:

EXAMINATION IN CHIEF: Where the advocate for the party calling

the witness introduces the witness and examines him, whether for the
plaintiff or the defendant. It is a vivavoce examination. Here the questions
are to the witness and he answers them and the answers are dult recorded.
No leading questions ahould be posed here. It is preferable that the
questions move in a chronological order so that the information presented
can be lonked to the case better. Only relevant questions can be asked.
Here the questions are asked for the sake of an answer, generally one that
supports and proves the case for the party who called the witness.

CROSS EXAMINATION: The cross-examination is also called

examination exadverso. It can be used to impeach the credibility of the
witness as well as expose the inaccuracies of the evidence of the particular
witness.

If the defense fails to challenge the relevant facts that have been stated by
the prosecution witness in the examination-in-chief, the court may take it
as acceptance of the truth of such facts as was decided in GANESH
JADHAV V STATE OF ASSAM 1995 1 CR LJ 111.
RE-EXAMINATION: If the counsel thinks it is necessary, he may with
the permission of the court re-examine hiw own witness. RE-examination
cannot be claimed as a matter of right and its purpose is only to explain the
new points or matter that may have been raised in the cross-examination
and not to prove any other fact.

An order of re-examintaion can be made by the court on an application by

a party or by court’s own motion. If the prosecution does not examine its
witness and offers him to be cross-examined, it is tantamount to
abandoning one’s own witness anf therefore, a witness cannot be thrwon
open to cross examination unless he is first examined-in-chief.

Each question should call for a fact and not for opinions or conclusions on
law.

Section 138 lays down the order of examinations of witnesses or turns in

simple terms. It says that witnesses shall be first examined-in-chief, then
(if the adverse party so desires) cross –examined, then (if the party calling
him so desires) re-examined.

Now sometimes a person is called to the court to produce a document.

Section 139 says that such a person does not become a witness by the mere
fact that he produces it and cannot be cross examined unless and until he is
called as a witness. This principle was reteriated in BIJOY BHARATI V
FAKRUL HUSSAIN 1976 3 SCC 642.

Further Section 140 says that witnesses to character may be cross-

examined and re-examined.

This is an important basic concept of the law of evidence. We have to

know about Leading questions. Section 141 says that any question
suggesting the answer which the person putting it wishes or expects to
receive is called a leading question.

Illustration: The purpose of examination-in-chief is that the witness can

tell the relevent facts in his own words and put them across himself. A
leading question is where a person does not have this freedom. For
instance, if a witness is asked, “Do you live at XYZ place, City M?”, he
will answer in a mere yes or no and thus, it is said that leading questions
put the answer in the mouths of the witnesses.

A leading question can put in the examination-in-chief or the re-

examination with the permission of the Court. They cannot asked if
objected to by the adverse party, in an examination-in-chief, or in a re-
examination, except with the permission of the Court as per Section 142.
The Courts permit leading questions as to matters which are introductory
or undisputed, or which have, in its opinion, been already sufficiently
proved. A leading question may be asked in cross examination as per
Section 143.

Section 144 says that any witness may be asked, whilst under examination
whether any contract, grant or other disposition of property, as to which he
is giving evidence, was not contained in a document, and if he says that it
was, or if he is about to make any statement as to the contents of any
document, which, in the opinion of the Court, ought to be produced, the
adverse party may object to such evidence being given until such
document is produced, or until facts have been proved which entitle the
party who called the witness to give secondary evidence of it.

In simple terms, a witness can give oral evidence of statements made by

other persons about the contents of documents if such statements are in
themselves relevant facts.

Illustration: The question is, whether X assaulted Y. M deposes that he

heard X say to N-“Y wrote a letter accusing me of theft, and I will be
revenged on him”. This statement is relevant, as showing X’s motive for
the assault, and evidence may be given of it, though no other evidence is
given about the letter.

Section 145 allows the cross- examination of a witness with respect to

previous statements made by him in writing or reduced into writing or
reduced into writing, and relevant to matters in question, without such
writing being shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the writing can be
proved, be called to those parts of its which are to be used for the purpose
of contradicting him.

The general rle is that the contents of a writing cannot be used unless the
writing is itsel produced. This section is an exception to this rule. The
prpose is two-fold, one that the credit of the witness can be impeached as
well as that the statement cannot be used as a positive evidence of the facts
contained inwriting. This Section mandates that if any contradiction in the
evidence of a witness in his previous statement is intended to be used, the
attention of the witness must be called to that particular part of his
previous statement and has to proved in an appropriate manner.

This Section applies only to contradictions. But if there are omissions in

the previous statements that are not contradictions but throw some doubt
on the veracity of what was omitted, the uncertainty may be capable of
removal by questions in re-examination as was decided in LAXMAN V
STATE 1974 3 SCC 704.

Section 146 says that a witness during cross-examination, may, in addition

to the questions herein before referred to, be asked any questions which
tend:

1) to test his veracity.

2) to discover who he is and what is his position in life, or

3) to shake his credit, by injuring his character, although the answer to

such questions might tend directly or indirectly to criminate him or
might expose or tend directly or indirectly t expose him to a penalty or
forfeiture.

Such questions can be asked even if the answer might tend to directly or
indirectly incriminate the witness or expose him to a penalty or forfeiture.
Impeaching credit of Witness

The credit of a witness may be impeached in the following ways by the

adverse party, or, with the consent of the Court, by the party who calls
him:-

(1) by the evidence of persons who testify that they, from their knowledge
of the witness believe him to be unworthy of credit;

(2) by proof that the witness has been bribed, or has 90[accepted] the offer
of a bride, or has received any other corrupt inducement to give his
evidence;

(3) by proof of former statements inconsistent with any part of his

evidence which is liable to be contradicted;

(4) When a man is prosecuted for rape or an attempt to ravish, it may be

shown that the prosecutrix was of generally immoral character.

Explanation – A witness declaring another witness to be unworthy of

credit may not, upon his examination-in-chief, give reasons for his belief,
but he may be asked his reasons in cross-examination, and the answers
which he gives cannot be contradicted, though, if they are false, he may
afterwards be charged with giving false evidence.

Illustrations

(a) A sues B for the price of goods sold and delivered to B. C says that he
delivered the goods to B.

Evidence is offered to show that, on a previous occasion, he said that

he had delivered goods to B.

The evidence is admissible.

(b) A is indicated for the murder of B.

C says that B, when dying, declared that A had given B the wound of
which he died.
 Evidence is offered to show that, on a previous occasion, C said that
the wound was not given by A or in his presence.

The evidence admissible.

Question

1. Discuss Facts in Issue and relevant fact in detail

2. Write a brief note on Dying Declaration

3. Mention the Conditions to be followed by approver:

4. Distinguish Presumptions of law and Presumption of Fact

BLOCK 5 - JUDGEMENTS

Post-conviction orders in lieu of punishment

Sentencing After conviction, a defendant may be allowed to remain free

until sentencing. The decision on this issue is made by the court, and it
depends on the nature of the conviction and the nature of the defendant's
perceived character. For example, a court will not allow a convicted
murderer or rapist to remain free until sentencing. A court may, however,
allow anonviolent convict to post a bond and to remain free pending
sentencing.

Sentencing for a felony conviction is usually heard by the court in a

separate hearing held several days or weeks after the verdict. At a felony
sentencing hearing, the prosecution makes a recommendation of
punishment, and the defendant usually argues for leniency. For lesser
offenses, such as misdemeanors and violations, sentencing may
immediately follow the verdict.

Judges generally have wide discretion to craft individualized sentences

within statutory guidelines. However, states violate defendants' Sixth
Amendment right to trial by jury in capital cases when they authorize the
sentencing judge alone todetermine the presence or absence of aggravating
factors required for the imposition of the death penalty. Ring v.
Arizona,536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). And
where a capital defendant's future dangerousness is at issue and the only
sentencing alternative to death available to the jury is life imprisonment
without the possibility of Parole, due process requires the court to allow
the defendant to inform the jury of his or her parole ineligibility, either by
a jury instruction or in arguments by counsel. Shafer v. South Carolina,
532 U.S. 36, 121 S. Ct. 1263, 149 L. Ed. 2d 178 (2001).

Sentencing can include any combination of community service, Forfeiture

of property, fines, and incarceration. Courts may also exercise their
sentencing discretion and order a term of Probation.
Under state and federal forfeiture laws, law enforcement authorities are
authorized to confiscate property of certain criminal defendants. Under
federal law, persons who have been convicted of controlled-substance
violations or Racketeeringschemes may be forced to relinquish much of
their Personal Property, including real estate, stocks, cash savings, and
vehicles. States also authorize forfeitures for the violation of certain state
laws, such as those regarding controlled substances and the solicitation of
prostitution.

Probation releases a convicted defendant into the community under the

supervision of a probation officer. This type of sentence is generally
reserved for first-time offenders, to give them an opportunity to reform and
rehabilitate.

A probationer will be called back into court and sentenced to serve a term
of incarceration if he or she breaks the terms of the probation. For
example, suppose that a person who has been convicted of marijuana
possession and sentenced to probation has been ordered to complete
treatment for chemical dependency and to report to a probation officer
twice a week. If the probationer fails to complete these requirements, the
court may order the defendant to serve a period of incarceration for the
marijuana offense.

If probation is revoked, the probationer is entitled to counsel. However, an

indigent probationer is not automatically entitled toa court-appointed
attorney. Whether a probationer receives free counsel depends on a
number of factors. Generally, the court will appoint an attorney if an
indigent probationer denies committing the alleged act and faces lengthy
imprisonment.

Under the Eighth Amendment prohibition of cruel and unusual

punishment, sentencing and confinement in jail or prison may not involve
torture or barbarity. The Eighth Amendment is also construed as meaning
that the punishment should fit the crime. For example, it would be cruel
and unusual punishment to sentence a person who has been convicted of
trespassing to the same punishment as a person who has been convicted of
Homicide.

With regard to the amount of punishment that may be inflicted, the

prohibition against cruel and unusual punishment also bars punishment
that is clearly out of proportion to the offense committed. The U.S.
Supreme Court has considered the issue of proportionality, particularly in
the context of the death penalty. In Coker v. Georgia, 433 U.S. 584, 97 S.
Ct. 2861, 53 L. Ed.2d 982 (1977), the Court held that death was a
disproportionate penalty for the crime of raping an adult woman.

But the high court has held that the death penalty itself is not inherently
cruel, instead describing it as "an extreme sanction, suitable to the most
extreme of crimes" (Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L.
Ed. 2d 859 [1976]). Modern methods of administering Capital Punishment,
such as shooting, hanging, electrocution, and lethal injection, have been
upheld as constitutional by federal and state courts. The U.S. Supreme
Court has held that statutes providing a mandatory death sentence for
certain degrees or categories of murder are unconstitutional because they
preclude sentencing authorities from considering aspects of a particular
defendant's character or record, or from considering circumstances that
might mitigate a particular crime (see Lockett v. Ohio, 438 U.S. 586, 98 S.
Ct. 2954, 57 L. Ed. 2d 973 [1978]). In Ford v.Wainwright, 477 U.S. 399,
106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986), the Court held that the Eighth
Amendment prohibits states from inflicting the penalty of death upon a
prisoner who is insane.

The U.S. Supreme Court has also ruled that the execution of mentally
retarded criminals violates the Eighth Amendment's guarantee against
cruel and unusual punishment. Atkins v. Virginia, 536 U.S. 304, 122 S. Ct.
2242, 153 L. Ed. 2d 335(2002). Citing "evolving standards of decency,"
the Court stated that its decision was informed by a national
consensusreflected in deliberations of the American public, legislators,
scholars, and judges. Atkins overruled Penry v. Lynaugh, 492U.S. 302,
109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989), a decision rendered just 13
years earlier. However, in Stanford v.Kentucky, 492 U.S. 361, 109 S. Ct.
2969, 106 L. Ed. 2d 306 (1989), the Court found that there was no national
consensus prohibiting the execution of juvenile offenders over age 15.

Appeal Contrary to popular belief, the U.S. Constitution does not

guarantee the right to appeal a criminal conviction. Most states do provide
the right to an appellate review of criminal convictions, to protect against
trial court errors. However, many states limit their review of state court
convictions by hearing only short oral arguments and issuing decisions
without explanation.

Federal statutes grant criminal defendants in federal court the right to

appeal. Only one review is granted as a matter of right, and this is to a U.S.
court of appeals. Review of state and federal convictions in the U.S.
Supreme Court is discretionary.

Where a criminal appeal is granted by state law as a matter of right, the

court is required to appoint an attorney to represent indigent defendants on
appeal. An indigent defendant is also entitled to a free trial transcript or
other means of affording appellate review; this applies to any indigent
defendant, including one who is punished only with a fine.

On appeal, the burden is on the defendant to prove that an error occurred

in the trial or that the evidence was insufficient to convict. Appellate
courts reviewing a defendant's challenge to the appropriateness of a
particular sentence must generally apply a deferential standard of review.
Sentencing courts are in a better position than are appellate courts to
decide whethera particular set of individual circumstances justifies the
imposition of a given sentence under the sentencing guidelines, the U.S.
Supreme Court has observed. Burford v. United States, 532 U.S. 59, 121
S. Ct. 1276, 149 L. Ed. 2d 197 (2001).Defendants must raise all claims of
trial error in their first appeal in order to preserve the claims for future
appeals.
Habeas Corpus Petitions After an incarcerated defendant has exhausted all
appeals without success, he or she may file a writ of Habeas Corpus. This
is a civil suit against the warden of the prison (in his or her professional
capacity), challenging the constitutionality of the incarceration. There is no
right to the assistance of an attorney for habeas corpus petitions.

A habeas corpus petition is not another appeal. The only basis for a writ of
habeas corpus is the deprivation of a constitutional right. For example, an
inmate may claim that he or she was denied the assistance of counsel
guaranteed by the Sixth Amendment, because the defense attorney was
incompetent. But defendants generally may not rely on habeascorpus
proceedings to challenge a federal sentence on the ground that the prior
state convictions upon which the federal sentence was based had been
unconstitutionally obtained. Daniels v. United States, 5532 U.S. 394, 121
S.Ct. 1567, 149 L.Ed. 2d 608 (2001).

Parole If an inmate is released on parole and then violates the terms of the
parole, he or she must attend a hearing todetermine whether parole will be
revoked. The parolee may be entitled to the assistance of counsel at the
revocationhearing. This entitlement will depend on a number of factors,
including whether the parolee denies committing the allegedacts, as well
as the rules of the parole board. If the parolee can afford a private attorney,
he or she is free to hire one; there is no bar to representation in
parolerevocation hearings.

Inmates who seek parole often cite mitigating factors that existed either
before, after, or at the time the crime was committed. However, parole
boards and related Executive Branch departments are under no obligation
to give mitigating evidence any weight, and may typically reject an
inmate's request for parole without providing any reason for doing so.
Accordingly, the federal Bureau of Prisons has the authority to adopt
regulations that categorically deny early-release incentive to prisoners
whose current offense was a felony attended by "the carrying, possession,
or use of a firearm." Lopez v. Davis, 531 U.S. 230,121 S.Ct. 714, 148 L.
Ed. 2d 635 (2001)

Appeal

The term appeal is an undefined term, it means the removal of a cause

from an inferior court to a superior one for the purpose of testing the
soundness of the decision of the inferior court. In-other words, it is a
complaint made to a superior court against the decision of a subordinate
court with the object of getting such order set-aside or reversed. Appeal is
the continuation of the original proceedings before a superior court. The
statutory right of appeal confers the right of re-hearing the whole dispute,
unless expressly restricted in scope and the appellate court is not confined
to the reasons which have been given by subordinate court for its decision.
In-accordance with section (96) of CPC an appeal lies against all decrees
passed by a court in the exercise of original civil jurisdiction, except
consent decree, and decree passed in suit filed under section (9) of the
Specific Relief Act, and a final decree, the preliminary decree of which is
not challenged. Appeal also lies against an order if so provided for by
section (104), or order (43) CPC. Who may appeal: As an appeal is a
continuation of the suit only such persons who were parties to the suit and
who are adversely affected by the decree may appeal. A person who was
not a partyto the suit cannot appeal against the decree, unless such person
is adversely affected, andis permitted by the Appellate Court to file an
appeal. Forum of Appeal: The right of appeal is a substantive right, forum
of appeal is a matter of governed by procedural law. Powers of Appellate
Court: An appelate court may either confirm, vary, or reverse the decree or
pass the order of remand of the case. Revision: Revision means re-
examination of cases which involve the illegal assumption, non exercise or
irregular exercise of Jurisdiction.
Reference and revisions

Revision and Review of Judgment:

1. The power of revision is exercised by the court superior to the court

which decided the case but the power of review is exercised by the
very court which passed the decree or order.

2. The power of revision is conferred on the High Court only, which is

not so in the case of review. Any court can review its judgment.

3. Revisional powers by the High Court can be exercised only in a case

when there is no appeal to the High Court, but review can be made
even when appeal lies to the High Court therein.

4. The grounds on which the powers of revision and review can be

exercised are different. The ground for revision relates to jurisdiction,
viz., want of jurisdiction, failure to exercise a jurisdiction, or illegal or
irregular exercise of jurisdiction, while the ground of review may be

(a) The discovery of new and important matter or evidence,

(b) Some apparent mistake or error on the face of the record, or (c)
any other sufficient reason.

5. In revision the High Court can, of its own accord, send for the case,
but for review an application has to be made by the aggrieved party.

6. No appeal lies from an order made in the exercise of revisional

jurisdiction, but the order granting review is appealable.

2. Appeal and Reference:

1. A right of appeal is a right conferred on the suitor, while the power of

reference is vested in the court.

2. Reference is always made to the High Court, while an appeal is

preferred to a superior court which need not necessarily be High
Court.
3. The grounds of appeal are wider than the grounds of reference.

4. Reference is made in a pending suit, appeal or execution proceeding in

order to enable the court to arrive at a correct conclusion, while an
appeal is preferred after the decree is passed or an appealable order is
made.

3. Appeal and Revision:

1. An appeal lies to a superior court, which may not necessarily be a

High Court; but an application for revision lies only the High Court.

2. An appeal lies only from appealable orders and decree, but an

application for revision can be made only when the relief by way of
appeal to the High Court is not available.

3. A right of appeal is a substantive right given by statute. There is no

right of revision. It is only a privilege. A party may move the High
Court to invoke its revisional jurisdiction or the High Court may of its
own motion exercise revisional jurisdiction, but the power is
discretionary.

4. An appeal abates if the legal representatives of a deceased party are

not brought on the record within the time allowed by law. A revision
does not abate in case of the death of a party even if the legal
representatives are not brought on the record. The High Court has a
right to bring the proper parties before the Court at any time.

5. The grounds of appeal and revision are different. An application in

revision can lie only on the ground of jurisdiction, and the High Court
in exercise of its revisional jurisdiction is not a court of appeal on a
question of law or fact. In an appeal the court has the power to decide
both questions of fact and law.

6. Section 115 does not require that there should be an application in

revision. The High Court can move of its own accord in exercising
revisional jurisdiction. In case of appeal there must be a memorandum
of appeal filed before the same can be considered by the appellate
court.
7. An essential distinction between an appeal and a revision is based on
differences implicit in the said two expressions. An appeal is
continuation of the proceedings. In effect, the entire proceedings are
before the appellate authority and it has power to review the evidence
subject to the statutory limitations prescribed. But in the case of a
revision, whatever powers the revisional authority may or may not
have; it has not the power to review the evidence unless the statute
expressly confers on it that power. (State of Kerala v. K.M. Charia
Abdidla & Co., A.I.R. 1965 S.C. 1585).

4. Second Appeal and Revision:

1. A second appeal lies to the High Court from every decree passed in
appeal by a subordinate court only if the High Court is satisfied that
the case involves a substantial question of law. The grounds of
revision are, however, different. They relate to jurisdiction.

2. The revisional powers of the High Court can be invoked in cases

which no appeal or second appeal lies to the High Court. This is not so
in second appeal.

3. The Court will not in its revisional jurisdiction enter into merits of the
case however erroneous the decision of the lower court is on an issue
of law or of fact but will interfere only to see that requirements of law
have been properly obeyed by the court whose order is the subject of
revision.

Although no second appeal can be preferred on a question of fact yet

when such an appeal is already before the High Court, it may
determine issues of fact where such issues have not been determined
provided that the evidence on the record is sufficient for such
determination.

4. In revisional matters the High Court may decline to interfere if it is

satisfied that substantial Justice has been done. But on questions of
law in second appeal, no discretion vests in the High Court and it has
no right to decide merely on equitable grounds.
5. Reference and Revision:

1. In reference the case is referred to the High Court by a court

subordinate to it. On the other hand, the party aggrieved moves the
High Court in revision for the exercise of its revisional jurisdiction, or
the High Court may sua motu send for the case and examine the
record.

2. The ground for reference is the entertainment of some reasonable

doubt by the Court trying the suit, appeal or executing the decree with
regard to a question of law or usage having the force of law. The
ground for revision, on the other hand, relates to jurisdiction, viz.,
want of jurisdiction, failure to exercise a jurisdiction or illegal or
irregular exercise of jurisdiction.

6. Reference and Review:

1. In reference the subordinate court refers the case to the High Court
while in review an application is made by the aggrieved party.

2. The High Court alone can decide matters on reference while an

application for review is made to the court which passed the decree or
made the order.

3. Reference is made during the pendency of the suit, appeal or

execution proceedings, while application for review is made to the
court after it has passed the decree or made the order.

4. The grounds of reference and review are different. Reference is made

by the court trying the suit, appeal or executing the decree when it
entertains reasonable doubt with regard to any question of law or
usage having the force of law. The grounds of review may be the
discovery of new and important matter or evidence, some apparent
mistake or error on the face of the record or any other sufficient
reason.
7. Review and Appeal:

1. An application for review lies to the same court while an appeal lies to
a higher court.

2. The main object of granting a review of judgment is reconsideration

of the same matter by the same Judge, while an appeal is heard by
another Judge.

3. The grounds of review are narrower than the grounds of appeal.

4. There is no second review, but there is second appeal on a substantial

question of law.

Transfer of criminal cases

Courts are often frequented with petitions for transfer of cases pending in
one court to another court. In order to deal with such cases, the Criminal
procedure Code 1974 has provided Sec 406. This section confer power on
the courts to transfer cases and may be stated thus:- i) Sec 406 Criminal
Procedure Code deals with transfer of cases from the court of one State to
another State. The Supreme Court may direct that any particular case or
appeal be transferred from one High Court to another High Court or from a
criminal court subordinate to one High Court to another criminal court of
equal or superior jurisdiction subordinate to another court. This power can
be exercised whenever, it is made to appear to the Supreme Court that an
order under Sec 406 CrPC is expedient for the ends of justice; ii) For
exercising the powers under Section 406, the Supreme Court can act only
on the application of the Attorney-General of India or of a party interested.
Every such application shall be made by motion, which shall except, when
the applicant is the Attorney-General of India or the advocate General of
the State be supported by affidavit or affirmation. iii) In the event of
dismissal of any such application, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the applicant
to pay by way of compensation to any person who has opposed the
application, such sum not exceeding one thousand rupees as it may
consider appropriate in the circumstances of the case. A summary of Sec
406 of the Criminal Procedure Code gives the following norms:- a) Power
to transfer a case from one State to a court in another Stae can be exercised
by the Supreme Court only; b) The Supreme Court will transfer a case, if
there is a reasonable apprehension on the part of a party to a case that
justice will not be done; c) The application for transfer must be made by
the Attorney-General or Advocate-General of the State or of a party
interested; and d) The jurisdiction under Sec 406 arises in the interests of
justice only. 2. A mere allegation of apprehension is not enough and the
court has to see whether the apprehension is reasonable.1 Where a person
was convicted on the charge of an attempt to commit murder of the Chief
Justice of the State, the petition made for transfer of the appeal case to
another High Court on the plea that the appellant will not get fair and
impartial hearing in the court presided by the complainant, the Supreme
Court ordered the transfer of the case.2 Illustrations can be given of a few
cases where the Supreme Court ordered the transfer of the cases and can
be stated thus:- i) The complainant being the only witness in the case and
the petitioner was poor;3 ii) Where there was every likelihood of physical
harm being caused to the petitioner,4 and iii) Where all essential attributes
of a fair and impartial trial are put in jeopardy.5 3. While observing that no
hard and fast rules can be prescribed for deciding transfer petitions, the
apex court stated6 that such cases have to be decided on the basis of fact of
each case, convenience of parties including witnesses to be produced at the
trial and relevant considerations to be taken into account. In all cases the
paramount considerations should be the need to meet the ends of justice7.
The norms laid down in Abdul Nazar Madan’s case8 can be stated as
follows:- i) The purpose of the criminal trial is to dispense fair and
impartial justice, uninfluenced by extraneous considerations; ii) Where it is
shown that public confidence in the fairness of the trial could be seriously
undermined, any party can seek a transfer; iii) The apprehension that a
party will not get a fair and impartial inquiry or trial should be reasonable.
It should not be based on mere conjectures and surmises; iv) If it appears
that the dispensation of criminal justice is not possible impartially and
objectively and without bias, the court may order transfer of a case to a
court where the holding of a fair and proper trial is conducive; v)
Convenience of parties can be a relevant ground for transfer. Convenience
of parties would include convenience of the prosecution, other accused
persons if any, the witnesses and the larger interests of society;9 vi) Safety
of the women petitioner was considered as a aground for transfer of a
criminal case from Delhi to Durg;10 vii) Convenience of the prosecuting
agency and the language in which all the witnesses had to depose before
the court was regarded as a ground for transfer of a case;11 viii) Speedy
trial can also be a ground for transfer of a case;12 ix) In a transfer case
from Delhi to Mumbai the following facts were taken into consideration in
ordering the transfer of a case:- a) Corruption case against the working
couple one employed in Gujarath and the other in Maharashtra; b) Large
number of witnesses were from Maharashtra; c) Most of the investigation
and searches were made in Maharashtra; d) Travelling expenses of parties
and witnesses to Delhi, apart from expenses would cause delay violating
the right to speedy trial; e) Prosecuting agency has well-equipped office in
Maharashtra; and f) Court handling CBI cases were located in
Maharashtra.

The desirability of conferring a statutory right to parties to seek transfer of

a case needs to be provided apart from the discretionary power of the
Supreme Court to transfer a case. The statutory right may be provided by a
suitable provision which can be on these lines:- Proposed Amendment
Section 406A: The parties shall have the right to transfer of a case from
one State to another State, if they satisfy the Supreme Court: i) That it
would be convenient to a large number of witnesses to be examined in the
court and the language in which they will depose in the court; ii) The most
of the issues relating to investigation such searches and other matters
connected with investigation arise in that State; iii) That it is convenient to
the prosecution to conduct the case, as it has a well-equipped office and a
court of competent jurisdiction exists in that State to try, in order ensure
speedier and expeditious trial; and iv) Any other ground, which the
Supreme Court considers to be just and equitable in the interests of the
entire trial of the case. The Supreme Court will be able to deal with all
typical new cases which require special consideration in view of clause
(iv) suggested above.

Suspension of sentence

Section 389 in The Code Of Criminal Procedure, 1973

389. Suspension of sentence pending the appeal; release of appellant on

bail.

(1) Pending any appeal by a convicted person, the Appellate Court may,
for reasons to be recorded by it in writing, order that the execution of
the sentence or order appealed against be suspended and, also, if he is
in confinement, that he be released on bail, or on his own bond.

(2) The power conferred by this section on an Appellate Court may be

exercised also by the High Court in the case of an appeal by a
convicted person to a Court subordinate thereto.

(3) Where the convicted person satisfies the Court by which he is

convicted that he intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment

for a term not exceeding three years, or

(ii) where the offence of which such person has been convicted is a
bailable one, and he is on bail, order that the convicted person be
released on bail, unless there are special reasons for refusing bail,
for such period as will afford sufficient time to present the appeal
and obtain the orders of the Appellate Court under sub- section
(1); and the sentence of imprisonment shall, so long as he is so
released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term
or to imprisonment for life, the time during which he is so released
shall be excluded in computing the term for which he is so sentenced.

Executions

413. Execution of order passed under section 368.

When in a case submitted to the High Court for the confirmation of a

sentence of death, the Court of Session receives the order of confirmation
or other order of the High Court thereon, it shall cause such order to be
carried into effect by issuing a warrant or taking such other steps as may
be necessary.

414. Execution of sentence of death passed by High Court.

When a sentence of death is passed by the High Court in appeal or in

revision, the Court of Session shall, on receiving the order of the High
Court, cause the sentence to be carried into effect by issuing a warrant.

415. Postponement of execution of sentence of death in case of appeal to

Supreme Court.

(1) Where a person is sentenced to death by the High Court and an appeal
from its judgment lies to the Supreme Court under sub-clause (a) or
sub-clause (b) of clause (1) of Article 134 of the Constitution, the
High Court shall order the execution of the sentence to be postponed
until the period allowed for preferring such appeal has expired, or if
an appeal is preferred within that period, until such appeal is disposed
of.

(2) where a sentence of death is passed of confirm by the high court, and
the person sentenced makes an application to the High Court for the
grant of a certificate under Article 132 or under sub-clause (c) of
clause (1) of article 134 of the Constitution, the High Court shall order
the execution of the sentence to be postponed until such application is
disposed of by the High Court, or if a certificate is granted on such
application until the period allowed for preferring an appeal to the
Supreme Court on such certificate has expired.
(3) Where a sentence of death is passed or confirmed by the High Court,
and the High Court is satisfied that the person sentenced intends to
present a petition to the Supreme Court for the grant of special leave
to appeal under Article 136 of the Constitution, the High Court shall
order the execution of the sentence to be postponed for such period as
it considers sufficient to enable him to present such petition.

418. Execution of sentence of imprisonment.

(1) Where the accused is sentenced to imprisonment for life or to

imprisonment for a term in cases other than those provided for by
section 413, the Court passing the sentence shall forthwith forward a
warrant to the jail or other place in which he is, or is to be, confined,
and, unless the accused is already confined in such jail or other place,
shall forward him to such jail or other place, with the warrant:

Provided that where the accused is sentenced to imprisonment till the

rising of the Court, it shall not be necessary to prepare or forward a
warrant to a jail and the accused may be confined in such place as the
court may direct.

(2) Where the accused is not present in Court when he is sentenced to

such imprisonment as is mentioned in subsection (1), the court shall
issue a warrant for his arrest for the purpose of forwarding him to jail
or other place in which he is to be confined and in such case the
sentence shall commence on the date of his arrest.

419. Direction of warrant for execution.

Every warrant for the execution a sentence of imprisonment shall be

directed to the officer-in charge of the jail or of the place in which the
prisoner is, or is to be, confined.

Suspension

424. Suspension of execution of sentence of imprisonments.

(1) When an offender has been sentenced to fine only and to
imprisonment in default of payment of the fine and the fine is not paid
forthwith, the court may-

(a) Order that the fine shall be payable either in fully on or before a
date not more than thirty days from the date of the order, or in
two or three installments, of which the first shall be payable on or
before a date not more than thirty days from the date of the order
and the other or others at an interval or at intervals, as the case
may be, of not more than thirty days;

(b) Suspend the execution of the sentence of imprisonment and

release the offender, on the execution by the offender of a bond,
with or without sureties, as the court thinks fit, on conditioned for
his appearance before the court on the date or dates on or before
which payment of the fine or the installment thereof, as the case
may be, is to be made; and if the amount of the fine or of any
installment, as the case may be, is not realised on or before the
latest date on which it is payable under the order, the court may
direct the sentence of imprisonment to be carried into execution at
once.

(2) The provisions of sub-section (1) shall be applicable also in any case
in which an order for the payment of money has been made on non-
recovery of which imprisonment may be awarded and the money is
not paid forthwith; and, if the person against whom the order has been
made, on being required to enter into a bond such as is referred to in
that sub-section, fails to do so, the court may at once pass sentence of
imprisonment.

425. Who may issue warrant.

Every warrant for the execution of a sentence may be issued either by the
Judge or Magistrate who passed the sentence, or by his successor in-
officer.
426. Sentence on escaped convict when to take effect.

(1) When a sentence of death, imprisonment for life or fine is passed

under this Code on an escaped convict, such sentence shall, subject to
the provisions hereinbefore contained, take effect immediately.

(2) When a sentence of imprisonment for a term is passed under this Code
on an escaped convict,

(a) If such sentence is severer in kind than the sentence, which such
convict was undergoing when he escaped, the new sentence shall
take effect immediately;

(b) If such sentence is not severer in kind than the sentence, which
such convict was undergoing when he escaped, the new sentence
shall take effect after he has suffered imprisonment for a further
period equal to that, which, at the time of his escape, remained
unexpired of his former sentence.

(3) For the purposes of sub-section (2), a sentence of rigorous

imprisonment shall be deemed to be severer in kind than a sentence of
simple imprisonment.

427. Sentence on offender already sentenced for another offence.

(1) When a person already undergoing a sentence of imprisonment is

sentenced on a subsequent conviction to imprisonment or
imprisonment for life, such imprisonment or imprisonment for life
shall commence at the expiration of the imprisonment to which he has
been previously sentenced, unless the court directs that the subsequent
sentence shall run concurrently with such previous sentence:

Provided that where a person who has been sentenced to

imprisonment by an order under section 122 in default of furnishing
security sentenced to imprisonment for an offence committed prior to
the making of such order, the latter sentence shall commence
immediately.
(2) When a person already undergoing a sentence of imprisonment for life
is sentenced on a subsequent conviction to imprisonment for a term or
imprisonment for life, the subsequent sentence shall run concurrently
with such previous sentence.

428. Period of detention undergone by the accused to be set off against the
sentence of imprisonment.

Where an accused person has, on conviction, been sentenced to

imprisonment, for a term not being imprisonment in default of payment of
fine, the period of detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and before the date of such
conviction shall be set off against the term of imprisonment imposed on
him on such conviction, and the liability of such person to undergo
imprisonment on such conviction shall be restricted to the remainder, if
any, of the term of imprisonment imposed on him.

Provided that in cases referred to in section 433A, such period of detention

shall be set off against the period of fourteen years referred to in that
section.

Cr PC (Amendment) Act, 2005 (Notes on Clauses)

As the provision of section 433A adversely affects the reformation of lifer,

whose case inspite of good conduct in jail cannot be referred to the
Advisory Board for recommending his premature release to the State
Government, unless he has completed 14 years of actual imprisonment.
Section 428 has been amended to provide that the period for which the life
convict remained in detention during investigation, inquiry or trial shall be
set off against the period of 14 years of actual imprisonment prescribed in
section 433A.

COMMENTS

(i) Benefit of set off under section 428 is not available to life convicts;
Kartar Singh v. State of Haryana, AIR 1982 SC 1433.
(ii) It has been held that detention under the preventive detention laws is
not punitive but is essentially a precautionary measure intended to
prevent and intercept a person before he commits an infra-active act
which he had done earlier; Maliyakkal Abdul Aneez v. Assistant
Collector, AIR 2003 SC 928.

429. Saving.

(1) Nothing in section 426 or section 427 shall be held to excuse any
person from any part of the punishment to which he is liable upon his
former or subsequent conviction.

(2) When an award of imprisonment in default of payment of a fine is

annexed to a substantive sentence of imprisonment and the person
undergoing the sentence is after its execution to undergo a further
substantive sentence or further substantive sentences of imprisonment,
effect shall not be given to the award of imprisonment in default of
payment of the fine until the person has undergone the further
sentence or sentences.

430. Return of warrant on execution of sentence.

When a sentence has been fully executed, the officer executing it shall
return the warrant to the court from which it is issued, with an
endorsement under his hand certifying the manner in which the sentence
has been executed.

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

Any money (other than a fine) payable by virtue of any order made under
this Code, and the method of recovery of which is not otherwise expressly
provided for, shall be recoverable as if it were a fine.

Provided that section 421 shall, in its application to an order under section
359, by virtue of this section, be construed as if in the proviso to sub-
section (1) of section 421, after the words and figures “under section 357”,
the words and figures “or an order for payment of costs under section 359”
had been inserted.

Remission

432. Power to suspend or remit sentences.

(1) When any person has been sentenced to punishment for an offence,
the appropriate Government may, at any time, without conditions or
upon any conditions that the person sentenced accepts, suspend the
execution of his sentence or remit the whole or any part of the
punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for

the suspension or remission of a sentence, the appropriate Government
may require the presiding Judge of the court before or by which the
conviction was had or confirmed, to state his opinion as to whether the
application should be granted or refused, together with his reasons for
such opinion and also to forward with the statement of such opinion a
certified copy of the record of the trial or of such record thereof as
exists.

(3) If any condition on which a sentence has been suspended or remitted

is, in the opinion of the appropriate Government, not fulfilled, the
appropriate Government may cancel the suspension or remission, and
thereupon the person in whose favour the sentence has been
suspended or remitted may, if at large, be arrested by any police
officer, without warrant and remanded to undergo the, unexpired
portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this

section may be one to be fulfilled by the person in whose favour the
sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or special orders,
give directions as to the suspension of sentences and the conditions on
which petitions should be presented and dealt with:

Provided that in the case of any sentence (other than a sentence of

fine) passed on a male person above the age of eight years, no such
petition by the person sentenced or by any other person on his behalf
shall be entertained, unless the person sentenced is in jail, and, –

(a) Where such petition is made by the person sentenced, it is

presented through the officer in charge of the jail; or

(b) Where such petition is made by any other person, it contains a

declaration that the person sentenced is in jail.

(6) The provisions of the above sub-Sections shall also apply to any order
passed by a Criminal Court under any section of this Code or of any
other law, which restricts the liberty of any person or imposes any
liability upon him or his property.

(7) In this section and in section 433, the expression “appropriate

Government” means,-

(a) In cases where the sentence is for an offence against, or the order
referred to in sub-section (6) is passed under, any law relating to a
matter is passed under, any law relating to a matter to which the
executive power of the Union extends, the Central Government.

(b) In other cases the Government of the State within which the
offender is sentenced or the said order is passed.

Commutation of sentence

433. Power to commute sentence.

The appropriate Government may, without the consent of the person-

sentenced commute-

(a) A sentence of death, for any other punishment provided by the

Indian Penal Code (45 of 1860);
 (b) A sentence of imprisonment for life, for imprisonment for a term
not exceeding fourteen years or for fine;

(c) A sentence of rigorous imprisonment for simple imprisonment for

any term to which that person might have been sentenced, or for
fine;

(d) A sentence of simple imprisonment, for fine.

433A. Restriction on powers of remission or commutation in certain cases.

433A. Restriction on powers of remission or commutation in certain cases.

Notwithstanding anything contained in section 432, where a sentence of

imprisonment for life is imposed on conviction of a person for an offence
for which death is one of the punishment provided by laws or where a
sentence of death imposed on a person has been commuted under section
433 into one of imprisonment for life, such person shall not be released
from prison unless he had served at least fourteen years of imprisonment.

Disposal of property

Legal provisions regarding order for disposal of property at conclusion of

trial under section 29 of the Code of Criminal Procedure, 1973.

Order for disposal of property at conclusion of trial:

As per Section 452 of the Code of Criminal Procedure:

(1) When an inquiry or trial in any criminal Court is concluded, the Court
may make such order as it thinks fit for the disposal, by destruction,
confiscation, or delivery to any person claiming to be entitled to
possession thereof or otherwise, of any property or document
produced before it or in its custody, or regarding which any offence
appears to have been committed, or which has been used for the
commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of any
property to any person claiming to be entitled to the possession
thereof, without any condition or on condition that he executes a bond,
 with or without sureties, to the satisfaction of the Court, engaging to
restore such property to the Court if the order made under sub-section
(1) is modified or set aside on appeal or revision.

(3) A Court of Session may, instead of itself making an order under sub-
section (1), direct the property to be delivered to the Chief Judicial
Magistrate, who shall thereupon deal with it in the manner provided in
Sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and

natural decay, or where a bond has been executed in pursuance of sub-
section (2), an order made under sub-section (1) shall not be carried
out for two months, or when an appeal is presented, until such appeal
has been disposed of.

(5) In this Section, the term “property” includes in the case of property
regarding which an offence appears to have been committed, not only
such property as has been originally in the possession or under the
control of any party, but also any property into or for which the same
may have been converted or exchanged, and anything acquired by
such conversion or exchange, whether immediately or otherwise.

Acquittal

Section 248

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.

Where, in any case under this Chapter, a previous conviction is charged

under the provisions of Sub-Section (7) of section 211 and the accused
does not admit that he has been previously convicted as alleged in the
charge, the Magistrate may, after he has convicted the said accused, take
evidence in respect of the alleged previous conviction, and shall record a
finding thereon; Provided that no such charge shall be read out by the
Magistrate nor shall the accused be asked to plead thereto nor shall the
previous conviction be referred to by the prosecution or in any evidence
adduced by it, unless and until the accused has been convicted under Sub-
Section (2).

Bonds

A bond is an obligation, expressed in writing, to pay a fixed and liquidated

sum on the happening or nonoccurence of a specified condition or event.
The term "bond" includes investment bonds, penal bonds conditioned on
the performance of duties of office, or other obligations undertaken by the
principal obligor in the bond or collateral things to be done by the
principal obligor; and indemnity and fidelity bonds or undertakings to
indemnify the obligee against loss from conduct of the principal. A bond
may be an insurance policy required by a court for the benefit of a trust or
an estate. This policy provides insurance protection against the possibility
of fraud or embezzlement by a trustee or an executor. The will maker may
request in the will that no bond be required.

Bonds may be classified as being either statutory or private. The purpose

and contents of a statutory bond are dictated by statute; a private bond is
one that is not given pursuant to a statutory requirement. A bond is single
if the obligation is to pay a fixed sum of money on a certain day. It is
conditional if liability on the obligation is contingent on the principal's
performance of particular acts, or, conversely, the principal's failure to
perform particular acts. The basic parts of a bond, usually appearing in the
order stated, are: (1) the obligation or promise to pay a specified sum, (2)
the condition, if any, and (3) the testimonium clause, followed by the
signatures.
Legal provisions regarding bond of accused and sureties under section
441 of the Code of Criminal Procedure, 1973.

(1) 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, as the case
may be, 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, as the case may be.

(2) Where any condition is imposed for the release of any person on bail,
the bond shall also contain that condition.

(3) If the case so requires, the bond shall also bind the person released on
bail to appear when called upon at the High Court, Court of Sessions
or other Court to answer the charge.

(4) For the purpose of determining whether the sureties are fit or
sufficient, the Court may accept affidavits in proof of the facts
contained therein relating to the sufficiency or fitness of the sureties,
or, if it considers necessary, may either hold an enquiry itself or cause
an inquiry to be made by a Magistrate subordinate to the Court, as to
such sufficiency or fitness.

A surety bond is essentially a contract and the terms of the surety bond
have to be determined by the language used in the bond itself. The terms
of the surety bond being penal in nature should be very strictly construed.

Fine:

The Courts may impose fine along with or without imprisonment. The
Indian Penal Code mentions the punishment of fine for several offences,
generally with or without imprisonment.

Amount of fine:

According to Section 63, where no sum is expressed to which a fine may

extend, the amount of fine to which the offender is liable is unlimited, but
shall not be excessive.
Sentence of imprisonment for non-payment of fine:

According to Section 64, in every case of an offence punishable with

imprisonment as well as fine, in which the offender is sentenced to a fine,
whether with or without imprisonment, and in every case of an offence
punishable with imprisonment or fine, or with fine only, in which the
offender is sentenced to a fine, it shall be competent to the Court which
sentences such offender to direct by the sentence that, in default of
payment of the fine, the offender shall suffer imprisonment for a certain
term, which imprisonment shall be in excess of any other imprisonment to
which he may have been sentenced or to which he may be liable under a
commutation of a sentence.

Limit to imprisonment if fine imposed is not paid:

Section 65 lays down that the term for which the Court directs the offender
to be imprisoned in default of payment of a fine shall not exceed one-
fourth of the term of imprisonment which is the maximum fixed for the
offence, if the offence be punishable with imprisonment as well as fine.

Description of imprisonment for non-payment of fine:

Section 66 lies down that the imprisonment which the Court imposes in
default of payment of a fine may be of any description to which the
offender might have been sentenced for the offence.

Imprisonment for non-payment of fine when offence punishable with fine

only:

According to Section 67, if the offence be punishable with fine only, the
imprisonment which the Court imposes in default of payment of the fine
shall be simple, and the term for which the Court directs the offender to be
imprisoned, in default of payment of fine, shall not exceed the following
scale,

When the fine shall not exceed fifty rupees – the term of imprisonment
shall not exceed two months;

Termination of imprisonment on payment of fine:

According to Section 68, whenever the fine is paid the imprisonment shall
be terminated forthwith.

According to Section 69, if, before the expiration of the term of

imprisonment fixed in default of payment, such a proportion of the fine be
paid or levied that the term of imprisonment suffered in default of payment
is not less than proportional to the part of the fine still unpaid, the
imprisonment shall terminate.

Illustration:

A is sentenced to a fine of one hundred rupees and to four months’

imprisonment in default of payment. Here, if seventy-five rupees of the
fine be paid or levied before the expiration of one month of the
imprisonment, A will be discharged as soon as the first month has expired.

If seventy five rupees be paid or levied at the time of the expiration of the
first month, or at any later time while A continues in imprisonment, A will
be immediately discharged.

If fifty rupees of the fine be paid or levied before the expiration of two
months of the imprisonment, A will be discharged as soon as the two
months are completed. If fifty rupees be paid or levied at the time of the
expiration of those two months, or at any later time, while A continues in
imprisonment, A will be immediately discharged.

Fine vs. Imprisonment:

It is the general presumption that if the offender passes the imprisonment

in default of fine imposed upon him, such imprisonment shall liberate the
fine. It is wrong presumption. Section 70 says that fine and imprisonment
for default of fine are two different things.

Imprisonment for default of fine shall not liberate the offender from his
liability to pay the full amount of fine imposed upon him. Imprisonment in
default of fine is not a satisfaction for the fine, but it is a punishment for
non-payment or contempt or resistance to the due execution of the
sentence.

Such fine shall be recoverable from the offender within six years from the
date of sentence passed by the trial Court or during imprisonment. Fine
may be recovered from the property of the offender. Death of the offender
shall not discharge property from liability.

Imprisonment:

The Fourth kind of punishment is “Imprisonment”. It is of two

descriptions, viz.

(i) Rigorous, i.e., with hard labour; and

(ii) Simple.

(i) Rigorous Imprisonment i.e. with Hard Labour:

There are certain offences defined in the Indian Penal Code, for which
rigorous imprisonment may be imposed by the Courts. Examples:
House- trespass under Section 449 of IPC; fabricating false evidence
with intent to procure conviction of an offence which is capital by the
Code (Sec. 194); etc.

For such offences, rigorous imprisonment may be imposed. In

rigorous imprisonment, the convicted person is put to do hard labour
such as digging earth, cutting stones, agriculture, grinding corn,
drawing water, carpentry, etc. The Supreme Court suggested that the
offenders imposed hard labour should be paid minimum wages.

The trial Court, while disposing Bombay Blast Case (2007), sentenced
Sanjay Putt, a Bollywood Hero, for rigorous imprisonment for a
period of six years. Until the Supreme Court gave the Bail, Sanjay
Dutt did carpentry work for 30 days and earned Rs. 39/- during that
period.

While disposing the case Sunil Batra v. Delhi Administration

(AIR 1980 SC 1675), the Supreme Court observed: “Hard labour
in Sec. 53 has to receive a humane meaning.
 A girl student or a male weakling sentenced to rigorous
imprisonment may not be forced to break stones for nine hours a
day. The prisoner cannot demand soft jobs but may reasonably be
assigned congenial jobs. Sense and sympathy are not enemies of
penal asylums.”

(ii) Simple imprisonment:

This punishment is imposed for the lighter offences. Examples:

public servant unlawfully engaging in trade or unlawfully buying
or bidding for property (Sections 168-169); absconding to avoid
service of summons or other proceedings, or not attending in
obedience to an order from a public servant (Sections 172-174);
to obstruct traffic or cause public nuisance; eve- teasing, drunken
brawls, etc.; refusing oath when duly required to take oath by a
public servant (Section 178); wrongful restraint (Sec. 341);
defamation (Sec. 500) etc.

Solitary Confinement:

Section 73 of the Code empowers the Courts to impose solitary

confinement to certain persons and in relation to certain offences. This
punishment is also part of the imprisonment.

A harsh and hardened convict may be confined in a separate cell to correct

his conduct. He is put separately without intercourse with other prisoners.
All connections are severed with other world.

The object of this punishment is to reform the hardened and habitual

offender and in order to experience him with loneliness. There are certain
restrictions in imposing solitary confinement. They are:

(a) Solitary confinement should not exceed three months of the

whole term of imprisonment.
 (b) It cannot be awarded where imprisonment is not part of the
substantive sentence.

(c) It cannot be awarded where imprisonment is in lieu of fine.

(d) It cannot also be awarded for the whole term of imprisonment.

Further according to Section 73, the following scale shall be
adhered,

(i) Time not exceeding one month if the term of imprisonment

shall not exceed six months;

(ii) A time not exceeding two months if the term of

imprisonment shall exceed six months and shall not exceed
one year;

(iii) A time not exceeding three months if the term of

imprisonment shall exceed one year.

In several European countries, including Great Britain, this punishment

was repealed.

Section 74 limits the solitary confinement. If it is imposed for a long time,

it adversely affects on human beings and creates mental derangement.

This Section says that solitary confinement shall in no case exceed

fourteen days at a time with intervals between the periods of solitary
confinement of not less duration than such periods, and when the
imprisonment awarded shall exceed three months, such confinement shall
not exceed seven days in any one month of the whole imprisonment
awarded, with intervals between the periods of solitary confinement of not
less duration than such periods.

Injunction

A civil injunction is a court order that requires a person to do or stop

doing a specific action, according to the Cornell University Law
School. Some civil injunctions require that one individual not have contact
with another, and these are referred to as "restraining orders."

Some injunctions can be temporary, like temporary restraining orders and

preliminary injunctions, and are used to maintain the status quo until the
court reaches an official verdict. Civil injunctions are used in order to
prevent possible injustice, and are the result of threatened or past violence,
according to the Cornell University Law School. There are most often two
types: preliminary injunctions and temporary restraining orders, or TROs.
The purpose of both is to either maintain the status quo or to prevent the
accused from performing the complained-of action until the full judicial
proceedings can happen.

There are four reasons for which civil injunctions that can be filed:
domestic violence, sexual violence, dating violence and repeat violence.
Each has different requirements that must be met and different
punishments for violating the injunction, but most of the exact details and
specifications come down to the court's ruling. An individual who fails to
follow an injunction can be punished for contempt of court.

There are several categories that determine the way in which the court
views the case, but mostly it comes down to the immediacy in which the
plaintiff needs the injunction. An injunction is an equity remedy and can
only be issued in cases of in-personam jurisdiction.

Probation

Law of Probation In India

Section S.562 of the Code if Criminal Procedure, 1898, was the earliest
provision to have dealt with probation. After amendment in 1974 it stands
as S.360 of The Code of Criminal Procedure, 1974. It reads as follows:-
When any person not under twenty-one years of age is convicted of an
offence punishable with fine only or with imprisonment fro a term of
seven years or less, or when any person under twenty-one years of age or
any woman is convicted of an offence not punishable with death or
imprisonment for life, and no previous conviction is proved against the
offender, if it appears to the Court before which he is convicted, regard
being had to the age, character or antecedents of the offender, and to the
circumstances in which the offence was committed, that it is expedient that
the offender should be released on probation of good conduct, the Court
may, instead of sentencing him at once to any punishment, direct that he
be released on his entering into a bond, with or without sureties, to appear
and receive sentence when called upon during such period (not exceeding
three years) as the Court may direct and in the meantime to keep the peace
and be of good behaviour.

S.361 makes it mandatory for the judge to declare the reasons for not
awarding the benefit of probation. The object of probation has been laid
down in the judgment of Justice Horwill in In re B. Titus : S. 562 is
intended to be used to prevent young persons from being committed to jail,
where they may associate with hardened criminals, who may lead them
further along the path of crime, and to help even men of mature years who
for the first time may have committed crimes through ignorance or
inadvertence or the bad influence of others and who, but for such lapses,
might be expected to make good citizens. In such cases, a term of
imprisonment may have the very opposite effect to that for which it was
intended. Such persons would be sufficiently punished by the shame of
having committed a crime and by the mental agony and disgrace that a
trial in a criminal court would involve.

In 1958 the Legislature enacted the Probation of Offenders Act, which lays
down for probation officers to be appointed who would be responsible to
give a pre-sentence report to the magistrate and also supervise the accused
during the period of his probation. Both the Act and S.360 of the Code
exclude the application of the Code where the Act is applied. The Code
also gives way to state legislation wherever they have been enacted.

Section 4 of the Act provides for probation.

S.4 Power of Court to release certain offenders on probation of good

conduct
(1) When any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the Court by which the
person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence and the
character of the offender, it is expedient to release him on probation of
good conduct, then, notwithstanding anything contained in any other law
for the time being in force, the court may, instead of sentencing him at
once to any punishment direct that he be released on his entering into a
bond, with or without sureties, to appear and receive sentence when called
upon during such period, not exceeding three years, as the court may
direct, and in the meantime to keep the peace and be of good behaviour.

S. 6 of the same Act lays special onus on the judge to give reasons as to
why probation is not awarded for a person below 21 years of age. The
Court is also to call for a report from the probation officer before deciding
to not grant probation.

The provision under the Code and the Act are similar, as they share a
common intent, that, punishment ought not to be merely the prevention of
offences but also the reformation of the offender. Punishment would
indeed be a greater evil if its effect in a given case is likely to result in
hardening the offender into repetition of the crime with the possibility of
irreparable injury to the complainant instead of improving the offender.

Yet there are a few differences, which have been enumerated below. S.4 of
Probation of Offenders Act S.360 of The Cr.P.C.

Any person may be released on probation, if he has not committed an

offence punishable with death or imprisonment for life.(No distinction is
made on ground of sex or age) Any person not under 21 years of age, if
convicted of an offence punishable with imprisonment for not more than 7
years or when any person under 21 years of age or any woman is convicted
of an offence not punishable with death or imprisonment for life may be
released on probation. It is not necessary that the person must be a first
offender. This section applies only when no previous conviction is proved
against the offender.

Any magistrate may pass an order under this section. Magistrate of the
third class or of the second class not specifically empowered by the state
government had to submit the proceeding to Magistrates of the first class
or Sub-Divisional magistrates. Supervision order may be passed directing
that the offender shall remain under the supervision of a Probation Officer.
No such provision.

Besides these two enactments, the Juvenile Justice (Care and Protection of
Children) Act, 2000 also provides for the release of children who have
committed offences to be released on probation of good conduct and
placed under the care of any parent, guardian or other fit person, on such
parent, guardian or other fit person executing a bond, with or without
surety, or any fit institution as the Board may require, for the good
behaviour and well-being of the juvenile for any period not exceeding
three years.

Parole

Parole is a conditional release of offenders under supervision after a

custodial sentence. A related term is Probation in which the offender is
given a conditional release under supervision before a custodial sentence.

Parole is the conditional release of an offender who has already served a

portion of his sentence in a correctional institution. While on parole, the
released prisoner remains in the custody and under the supervision of the
paroling authority. The period of parole may be as long as the time the
prisoner would otherwise have served in the institution or it may be
terminated earlier. At any point during this period, parole may be revoked
for a violation of parole regulations and the violator must return to the
institution to serve the remainder of his sentence in confinement. Walter
Croflon advocated reform of the individual as a purpose of imprisonment
and moreover urged that "Tickets of leave" be given to those who showed
a change in attitude. Thus, what is now called parole was from its start to
the concepts of offender reformation and indeterminacy in sentencing.
Parole ideally includes treatment in the form of supervision, guidance and
assistance. It has been rightly held that all released prisoners can benefit
from the guidance of parole officers, but the benefit that society itself
would derive if all prisoners were kept under close surveillance during the
period of adjustment immediately following incarceration, is also
considerable. A prisoner who has spent a decade inside has lost touch with
the everyday world of transport, shopping and renting, but has gained a set
of different everyday living skills relevant to prison life that needs to be
unlearned [2]. Parole gives a chance of reformation to the prisoner. It can
have a positive impact towards changing the prisoner’s attitude to what
they have done and make them come to accept that their behavior was
wrong.

Objectives of Parole

Parole had its root in the Positivist School. The word ‘Parole’ comes from
the French word “je donne ma parole” meaning ‘I give my word’, while
the dictionary definition is ‘word of honour. The term ‘parole’ was first
coined in a correctional context in 1847 by Samvel G. Howe, a Boston
penal reformer. The Classical School of thought opined that people are
free to choose their own conduct. While committing any crime, an
offender always calculates his gain, his pleasure, at the cost of other’s
pain. So he must be punished. But the Positivist school argued that it is the
circumstance which forces anybody to commit crime. So he must be
rehabilitated. From there the thought of parole arose. It provides a second
chance to the prisoner to rehabilitate himself. The offender might have
committed an offence, but it is not desirable that he always be labeled and
must not be given any chance to rehabilitate himself. Its objectives are
twofold: the rehabilitation of the offender and the protection of society. It
is a means of helping the inmate to become a law-abiding citizen, while at
the same time ensuring that he does not misbehave or return to crime. The
paroling function may be important as a "safety valve" to help control the
levels of prison populations in relation to capacities and thus to avert the
dangers and costs of over-crowding. Parole is a correctional method to
bring about the reformation in the characteristics of such persons. If the
delinquent proves, he can mend his ways and shall refrain from such
criminal activities which are detrimental to community and if he shows an
overall improvement in his character and conduct, the purpose of this
correctional method is fulfilled.

Parole in India, Selection and Supervision of Offenders Paroled

In India, the grant of Parole is largely governed by the rules made under
the Prison Act, 1894 and Prisoner Act, 1900. Each of the States has its
own parole rules, which have minor variations with each other . There are
two types of parole- custody and regular. The custody parole is granted in
emergency circumstances like death in the family, serious illness or
marriage in the family Regular Parole is allowed for a maximum period of
one month, except in special circumstances, to convicts who have served
at least one year in prison. It is granted on certain grounds [4] such as:
Serious Illness of a family member Accident or Death of a family member
Marriage of a member of the family Delivery of Child by wife of the
convict Maintain family or social ties Serious damage to life or property of
the family of convict by natural calamities Pursue filing of a Special Leave
Petition. Certain categories of convicts are of convicts are not eligible for
being released on parole like prisoners involved in offences against the
State, or threats to national security, non-citizens of India etc. People
convicted of murder and rape of children or multiple murders etc. are also
exempted except at the discretion of the granting authority. Selection for
parole is based on two separate considerations. First one, more or less
arbitrary because it is usually fixed by statute. The second entirely
discretionary involving a decision and a calculated risk by the parole
board. The First consideration is the offender's parole eligibility, the
second his suitability for parole. To these considerations which are
explicit, there may be added others which are no less decisive because they
are less tangible. Parole cannot be granted to every type of offender. The
purpose of parole is to bring about a change in the behavior of the person
sentenced and also at extraordinary circumstances such as serious illness
or death of near relatives, death of the kith and kin and so forth. The
offender paroled has to be kept under close surveillance by the police so
that he does not relapse into the commission of crime. Even though the
paroled offender is not in physical confinement, for all practical purposes
he is a person sentenced and every of his movement of him has to be
closely monitored so that his associations and his activities which
perpetrate crime can be mitigated.

Parole Regulations

1. The paroled person should hold the permit always and should produce
on being tendered by any police officer or magistrate or any other
competent authority. 2) He shall not associate with notorious bad
characters, ruffians and anti-social elements. 3) He shall not indulge in
coercing any of the witnesses or complainant to adduce evidence in
his favor. 4) He shall report any charge in the address or his
movement and leaving the locality or jurisdiction which is specifically
prescribed in his behalf. 5) He shall also obey all laws and public
ordinances. 6) He shall not indulge in alcoholism, intoxicating
beverages and narcotics.

Conditional Release

Section 123 in The Code Of Criminal Procedure / Cr.P.C., 1973

Power to release persons imprisoned for failing to give security.

(1) Whenever 1 the District Magistrate in the case of an order passed by

an Executive Magistrate under section 117, or the Chief Judicial
Magistrate in any other case] is of opinion that any person imprisoned
for failing to give security under this Chapter may be released without,
hazard to the community or to any other person, he may order such
person to be discharged.
(2) Whenever any person has been imprisoned for failing to give security
under this Chapter, the High Court or Court of Session, or, where the
order was made by any other Court, the 1 District Magistrate, in the
case of an order passed by an Executive Magistrate under section 117,
or the Chief Judicial Magistrate in any other case, may make an order
reducing the amount of the security or the number of sureties or the
time for which security has been required.

(3) An order under sub- section (1) may direct the discharge of such
person either without conditions or upon any conditions which such
person accepts: Provided that any condition imposed shall cease to be
operative when the period for which such person was ordered to give
security has expired.

(4) The State Government may prescribe the conditions upon which a
conditional discharge may be made.

(5) If any condition upon which any person has been discharged is, in the
opinion of the 1 District Magistrate, in the case of an order passed by
an Executive Magistrate under section 117, or the Chief Judicial
Magistrate in any other case] by whom the order of discharge was
made or of his successor, not fulfilled, he may cancel the same.

(6) When a conditional order of discharge has been cancelled under sub-
section (5), such person may be arrested by any police officer without
warrant, and shall thereupon be produced before the 1 District
Magistrate, in the case of an order passed by an Executive Magistrate
under section 117, or the Chief Judicial Magistrate in any other case].

(7) such person gives security in accordance with the terms of the original
order for the unexpired, portion of the term for which he was in the
first instance committed or ordered to be detained (such portion being
deemed to be a period equal to the period between the date of the
breach of the conditions of discharge and the date on which, except
for such conditional discharge, he would have been entitled to
 release), the 1 District Magistrate, in the case of an order passed by an
Executive Magistrate under section 117, or the Chief Judicial
Magistrate in any other case] may remand such person to prison to
undergo such unexpired portion.

(8) A person remanded to prison under sub- section (7) shall, Subject to
the provisions of section 122, be released at any time on giving
security in accordance with the terms of the original order for the
unexpired portion aforesaid to the Court or Magistrate by whom such
order was made, or to its or his successor.

(9) The High Court or Court of Session may at any time, for sufficient
reasons to be recorded in writing, cancel any bond for keeping the
peace or for good behaviour executed under this Chapter by any order
made by and the 1 District Magistrate, in the case of an order passed
by an Executive Magistrate under section 117, or the Chief Judicial
Magistrate in any other case] may make such cancellation where such
bond was executed under his order or under the order of: any other
Court in his district.

(10) Any surety for the peaceable conduct or good behaviour of another
person ordered to execute a bond under this Chapter may at any time
apply to the Court making such order to cancel the bond and on such
application being made, the Court shall issue a summons or warrant,
as it thinks fit, requiring the person for whom such surety is bound to
appear or to be brought before it.

Legislative and judicial role

The functions of legislatures are not the same in every country. The form
of government in each state determine their function. The nature and
extent of role a legislature plays under a monarchy or aristocracy is
different from that of a legislature in a democracy.
The legislature plays very significant role in a Parliamentary System of
government under such a system the legislature is superior to the
executive. The executive remains responsible and answerable to the
legislature for all its actions. Continuing in power on the part of the
executive depends on the satisfaction and support of the legislature.

Although the organisation, nature and functions of the legislatures differ

from country to country, their main functions are more or less the same.
They may be classified as legislative, regulatory, financial, deliberative,
judicial, constituent and electoral functions.

1. Legislative functions

Law making is the foremost function of a legislature as it is the direct

source of legislation. Law is regarded as the expression or the will of the
people. The laws reflect the changing conditions of society and the new
social environment. The policies of the government are put to executive
though the laws made by legislature. The laws have to adjust themselves to
the ever changing requirements of the society. Therefore one of the major
functions of the legislature besides making law, amending and repealing
them wherever they become obsolete or outdated. Laws are enacted
according to prescribed procedure of the constitution. The law making
powers of the legislatures are absolute. They are limited by the provisions
of the constitution.

2. Regulatory Functions

Under Parliamentary System of government the legislature exercises its

immediate and direct control over the executive. The executive is under
responsible and answerable to the legislature for all its actions. The
legislature exercises its control by a) asking questions to the ministers to
elicit important information relating to matters of administration and
matters of public importance. Secondly b) it, can move adjournment
motions or raise debates to point out specific lapses of the government and
most importantly c) it can move no confidence motion. Though such a
motion it can express its lack of confidence in the government, which if
passed by the legislature forces the party in power to resign. These powers
of the legislature regulate the working of the government to a large extent.

3. Financial Powers

The legislature has very important powers is the field of finance. It acts as
the guardian of national purse. It regulates the "income and expenditure of
the government in respect of its various projects, administrative and
welfare. People's money must be controlled and spent under the
supervision and control of their representatives to prevent its misuse and
wasteful expenditure. The theory no taxation without representation
recognises the supremacy of the legislature, which is the fund raising and
fund granting authority. It is a fundamental principle, recognised in all
civilized country, that no tax shall be collected or expenditure be made
without the approval of the legislature . All proposals for financial
legislation are routed through the popular chamber.

4. Deliberative Functions

The Legislature is a deliberative body, a forum where many persons

represent numerous interests, various points of view of different sections
of the community. This is a body which facilitates determination of
policies and legislation through a process of debate and discussion. This
discussion provides with opportunities to each member not only to present
the view and perception of his party but also permits to mould his own
views in light of the discussion made in the House Over and above the
various viewpoints presented in the House contribute to the growth of
political consciousness of the people in general and educate the members
of executive to find out the solutions to various problems in particular.
Through this power the legislative acts as a link between the public and the
government.

5. Judicial Function

The legislature also exercises some judicial function. Certain countries

have entrusted to their legislatures the function of trying high
constitutional authorities like the head of the executive, members of
judicially and other constitutional bodies through the motion of
impeachment. In India the President, the judges of Supreme Court, the
members of U.P.S.C, the Comptroller and Auditor General can be
impeached by the Parliament after fulfilling certain constitutional
formalities. In England the Upper House of the Parliament Acts as the
highest court of appeal. Also in United States the President can be
impeached by the Senate. Very often the legislatures appoint commissions
of inquiry relating to trade, commerce, agriculture, industry etc.

6. Constitutional Functions

The legislatures also have constitutional functions to perform. Most of the

legislatures have been entrusted with the powers to amend the constitution.
In India all amendment proposals can be initiated only in the legislature.
So is the case with Britain and U.S.A. In all such cases the legislature
exercises its constituent powers under a number of procedural restrictions.

7. Electoral Functions

Many of the legislatures participate in electoral functions. The Indian

Parliament takes part in the election of the President and Vice-President of
India. It also elects some its members to various committees of the House.
It elects its presiding and deputy presiding officers.

Question

1. What is an Appeal?

2. What are the criteria for Suspension of sentence ?

Reference for Criminal Procedure and Evidence

1. Gaur, K. D. (2013). Criminal law: Cases and materials (7th ed.).

Gurgaon, Haryana, India: LexisNexis.
2. Hall, J. (1960). General principles of criminal law (2nd ed.).
Indianapolis: Bobbs- Merrill.

3. Nigam, R. C. (1965). Law of crimes in India. Asia Pub. House.

4. Thakore, D. (2011). Ratanlal & Dhirajlal’s the Indian Penal Code (Act
XLV of 1860) (33rd ed.). Gurgaon, Haryana, India: LexisNexis
Butterworths Wadhwa Nagpur.

5. Vibhute, K. I. (2012). P. S. A. Pillai’s criminal law (11th ed.). Lexis

Nexis.

6. Legal Texts The Indian Evidence Act, 1860 Code of Criminal

Procedure, 1973