Cr. P.

C Synopsis
Unit -II
1. Magisterial Powers to take cognizance (Sec.190 to 199)
Sections 190 to 199 sets out the methods by which, subject to limitation,
various criminal courts are entitled to take cognizance of offences. Section
190 provides for cognizance of offence by the magistrate and section 193
cognizance of offence by the Court of Session. And sections 195 to 199
are exceptions to this general rule or limitations on the power to take
cognizance.
The Cognizance of offence is the first and foremost step towards trial. The
literal meaning of the word cognizance is “knowledge or notice”.
Therefore taking cognizance of offence means “taking judicial notice or
becoming aware of the alleged commission of offence”.

Cognizance of offences by Magistrates (Section 190)

Any Judicial Magistrate First Class, or any Judicial Magistrate Second
Class, may take cognizance of any offence, upon receiving a complaint of
facts which constitute such offence, upon a police report of such facts,
upon information received from any person other than a police officer, or
upon his own knowledge, that such offence has been committed.
In Jagdish Ram vs State of Rajasthan 2004 Cr.L.J. 5008 (SC) it was
held that at the stage of taking cognizance, the Magistrate has only to
decide whether sufficient ground exists or not for further proceeding.
In State of H.P. vs Naval Thakur 1991 Cr.L.J. 1377 (HP) it was held
that before taking cognizance of an offence the Magistrate has to see that
the complaint constitutes an offence. He has to apply his mind whether
there is sufficient cause or ground to take cognizance of the offence.
According to Section 192 any Chief Judicial Magistrate may, after taking
cognizance of an offence, make over the case for inquiry or trial to any
competent Magistrate subordinate to him and any Magistrate of the first
class empowered in this behalf by the Chief Judicial Magistrate may, after
taking cognizance of an offence, make over the case for inquiry or trial to
such other competent Magistrate as the Chief Judicial Magistrate may, by
general or special order, specify.
It was held in Gopal Das vs State of Assam AIR 1961 SC 936 that a
Magistrate can transfer only those cases of which he has taken cognizance
under section 190. He may transfer at any stage.
1. Cognizance of offences by Court of Session ( Section 193)
Except as otherwise expressly provided by this Code or by any other law
for the time being in force, no Court of Session shall take cognizance of
any offence as a court of original jurisdiction unless the case has been
committed to it by a Magistrate under this Code.
It was held in Ravishankar Misra vs State of U.P 1991 Cr.L.J 213
(All) that where the Sessions Court receives orders from the Supreme
Court to take cognizance of the offence without the committal proceedings
will be valid.
Section 194 sects out that an Additional Sessions Judge or Assistant
Sessions Judge shall try such cases as the Sessions Judge of the division
may, by general or special order, make over to him for trial or as the High
Court may, by special order, direct him to try.

Limitations on the power to take cognizance (Sections 195 to 199)

1. Prosecution for contempt of lawful authority of public servants.
Section 195(1)(a)(i)(ii)(iii)
No Court shall take cognizance of any offence punishable under sections
172 to 188 of the Indian Penal Code or of any abetment of, or attempt to
commit, such offence, or of any criminal conspiracy to commit such
offence, except on the complaint in writing of the public servant concerned
or of some other public servant to whom he is administratively
subordinate.
It was held in Govind Mehta vs State of Bihar AIR 1971 SC 1708 that
section 195 is in fact a limitation on the unfettered powers of a Magistrate
to take cognizance under section 190 of the Code.
2. Prosecution for offences against public justice [Section 195(1)(b)(i)
& (iii)]
No Court shall take cognizance of any offence punishable under any of the
following sections of the Indian Penal Code namely, sections 193 to 196,
199, 200, 205 to 211 and 228, when such offence is alleged to have been
committed in, or of any abetment or attempt to commit such offence or in
relation to, any proceeding in any Court, except on the complaint in
writing of that Court, or of some other Court to which that Court is
subordinate.
In Mahadev Bapuji Mahajan vs State of Maharashtra it was held that
the offence of forging documents was committed before start of
proceedings before Revenue Court. It was held that the absence of
complaint by the Revenue Court was not a bar for taking cognizance by
the Criminal Court in respect of such offences.
3. Prosecution for offences relating documents given in evidence.
(Section 195 (1) (b) (ii) and (iii)
No Court shall take cognizance of any offence described in section 463, or
punishable under section 471, section 475 or section 476, of the Indian
Penal Code, when such offence is alleged to have been committed in
respect of a document produced or given in evidence in a proceeding in
any Court, except on the complaint in writing of that court or officer of the
court in writing or some other court to which the court is subordinate.
In Iqbal Singh Marwah vs Meenakshi Marwah 2005 Cr.L.J.
2161(SC) it was held that for attracting application of section 195(1)(b)(ii)
the offences enumerated in the section must be committed during when the
document was in custodia legis, means, document was produced or given
in evidence in a proceeding in any court. It must be in legal custody.
In Harbans Singh vs State of Punjab 1986 Cr. L.J. 1834 (P&H) it
was held that this section does not apply to a case in which a document is
fabricated prior to its production or given in evidence.
Section 195A sets out that whoever threatens another with any injury to
his person, reputation or property with intent to cause that person to give
false evidence shall be punished with imprisonment of either description
for a term which may extend to seven years, or with fine, or with both.
And if innocent person is convicted and sentenced in consequence of such
false evidence, with death or imprisonment for more than seven years, the
person who threatens shall be punished with the same punishment and
sentence in the same manner.
Section 195 (2) Where a complaint has been made by a public servant
under clause (a) of sub- section (1) any authority to which he is
administratively subordinate may order the withdrawal of the complaint
and send a copy of such order to the Court and upon its receipt by the
Court, no further proceedings shall be taken on the complaint.
4. Prosecution for offences against State [Section 196(1)]
No Court shall take cognizance of any offence punishable under Chapter
VI or under section 153A, Section 295 A or section 505 of the Indian
Penal Code or criminal conspiracy to commit such offence or any such
abetment, except with the previous sanction of the Central Government or
of the State Government.
In Rishbud H.N. vs State of Delhi AIR 1955 SC 196 it was held that
in the absence of sanction prosecution under this section is illegal.
Section 196(1-A) No Court shall take cognizance of any offence
punishable under section 153B or sub- section (2) or sub-section (3) of
section 505 of the Indian Penal Code or a criminal conspiracy to commit
such offence, except with the previous sanction of the Central Government
or of the State Government or of the District Magistrate.
 5. Prosecution for the offence of Criminal conspiracy (Section 196(2)
&(3))
No Court shall take cognizance of the offence of any criminal conspiracy
punishable under section 120B of the Indian Penal code, other than a
criminal conspiracy to commit offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or
upwards, unless the State Government or the District Magistrate has
consented in writing to the initiation of the proceedings.
6. Prosecution of the Judges and public servants.[Sec.197(1)]
When any person who is or was a Judge or Magistrate or a public servant
not removable from his office by or with the sanction of the Government is
accused of any offence alleged to have been committed by him while
acting or purporting to act in the discharge of his official duty, no Court
shall take cognizance of such offence except with the previous sanction of
the Central Government or the State Government, as the case may be, in
the case of a person who is employed in connection with the affairs of the
Union, of the Central Government or in the case of a person who is
employed, in connection with the affairs of a State, of the State
Government:
In State of Maharashtra vs B.K. Subbarao 1993 Cr.L.J 2984 (Bom) it
was held that the simple test to ascertain applicability of section 197 is that
whether the act with which accused is charged would have been possible
but for his official position.
7. Prosecution of members of armed forces[Sec.197(2)& (3)]
No Court shall take cognizance of any offence alleged to have been
committed by any member of the Armed Forces of the Union while acting
or purporting to act in the discharge of his official duty, except with the
previous sanction of the Central Government and no court shall take
cognizance of any offence, alleged to have been committed by any
member of the Forces charged with the maintenance of public order in a
State while acting or purporting to act in the discharge of his official duty
during the period while a Proclamation issued under clause (1) of article
356 of the Constitution was in force therein, except with the previous
sanction of the Central Government.
8. Prosecution for offences against marriage ( Sec.198)
No Court shall take cognizance of an offence punishable under Chapter
XX of the Indian Penal Code except upon a complaint made by some
person aggrieved by the offence. Provided that where such person is under
the age of eighteen years or is an idiot or a lunatic, or is from sickness or
infirmity unable to make a complaint, or is a woman who, according to the
local customs and manners, ought not to be compelled to appear in public,
some other person may, with the leave of the Court, make a complaint on
his or her behalf;
Where such person is the husband and he is serving in any of the Armed
Forces of the Union and is precluded him from obtaining leave of absence
to enable him to make a complaint in person, some other person authorised
by the husband in accordance with the provisions of sub- section (4) may
make a complaint on his behalf.
Where the person aggrieved by an offence punishable under section 494
and 495 is the wife, complaint may be made on her behalf by her father,
mother, brother, sister, son or daughter or by her father's or mother's
brother or sister, or, with the leave of the Court, by any other person
related to her by blood, marriage or adoption.
Provided that in the absence of the husband, some person who had care of
the woman on his behalf at the time when such offence was committed
may, with the leave of the Court, make a complaint on his behalf.
When in any case the complaint is sought to be made on behalf of a person
under the age of eighteen years or of a lunatic by a person and the Court is
satisfied that there is a guardian so appointed or declared, the Court shall,
before granting the application for leave, cause notice to be given to such
guardian and give him a reasonable opportunity of being heard.
No Court shall take cognizance of an offence under section 376 of the
Indian Penal Code, where such offence consists of sexual intercourse the a
man with his own wife, the wife being under fifteen years of age, if more
than one year has elapsed from the date of the commission of the offence.
The provisions of this section apply to the abetment of, or attempt to
commit, an offence as they apply to the offence.
In U.P. Madhavan Vydiar vs Ajith Simhan1994 Cr.L.J. 1811 (Ker) it
was held that the aggrieved person under 198(2) is not restricted to
spouses offences for offences of bigamy. Even a descendant or a parent of
the offender can complain. Thus a son can prosecute his father for bigamy.
It was held in Ashwin vs State of Maharashtra AIR 1967 SC 983
where after filing complaint under section 493 and 496, the wife dies, her
mother can be substituted to carry on the prosecution.
9. Prosecution for defamation ( Sec.199)
No Court shall take cognizance of an offence punishable under Chapter
XXI of the Indian Penal Code except upon a complaint made by some
person aggrieved by the offence.
Provided that where such person is under the age of eighteen years, or is
an idiot or a lunatic, or is from sickness or infirmity unable to make a
complaint, or is a woman who, according to the local customs and
manners, ought not to be compelled to appear in public, some other person
may, with the leave of the Court make a complaint on his or her behalf.
According to Section 199 (2) when any offence falling under Chapter
XXI of the Indian Penal Code is alleged to have been committed against a
person who at the time of such commission, is the President of India, the
Vice- President of India, the Governor of a State, the Administrator of a
Union territory or a Minister of the Union or of a State or of a Union
territory, or any other public servant employed in connection with the
affairs of the Union or of a State in respect of his conduct in the discharge
of his public functions a Court of Session may take cognizance of such
offence, without the case being committed to it, upon a complaint in
writing made by the Public Prosecutor. Every complaint referred to in sub-
section (2) shall set forth the facts which constitute the offence alleged, the
nature of such offence and such other particulars as are reasonably
sufficient to give notice to the accused of the offence alleged to have been
committed by him.
No complaint under sub- section (2) shall be made by the Public
Prosecutor except with the previous sanction-
(a) of the State Government, in the case of a person who is or has been the
Governor of that State or a Minister of that Government;
(b) of the State Government, in the case of any other public servant
employed in connection with the affairs of the State;
(c) of the Central Government, in any other case.
No Court of Session shall take cognizance of an offence under sub- section
(2) unless the complaint is made within six months from the date on which
the offence is alleged to have been committed.

2. Commencement of Proceedings ( Section 204 to 210)

The section 200 to 203 deals with the complaint to magistrate. Under
Sec.200 complaint is made to magistrate, for examination of the
complainant to see whether the complaint is justifiable. Sec. 201 provides
that if the magistrate is not competent to take cognizance return the
complaint for presentation in proper court. Section 202 provides for
Postponement of issue of process. Any Magistrate, on receipt of a
complaint of an offence of which he is authorised to take cognizance, may,
if he thinks fit, postpone the issue of process against the accused, and
either inquire into the case himself or direct an investigation to be made by
a police officer, for the purpose of deciding whether or not there is
sufficient ground for proceeding: Complaint may be dismissed under
Sec.203 if the Magistrate comes to the opinion that there is no sufficient
ground.
In Gurudas Balakrishna vs Chief Judicial Magistrate 1994 Cr.L.J.
444( Mah) the Magistrate did not record the statement of complainant for
verification for several months. The court ordered to record evidence
within a week.
In Rajendra Singh vs State of Bihar 1989 Cr.L.j. 2277(Pat) the court
acquitted the accused on the ground that it had no jurisdiction to take
cognizance of the complaint. It was held that the order of acquittal was
illegal because the court ought to have returned the complaint.
In Balraj Khanna vs Moti Ram 1971 SC 1389 it was held that the
function of the Magistrate holding a preliminary inquiry is only to be
satisfied that a prima facie case is made out against the accused on the
material placed before him by the complainant. The scope of inquiry under
this section is extremely limited only to ascertain the truth or falsehood of
allegations made in the complaint.
The proceedings will be commenced under Section 204 by issue of process
if in the opinion of a Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding, and the case appears to be-
(a) a summons-case, he shall issue his summons for the attendance of the
accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons,
for causing the accused to be brought or to appear at a certain time before
such Magistrate or some other Magistrate having jurisdiction. No
summons or warrant shall be issued against the accused until a list of the
prosecution witnesses has been filed. In a proceeding instituted upon a
complaint made in writing every summons or warrant issued shall be
accompanied by a copy of such complaint. When by law any process- fees
or other fees are payable, no process shall be issued until the fees are paid
and, if fees are not paid, the Magistrate may dismiss the complaint.
Under Section 205 the Magistrate may dispense with personal attendance
of accused, if he sees reason so to do, dispense with the personal
attendance of the accused and permit him to appear by his pleader. But the
Magistrate inquiring into or trying the case may, in his discretion, at any
stage of the proceedings, direct the personal attendance of the accused,
and, if necessary, enforce such attendance.
Section 206 deals with Special summons in cases of petty offence. If, in
the opinion of a Magistrate taking cognizance of a petty offence, for
reasons to be recorded in writing issue summons to the accused requiring
him to appear in person or by pleader on a specified date, or if he desires
to plead guilty to transmit, by post or by messenger to the Magistrate, the
said plea in writing and the amount of fine specified in the summons or to
plead guilty to the charge through pleader. Provided that the amount of the
fine specified in such summons shall not exceed one hundred rupees. Here
“Petty offence" means any offence punishable only with fine not
exceeding one thousand rupees.
Section 207 mandates the supply to the accused of copy of police report
and other documents in a case instituted on a police report. The Magistrate
shall without delay furnish to the accused, free of cost, a copy of the police
report, the first information report, the statements recorded under section
161, the confessions and statements, if any recorded under section 164,
police report forwarded under section 173.
Section 208 provides for supply of copies of statements and documents to
accused in other cases triable by Court of Session. Where, in a case
instituted otherwise than on a police report, it appears to the Magistrate
issuing process under section 204 that the offence is triable exclusively by
the Court of Session, the Magistrate shall without delay furnish to the
accused, free of cost, a copy of the statements recorded under section 200
or section 202, of all persons examined by the Magistrate, the statements
and confessions, if any, recorded under section 161 or section 164, any
documents produced before the Magistrate on which the prosecution
proposes to rely.
Section 209 lays down the Commitment of case to Court of Session when
offence is triable exclusively by it. When in a case instituted on a police
report or otherwise, the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is triable
exclusively by the Court of Session, he shall commit, after complying with
the provisions of section 207 or section 208, as the case may be, the case
to the Court of Session, and subject to the provisions of this Code relating
to bail, remand the accused to custody until such commitment has been
made, remand the accused to custody during, and until the conclusion of,
the trial, send to that Court the record of the case and the documents and
articles, if any, which are to be produced in evidence and notify the Public
Prosecutor of the commitment of the case to the Court of Session.
Section 210 deals with the Procedure to be followed when there is a
complaint case and police investigation in respect of the same offence. In
such a case the Magistrate shall stay the proceedings of such inquiry or
trial and call for a report on the matter from the police officer conducting
the investigation.
 2. Dismissal of Complaints (Sec. 203)
Whenever a complaint is filed before the magistrate under section
200, after considering the statement on oath by the complainant and the
witnesses and also result of enquiry under section 202 if any, complaint
may be dismissed under section 203 if the Magistrate comes to the opinion
that there is no sufficient grounds for proceeding which shall be based on
the statement made by the complainant and his witnesses. The complaint
may be dismissed,
(i) if the magistrate finds that no offence has been committed
(ii) if he distrusts the statement made by the complainant
(iii) if there is no sufficient ground for proceeding.
Where there is sufficient ground for proceedings the magistrate cannot
dismiss the complaint under section 203. When a complaint is dismissed
under this section there is no bar for filing second complaint but it will but
entertained only under exceptional circumstances like order made on
incomplete record or on misunderstanding of the nature of the complaint
etc. In every such case of dismissal of the complaint he shall briefly record
the reasons for doing so. This is to show that he has applied his judicial
mind to the facts.
In Abraham vs M. Thomas 1989 Cr.L.J. 705 (Ker) it was held that
an order of dismissal of complaint though brief must be well reasoned and
self-contained.
In Pramatha Nath Talukdar vs Saroj Ranjan Sarkar AIR 1962 SC
876 that magistrate must apply his mind to the statements of complainant
and witnesses while forming his judgement as to whether or not there is
sufficient ground for proceeding.
The finding was given in Nirmaljit vs State of West Bengal AIR
1972 SC 2639 that the word “sufficient ground” means the satisfaction
that a prima facie case is made out and do not mean sufficient ground for
conviction.
In Jatendra Singh vs Ranjit Kaur 2001(2) SCC 570 it was held that if
the dismissal of the complaint was not on merit but on default of the
complainant to be present there is no bar in complainant moving the
Magistrate again with second complaint on the same facts.

3. Charge
In case of serious offences the Code requires that the accusations are
to be formulated and reduced into writing with great precision and clarity.
The charge is then to be read and explained to the accused person. The
Code does not give any proper definition of the term Charge.
 Chapter XVII under sections 211 to 224 provides the provisions
relating to the Charge, form of charges and joinder of charges.
The chapter is divided into two parts
Part A – Section 211 to 217 deal with form of charge.
Part B – Section 218 to 224 deal with Joinder of charges.
A charge is a formal recognition of accusation by magistrate or a court
based upon a complaint or information against the accused.
Code defines charge under section 2(b) “charge includes any head of
charge when the charge contains more heads than one”
The main object of charge was highlighted in V.C. Shukla vs State
through C.B.I 1980 SCC(Cri) 695 that the charge serves as a 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
accusations that the accused is called upon to meet in the course of a trial.
It was held in Ramkrishna Sawalaram Redkar vs State of
Maharashtra 1980 CrLJ 254 that in a criminal case charge is the
foundation of the accusation and every care must be taken to see that it is
not only properly framed but evidence is only tendered with respect to
matters put in charge and not the other matters.
Part A – Form of Charges ( Section 211 to 217)
Section 211 sets out contents of charge.
(1) Every charge under this Code shall state the offence with which the
accused is charged.
(2) If the law which creates the offence gives it any specific name, the
offence may be described in the charge by that name only.
(3) If the law which 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, the
fact, date and place of the previous conviction shall be stated in the charge;
In Shashidhara Kurup vs Union of India 1994 Cr.L.J.375 (Gau) no
particulars of offence were stated it was held that the particulars of offence
are required to be stated so that the accused may make effective defence.
When it is not done and no opportunity is given to the accused to defend
his case the trial will be bad in law for being violation of natural justice.
Section 212 requires that charge shall contain particulars as to time, place
of the alleged offence and person against whom it was committed as are
reasonably sufficient to give the accused notice of the matter with which
he is charged. 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 property in respect of which the
offence is alleged to have been committed. If it is not possible to give
exact date of commission of offence, it will be sufficient to state two dates
between which the offence was committed.
In Chittaranjan Das vs State of W.B. AIR 1963 SC 1696 it was held
that it is permissible to state a charge under section 212(1) that the
particular offence was committed on or about certain date.
According to Section 213 the charge shall contain the manner of
committing offence must be stated.
Section 214 lays down 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.
Section 215 sets out that No error in stating either the offence or the
particulars required to be stated in the charge, and no omission to state the
offence or those particulars, 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.
In P.P.Karpe vs State of Maharashtra 1993 Cr.L.J. 2302 (Bom) it
was held that a mere defect in framing of the charge or not framing by
itself is not illegality unless it causes prejudice.
In State of Karnataka vs Bhojappa Hanumanthappa 1994 Cr.L.J.
1543 (Karn), which is a murder trial the charge was framed carelessly
without looking into allegations in the charge sheet that the accused
assaulted with a sickle. Other evidence revealed that accused assaulted
with other weapon. It was held accused was not misled by the error and no
failure of justice.
Section 216 provides that Court may alter charge. at any time before
judgment is pronounced. Every such alteration or addition shall be read
and explained to the accused. And 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.
In State of Maharashtra vs Salman Salim Khan (2004) Cr.L.J. 920
(SC) it was held that the law governing trial of criminal offences provides
for alteration of charges at any stage of the proceeding depending upon the
evidence adduced in the case. In this case originally charge sheeted under
section 304 A of IPC triable by Magistrate. Subsequently altered under
section 304 Part II of IPC It was held no prejudice caused to the accused.
Section 217 provides that whenever a charge is altered or added to by the
Court the accused shall be allowed to recall witnesses. Must be allowed to
recall or re- summon, and examine with reference to such alteration or
addition.

Part B - Joinder of charges (Sec.218 – 224)

Joinder of charges means ‘merger of two or more charges’. General rule
set out in section 218 (1) is that Separate charges for distinct offences.
Section 218 is mandatory and for every distinct offence there should be
separate charge subject to exceptions.
In Chandrama Prasad Chamar vs State , (1951) 1 Cal 539 it was held that
where two dacoities are committed in two different houses on the same
night, a single rolled-up charge embracing both dacoities should not be
framed.
Exceptions to this general rule.
The Code provides certain exceptions to the general rule under section
219, 220, 221 and 222.
There are seven exceptions are,
1. Three offences of the same kind within a year may be charged
together (sec.219)
2. Offences committed in the course of same transaction can be
charged together and tried at one trial (sec.220(1))
3. Offences of criminal breach of trust or dishonest misappropriation
property and their companion offences of falsification of accounts to
be tied in one trial ( Sec. 220(2))
4. Same acts falling under different definitions of offences , such
offences may be tried at one trial (sec.220(3))
5. Acts forming an offence also constituting different offence when
taken separately or in groups all such offences to be tried at one trial
( Sec. 220(4))
6. Where it is doubtful what offence has been committed( section 221)
7. When offence proved is included in offence charged. ( Sec.222)

Section 223 provides for joint trial of several persons.

The following persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course same
transaction;
(b) person accused of an offence and persons accused of abetment of, or
attempt to commit, such offence;
(c) person accused of more than one offence of the same kind, within the
meaning of section 219 committed by them jointly within the period of
twelve months;
(d) persons accused of different offences committed in the course of the
same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating,
or criminal misappropriation, and persons accused of receiving or
retaining, or assisting in the disposal or concealment of, property
possession of which is alleged to have been transferred by any such
offence committed by the first named persons, or of abetment of or
attempting to commit any such last- named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian
Penal Code or either of those sections in respect of stolen property the
possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal
Code relating to counterfeit coin and persons accused of any other offence
under the said Chapter relating to the same coin, or of abetment of or
attempting to commit any such offence; and the provisions contained in
the former part of this Chapter shall, so far as may be, apply to all such
charges:
In A.R. Antulay vs R.S.Nayak 1988 Cr.L.J 1661 (SC) that an
accused person cannot assert any right to joint trial with his co-accused. It
is right of the prosecution to decide whom to prosecute.
In Bhagwan Das vs Delhi Administration AIR 1975 SC 1309 the
manufacturer, distributor and the retail seller were sought to be jointly
tried for adulteration of certain article of food. It was held that the offences
committed by them related to the same transaction by a unity of purpose
and design and all of them could, therefore be tried jointly.
In Lalu Prasad vs State through CBI (A.H.D), Ranchi (2003) Cr.L.J.
4452 (SC). the application for joint trial was not made by all accused. It
was held that recourse to procedure of filing affidavits of consent of all
accused before Supreme Court would not be proper as consent has to be
obtained before application for joint trial is made.
Section 224. Withdrawal of remaining charges on conviction on one of
several charges.
 4. Process to compel appearance and Production of things.
The provisions under Sections 61 to 90 provide for enforcing the
appearance of the accused or of witnesses before the court and Sections 91
to 98 deal with provisions relating production of a document or a thing
before the court.
The Code gives three methods to compel appearance of the accused.
A. Summons
B. Warrant of Arrest
C. Proclamation and attachment.
D. Other rules relating to processes.
A. Summons – Section 61 to 69.
Summons is the first method to compel appearance of the accused. It is the
milder form of process issued for two purposes.
(i) For enforcing the appearance of accused or of witnesses
(ii) For production of a document or a thing.
Section 61 provides for Form of Summons
Every summons issued by a Court under this Code shall be in writing, in
duplicate, signed by the presiding officer of such court or by such other
officer as the High Court may, from time to time, by rule direct, and shall
bear the seal of the court.
Requirements are.
1. It should be clear and specified.
2. Should bear the seal of the court and signature of the presiding
officer or authorised officer.
3. It must show the name and address of the person summoned
4. It must show the place, date and time when the person summoned is
required to appear before the court.
5. It must also show the place, time and nature of the offence
committed.
Procedure for service of summons. ( Section 62 to section 69)
1. Summons how served (Section 62)
Section deals with the procedure for personal service of the summons. It
requires that the summons should not only be shown but a copy of it must
be left, exhibited, delivered or tendered to the person summoned.
2. Service of summons on corporate bodies and societies. (Section 63)
Service of a summons on a corporation may be effected by serving it on
the secretary, local manager or other principal officer of the corporation, or
by letter sent by registered post, addressed to the chief officer of the
corporation in India, in which case the service shall be deemed to have
been effected when the letter would arrive in ordinary course of post.
 It was held in Central Bank of India vs D.D.A 1981 Cr.L.J. 1476
(Delhi) that Branch Manager is a local Manager and if summons has been
served on him, the service shall be deemed to have been effected on the
company.
3. Service when persons summoned cannot be found (Sec. 64.).
Where the person summoned cannot, by the exercise of due diligence, be
found, the summons may be served by leaving one of the duplicates for
him with some adult male member of his family residing with him, and the
person with whom the summons is so left shall, if so required by the
serving officer, sign a receipt therefore on the back of the other duplicate.
Explanation.- A servant is not a member of the family within the meaning
of this section.
In Hemendranath Vs Archana 1979 Cr.L.J. 817 it was held that it is
necessary to establish that all necessary efforts are made to find the person
summoned.
4. Procedure when service cannot be effected as before provided
(Section 65)
If service cannot by the exercise of due diligence be effected as provided
in section 62, section 63 or section 64, the serving officer shall affix one of
the duplicates of the summons to some conspicuous part of the house.
5. Service of summons on government servant (Section 66)
Where the person summoned is in the active service of the Government,
the Court issuing the summons shall ordinarily send it in duplicate to the
head of the office in which such person is employed; and such head shall
thereupon cause the summons to be served.
6. Service of summons outside local limits.( Section 67).
When a Court desires that a summons issued by it shall be served at any
place outside its local jurisdiction, it shall ordinarily send such summons
in duplicate to a Magistrate within whose local jurisdiction the person
summoned resides, or is, to be there served.
7. Proof of service in such cases and when serving officer not present. (
Sec. 68)
When a summons issued by a Court is served outside its local jurisdiction,
and in any case where the officer who has served a summons is not present
at the hearing of the case, an affidavit, purporting to be made before a
Magistrate, that such summons has been served and the affidavit
mentioned in this section may be attached to the duplicate of the summons
and returned to the Court.
8. Service of summons on witness by post.( Section 69)
 A Court issuing a summons to a witness may, in addition to and
simultaneously with the issue of such summons, direct a copy of the
summons to be served by registered post addressed to the witness at the
place where he ordinarily resides or carries on business or personally
works for gain.

B. Warrant of Arrest.( Section 70 to Section 81)

The second method under chapter VI to compel the appearance of the
accused person is warrant of arrest. Warrant means “a written order of a
court addressed to one or more police officers directing to arrest a person,
whose name and address is given with the offence charged, for the purpose
of producing him before the court on a specified date and time”.
The requisites of a valid warrant under section 70 are,
1. It shall be in writing
2. It shall be signed by the presiding officer of the court.
3. It shall bear the seal of the court.
4. It shall bear the name and description of the person who is to execute
it.
5. It must indicate clear name and address of the accused.
6. It must also state the offence with which the accused is charged.
7. It should indicate the date of issue.
In S. Velappan vs State of Kerala AIR 1965 Ker. 72 it was held that
a warrant of arrest was issued directing arrest of the proprietor of a firm.
The name or description of the Proprietor was not mentioned. Kerala High
Court held the warrant is not valid.
The warrant may be (i) Bailable warrant (ii) Non-bailable warrant
Section 71 of the Cr.P.C. empowers the Court issuing the warrant to direct
the officer who has to execute the warrant, to release that person on terms
and conditions as provided therein. The warrant can be bailable as well as
non-bailable.
Section 72 provides that a warrant of arrest shall ordinarily be directed to
one or more police officers, and if no police officer is immediately
available, direct it to any other person or persons, and such person or
persons shall execute the same.When a warrant is directed to more officers
or persons than one, it may be executed by all, or by any one or more of
them.
Section 73. The Chief Judicial Magistrate or a Magistrate of the first class
may direct a warrant to any person within his local 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. When the person
against whom such warrant is issued is arrested, he shall be made over
with the warrant to the nearest police officer, who shall cause him to be
taken before a Magistrate.
The law laid down by the Supreme Court of India in the case of
State through C.B.I. Vs. Dawood Ibrahim Kaskar and Ors. 1997 Cr.L.J.
2989(SC) , non-bailable warrant can also be issued even after filing of the
charge sheet, provided the person against whom the warrants are required
to be issued is an escaped convict, proclaimed offender or is a person
accused of a non-bailable offence and is evading arrest. In such type of
cases, the court can even grant police custody for the purpose of
investigation and interrogation.
Section 74 provides that a warrant directed to any police officer may also
be executed by any other police officer whose name is endorsed by the
officer to whom it is directed or endorsed.
Section 75. Notification of substance of warrant. The police officer or
other person executing a warrant of arrest shall notify the substance
thereof to the person to be arrested, and, if so required, shall show him the
warrant.
Sec. 75 to sec. 79 sets out the Procedure as to execution of warrant. The
substance of the warrant must be notified to the person arrested and shall
show him his warrant. The person has the right to see it.. The police officer
or other person executing a warrant of arrest shall without unnecessary
delay bring the person arrested before the Court before which he is
required by law to produce such person: Provided that such delay shall not,
in any case, exceed twenty- four hours exclusive of the time necessary for
the journey from the place of arrest to the Magistrate's Court. A warrant of
arrest may be executed at any place in India.
It was held in State of W.B. vs Jugal Kishore AIR 1961 SC that
execution of the warrant is not restricted to the local limits of the
jurisdiction of the magistrate issuing the warrant or of the court to which
he is subordinate.
Section 78 to 81 lays down the execution of warrant outside the local
limits of the jurisdiction of the courts issuing the same. When a warrant is
to be executed outside the local jurisdiction of the Court issuing it, such
Court may, instead of directing the warrant to a police officer within its
jurisdiction, forward it by post or otherwise to any Executive Magistrate or
District Superintendent of Police or Commissioner of Police within the
local limits of whose jurisdiction it is to be executed.
 C. Proclamation and Attachment
The third method for compelling appearance and production of a thing or
document is Proclamation and Attachment.
Under section 82 the court may publish a written proclamation requiring
his appearance before the court on specified date and time within 30 days
from the date of publication. It will be publicly read and will be affixed in
a conspicuous place of the town or village and of the house where he
resides, some conspicuous place of the court-house and also published in
daily newspapers circulating in that area.
It was held in Devendra Singh Negi vs State of U.P. 1994
Cr.L.J.1783 (All) that without issuing warrant of arrest first proclamation
cannot be issued.
Sections 83 to 85 lays down the procedure for attachment of property of
person absconding. Order for attachment of movable or immovable
property belonging to the proclaimed person can be made at any time after
proclamation by the court issuing proclamation after recording reasons in
writing.
In Ratish Rai vs Mohesh Singh 1985 Cr.L.J. 94 that without having
issued a proclamation under section 82 attachment of property under
section 83 is not permissible.
The section 84 deals with the rights persons other than the proclaimed
person in the property attached. Any claim or objection made to the
attachment of any property attached under section 83, by a third party,
within six months from the date of such attachment on the ground that the
claimant or objector has an interest in such property.
Provision says and in the event of the death of the claimant or objector, it
may be continued by his legal representative.
Sec. 85 lays down that if the proclaimed person appears within the
specified period order will be made for release of the property and if he
does not appear the property shall be at the disposal of the government and
it will be sold after six months from the date of attachment. And the sale
proceeds shall be kept in deposit for two years.
It was held in M.C.Choudhary vs State 1972 Cr.L.J. 189 (Mysore)
that the absconder should himself appear and prove such allegations within
two years of attachment.
Section 86. Any person who is aggrieved by any refusal to deliver property
or the proceeds of the sale thereof may appeal to the Court to which
appeals ordinarily lie from the sentences of the first- mentioned Court.
D. Other rules regarding processes
Sections 87, 88 and 89 deal with other rules regarding processes.
Process to compel the production of things.
Section 91 to 98 provide for two ways to compel production of things.
A. Summons to produce (Section 91and 92)
B. Search and Seizure ( Section 93 to 98)
C. General provisions relating to search ( 99 to 100)
D. Miscellaneous provisions ( 102 to 105)
A. Summons to Produce ( Section 91 and 92)
Section 91
When court or any officer in charge of a police station considers a
document or other thing is necessary or desirable for the purposes of
investigation, inquiry, trial or other proceeding the court may issue
summons or such officer a written order to the person in whose possession
or power such document or thing is believed to be, requiring him to attend
and produce it on a specified date and time.
It was held in T.S. Subbiah vs Ramaswamy 1970 Cr.L.J. 254 thing
referred in the section is to physical object or material and does not refer to
an abstract thing. So person cannot be summoned for taking his specimen
signature or handwriting.
According to Section 92 if the document, parcel or thing required is with
postal or telegraph authority the court may direct the authority to deliver
the document parcel or thing.
Two things are necessary
1. The production of documents or thing should be necessary for the
purpose of investigation, inquiry or other proceeding
2. They must be under the custody of the postal or telegraph
authorities.
In Amar singh vs State AIR 1965 Raj. 190 it was held that no order
under this section could be passed in respect of a parcel, document or a
thing not in the custody of the postal or telegraph authorities at the time of
passing of the order but which were expected to be received in future.
B. Search and Seizure (Section 93 to 98)
Sections 93 to 98 lays down provisions relating to search warrants.
A search warrant under section 93 may be issued only when effort fails
under Section 91. It is directed to a police officer. Issue of search of
search-warrant is a grave matter. Therefore, only courts are empowered to
issue a search-warrant.
It was held in Shiva Dayal vs Sohanlal AIR 1970 Punj 468 that this
function being a judicial one the Magistrate has to apply his mind
judiciously.
Circumstances under which the court may issue search warrant.
1. When a court fails to get the document or thing produced by means of
summons or order under section 91and 92 and where a court has
reasons to believe that the person summoned will not produce it.
[Section 93(1(a)]
2. Where such document or thing is not known to the court to be in
possession of any person. [section 93(1)(b)]
3. Where the court considers that a general inspection or search is
necessary [Section 93(1)(c)]
4. Where a house is suspected to contain stolen property or forged
documents (Section 94)
5. For seizure of any forfeited publication ( Section 95 and 96)
6. For searching person wrongfully confined. (Section 97)
7. To compel restoration of abducted female or unlawfully detained
woman or a female child under the age of 18 years (Section 98)
C. General Provisions relating to search ( section 99 and 100)
The provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as
may be, apply to all search-warrants issued under section 93, section 94,
section 95 or section 97.
The section lays down provisions regarding to whom warrant must be
issued and directed, delegated, how and where it has to be executed, also
in outside jurisdiction are all applicable to search warrants also.
D. Miscellaneous Provisions
Sections 101 to 105 deal with Miscellaneous Provisions.

6. Bail ( Sec. 436 to 450)

‘Bail is a rule, jail is an exception’ is a legal doctrine that was laid down
by the Supreme Court of India in a landmark judgement of State of
Rajasthan vs. Balchand alias Baliya AIR 1977 SC 2447. The
There are two kind of offences bailable and non-bailable offences.
According to Section 436 section a person other than a person accused of a
non- bailable offence shall be released on bail if,
1. He has been arrested or detained by an officer in charge of a police
station.
2. He appears or brought before the court.
3. He is prepared to give security at any stage of the proceeding while
in custody of such officer.
Provision says may be released on executing a bond with or without
sureties. Accused under trial of an offence, not being an offence for which
the punishment is death or death as one of the punishments under law,
undergone detention for a period extending up to one-half of the maximum
period of imprisonment specified for that offence under law, he shall be
released by the Court on his personal bond with or without sureties.

Circumstances in which release on bail is mandatory.

1. Cases other than those of non-bailable offences. Under section 436
as of right can claim if arrested in bailable offence.
2. Right to be released on bail if investigation is not completed within
the prescribed number of days.
3. No reasonable grounds for believing that the accused is guilty of a
non-bailable offence but there are sufficient grounds for further
inquiry.
4. Trial not concluded within 60 days.
5. Release on bail after conclusion of the trial but before the judgment
is delivered.

When bail may be taken in case of non-bailable offence.

Section 437 confers discretionary power on the court. It should not be
arbitrary.
Discretion depends upon various considerations.
1. As the gravity of the offence increases the discretion to release the
offender on bail decreases or gets narrowed down.
2. Judicial officers are having wider discretion than police officers to
grant bail.
3. Among judicial officers the High Court and Court of Session has
wider powers.
It was held in State vs Captain Jagjith Singh AIR 1962 SC 253 and
the same finding was reiterated by the Supreme Court in State vs Jaspal
Singh Gill 1984 Cr. L.J. 1211(SC) the Court will look into the following
circumstances to allow or refuse bail.
(a) The enormity of the charge
(b) The nature of accusations
(c) Severity of punishment
(d) Nature of the evidence of prosecution to prove
(e) Danger of accused person absconding if he is released on bail
(f) Danger of witnesses being tampered.
(g) Health, age and gender of the accused
(h) The circumstances under which offence was committed.
(i) Position and status of the accused
 (j) Possibility of the accused committing more offences if
released on bail.
(k) Interest of the public.

When the accused shall not be released on bail

According to Section 437(1)
(i) A person shall not be released on bail if there are reasonable
grounds to believe that he has been guilty of an offence
punishable with death or imprisonment for life.
(ii) If offence is a cognizable offence and he had been previously
convicted of an offence punishable with death, imprisonment for
life or imprisonment for a term of 7 years or more or convicted on
2 or more occasions with a cognizable offence punishable with
imprisonment for 3 years or more but not less than 7 years in
aggregate.

When bail may be taken in case of non-bailable offence.

The accused may be released if the person referred is,
1. Under the age of 16 years
2. A woman
3. A sick or infirm person.
The reason for such privilege in the above cases was laid down in
Nirmal Kumar Banerjee vs State 1972 Cr.L.J. 1582(Cal) that a female or a
person below 16 years or a sick or infirm person, because of their physical
handicap or immaturity is not likely to interfere with the investigation or to
delay the trial by absconding or interfering.
In Venkataramanappa vs State of Karnataka 1992 Cr.L.J. 2268
(Karn) it was held that merely because the offence alleged is punishable
with death or imprisonment for life or that there is a prima facie case it
will not be sufficient ground for denying bail. Court has to see that
whether there is possibility of accused absconding or tampering with the
evidence.
No person shall be if offence alleged is punishable with death,
imprisonment for life or imprisonment for a term of 7 years or more be
released on bail by the court under this subsection without giving an
opportunity of hearing to the Public Prosecutor.
In Afzalkhan vs State of Gujarath 2007 Cr.L.J. 3223(S.C.) it was held that
the bail should be generally refused in cases involving threat to security of
State. In this case the accused was alleged to have gone to Pakistan for
getting trained in terrorist acts. The other accused was found to be in
possession of large quantity of arms. Thus a strong case was made out and
hence bail was liable to be refused.

Cancellation of bail.
The grounds under which of bail may be cancelled.
1. If the accused commits the same office during the period of bail.
2. When he tampers the investigation, forcibly preventing search of
place under his control.
3. If he tampers evidence interfering with prosecution witness and
place of occurrence to remove traces of crime.
4. If he goes underground or to a foreign country or beyond the control
of sureties.
5. If he commits acts of violence, in revenge against police or
prosecution.
Anticipatory Bail.
Section 438 lays down that where any person has reason to believe that he
may be arrested on an accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session for a
direction under this section that in the event of such arrest he shall be
released on bail, and that Court may, after taking into consideration, the
nature and gravity of the accusation, his antecedents like previous
conviction for cognizable offence and possibility of flee from justice.
While making any order the High Court or Court of Session may include
such conditions as it may think fit.
(i) He shall be available for interrogation by police officer as and
when required.
(ii) A condition that he shall not directly or indirectly make any
inducement, threat, or promise to any person so as to dissuade
from disclosing the facts known to him to the court or police
officer.
(iii) That he shall leave India without leave of the Court.
(iv) Such other conditions.
Nothing in this section shall apply to any case involving arrest of any
person on accusation of having committed an offence under Section
376(3) or Sec.376AB, 376DA, 376DB of IPC
Both High Court and Court of Session have concurrent jurisdiction.
Sunil Sharma vs State 1993 Cr.L.J. 3465(Bom)
Chadraswami vs Central Bureau of Investigation 1998 Cr.L.J 4030(SC)
Section 439 provides that the HC or Court of Session may direct that any
person accused of an offence and in custody be released on bail, and may
impose any condition which it considers necessary after giving due notice
and opportunity to the Public Prosecutor.
The Patna High Court in Surendra Singh vs State of Bihar 1990 Cr.L.J
1904 (Patna) pointed out the following grounds on which the bail can be
cancelled.
1. Person on bail found tampering with evidence during investigation
or trial.
2. Person on bail commits the similar offence or heinous offence
during period of bail
3. When he absconds and trial delayed due to that.
4. If he causes law and order problem in the society and he had become
hazard on the peaceful living of the people.
5. Where high Court finds that while granting bail the lower court has
wrongly exercised judicial power.
6. That the court finds that the person on bail misuses the privilege of
bail granted to him.
7. If the life of the person himself is in danger.

7. Preliminary pleas to bar trial

There are certain pleas that can be raised by the accused in every type of
trial when the accused appears or brought before the court. These are
objections to his being tried by the court. They may be in respect of
jurisdiction, limitation, disability of the accused etc.

The following are such preliminary pleas.

1. Competency of the court or Jurisdiction of the court.
Jurisdiction is the power of the court to entertain such case or authority to
administrate justice. A court shall not try a case unless it has jurisdiction to
try it. Any party to the case may take such plea.
Jurisdiction is broadly of two kinds.
(i) Jurisdiction to try particular offence.
Section 26, section 461 and section 479 deal with the jurisdiction to try
particular offence.
(ii) Territorial or local jurisdiction
The local jurisdiction will be determined according to the provisions
contained in section 177 to 188 of the Code.
2. Accused person suffering from certain disabilities
Accused has a right to be defended by a counsel under section 303 and
entitled to legal aid under section 304 if he is indigent person. This is also
a fundamental right to be defended by a legal practitioner under Art. 21 of
the Constitution of India. Provisions as to accused persons of unsound
mind are set out in Sections 328 to 332
It was held in Jai Shankar vs State of H.P. AIR 1972 SC 2267 that
the Magistrate is bound to inquire before he proceeds as to whether he is
incapacitated by the unsoundness of mind from making his defence.
It was held in Gurjit Singh vs State of Punjab 1986 Cr. L.J. 1505 (
P& H) that the plea of insanity must first be determined by recording the
medical evidence. Where the judge without recording any finding
regarding the mental condition of the accused framed the charge and
commenced the trial the trial was held to be violative of provisions of
section 329.
3. Barred by limitation
The major consideration for prescribing limitation for criminal cases are,
(i) Lapse of memory
With the lapse of time the testimony of witness becomes weaker and
evidence becomes uncertain due to lapse of memory.
(ii) No peace of mind
People will not have peace of mind if there is no time limitation even for
petty offences. The offender will be always kept under continuous
apprehension that he may be prosecuted at any time.
(iii) Effect of punishment will be impaired.
If prosecution is not started and punishment is not given before the offence
wiped out of the memory of the persons concerned, the accused as well as
the victim.
(iv) The sense of social retribution loses its importance.
The act of punishing someone for their actions after expiry of a long
period loses its importance. An example of retribution is when someone
gets the death penalty for committing murder. Retributive justice is a
theory of punishment that when an offender breaks the law, justice
requires that they suffer in return, and that the response to a crime is
proportional to the offence.
(v) For speedy disposal
The period of limitation makes the detection and punishment of the crime
quickly. Fixing time is necessary for speedy disposal.
Section 467 to 473 deals with the limitation for taking cognizance of
certain offences.
(4) Plea of ‘autrefois acquit’ and ‘autrefois convict’
This is a bar to criminal trial on the ground that the accused person had
been already charged and tried for the same alleged offence.
Article 20(2) of the Constitution of India states that no person shall be
prosecuted and punished for the same offence more than once.
This is also provided under Section 300 of the Code which is based on
American Jurisprudence ‘double jeopardy’. Therefore no one shall be
vexed twice for the same offence. Such trial is not fair and is prohibited by
the Code. But the previous trial should have been done by the court of
competent jurisdiction.
In Maqbool Hussain vs State of Bombay 1953 AIR 325 it was held that the
rule of double jeopardy will apply only when the prior conviction was
given by a similar authority or a judicial authority.