NOTES OF CODE OF

CRIMINAL
PROCEDURE,
PROBATION AND
JUVENILE

1
 INDEX
SR NO TOPIC/QUESTION PG NO
1. INTRODUCTION 6
Q1a) Discuss briefly the principal or
primary features of a fair criminal trial
Q1b) Discuss the powers of criminal courts
regarding the sentences which they may
pass under the code of criminal procedure, 8
1973
OR
What are the various criminal court as
mentioned in the criminal procedure code,
1973 and what are their powers regarding
passing of sentences under CrPC, 1973.
OR
Write down the hierarchy of the Criminal
Courts and their powers and functions
under CrPC, 1973.
Q1c) What do you mean by ―First
Information Report‖? State its evidentiary 11
Value.
Q1d) Write down the procedure to lodge
Complaint with the Magistrate. 13

2. ARREST 14
Q2a) Explain the meaning of Arrest?
Q2b) When can Police officer arrest 15
without warrant?
Q2c) Can a Private person arrest any 16
person?
Q2d) Discuss the rights of an arrested 16
person under the code of criminal
procedure.
Q2e) Explain the powers and obligations of 18
a police officer on the matter of arresting a
person without warrant.
Q2f) What are the effects of Illegal Arrest? 19
Q2g) Discuss the process of making arrest. 20
Q2h) Distinguish between Detention,
Arrest and Custody. 22

2
3. MAINTENANCE 22
Critically discuss the law of maintenance
under section 125 of the code of criminal
procedure, 1973 as amended thereafter.
OR
What are the provisions of Criminal
Procedure code regarding orders of
maintenance of wives, children and
parents?
Q3b) When can Maintenance Order passed 25
in favour of wife be set aside?
Q3c) Who are the persons entitled to get 27
maintenance under CrPC?
Q3d) When can the maintenance allowance 28
be altered?

4. CHARGE 29
Q4a) What particulars are required to be
stated in a charge?
Q4b) What is the difference between 30
charge and charge-sheet?
Q4c) What is the effect of error or omission 31
in a charge?

5. PLEA BARGAINING, JUDGEMENT,

SEARCH AND SUMMONS
32
Q5a) What do you mean by Plea
Bargaining?
Q5b) Discuss the circumstances that
32
necessitated the incorporation of a separate
chapter on plea bargaining in CrPC?
Q5c) How can an application for plea
34
bargaining be made before the court?
Q5d) What are the necessary contents of a
36
Judgement?
Q5e) Briefly explain the mode of delivering
38
Judgement.
Q5f) What is the purpose of the search and
39
seizure process?
Q5g) Explain ―Search without warrant
40
with case laws‖.
Q5h) Write Down how summons are made
42
to accused and witness.

6. TRIAL 44
Q6a) What do you mean by trial?
Q6b) State the procedure of trial held by
the Session’s Judge or before a court of 45

3
 session. 48
Q6c) Discuss the procedure of a warrant
case instituted otherwise than on police
report.

7. BAIL 49
Q7a) What do you understand by the term
―Anticipatory Bail‖.
Q7b) Under what circumstances can 50
Anticipatory bail be granted?

Q7c) ―Bail may be taken in case of non-

51
bailable offence‖-Explain.

Q7d) Explain Bail in bailable offences. 55

8. APPEAL 57
Q8a) What do you mean by Appeal?
Q8b) Under what circumstances is a
58
convicted person banned from making an
appeal?
Q8c) What are the powers of the Appellate 59
Court?

9. DIFFERENCES 60
Q9a) Define and Distinguish between
Bailable and Non-bailable offence.
Q9b) Define and distinguish cognizable and 61
non-cognizable offences.
Q9c) Define and Distinguish between 63
Discharge and Acquital.
Q9d) Define and Distinguish between 64
Inquiry, investigation and trial.
Q9e) Define and Distinguish summons and 65
warrant case
Q9f) Define and Distinguish between 66
Appeal and Revision.
Q9g) Define and distinguish between F.I.R 67
and Complaint

10. SHORT NOTES

Q10a) Write short note on Remand. 68
Q10b) Write short note on Assistant 69
Session’s Judge
Q10c) Write short note on Judicial 69
Proceeding.
Q10d) Write a short note on case Diary. 70

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11. PROBATION
Q11a) What do you mean by Probation? 71
Q11b) Discuss the duties and 72
responsibilities of Probation Officer.
Q11c) Differentiate between probation and 73
admonition.
Q11d) Write a brief note on the powers of 73
the Court to deal with an offender who has
failed to observe conditions of bond
executed under section 4 of the probation
of offenders act, 1958.
Q11e) What are the powers of the court to 74
release offenders on probation of good
conduct?

12 JUVENILE
Q12a) Discuss the constitution of Juvenile
Justice Board. 75
Q12b) Discuss the powers of the Juvenile 76
Justice Board.
77
Q12c) What is shelter home and fit person?
Q12d) What are the powers and duties of
77
child welfare committee?

5
Q1) (a) Discuss briefly the principal or primary features of a fair criminal trial.

Ans 1a) A trial conducted by a judge in an impartial way is said to be a Fair Trial. The question
of whether a trial is fair or not depends upon the procedure as laid down by the Code of Criminal
Procedure, 1973 and the prevailing system of criminal justice. In Zahira Habibullah Sheikh and
Ors. v. State of Gujarat and Ors, 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 judicial calm. A 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. Thus, in order to secure the right to fair and impartial trial all Indian criminal laws
are well made to safeguard these rights.

Universal Declaration of Human Rights (UDHR) at global level recognizes the concept of a fair
trial as the part of human rights. Article 10 of the UDHR provides that ―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.‖ Right to a
fair trial is a concept which is essentially embodied in the Constitution of India. In a democratic
country like India, even an accused cannot be denied his right to life and personal liberty. Indian
Constitution through its Article 21 renders the fair trial a part of life and personal liberty.

The principles of Fair Trial can be summarized as follows:-

1. Adversary Trial System:

The Code of Criminal Procedure, 1973 is based on an adversarial trial system. This system
suggests that onus of proving the guilt of the accused is on the prosecution and judge acts as a
neutral referee from both the sides. In Himanshu Singh Sabharwa v. State of M.P. and Ors., 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 subserve the cause of justice.

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2. Presumption of innocence:

An accused is innocent until proven guilty. The onus of proving that the accused is guilty is on
the prosecutor. This principle has been originated from a Latin maxim, ‗eiincumbitprobatio qui
dicit, non quinegat‘, which means the burden of proof rests on the one who asserts and not on the
one who denies. Presumption of innocence is the fundamental principle and has its recognition in
human rights. Article 11(1) of UDHR reads ‗Everyone charged with a penal offence has the right
to be presumed innocent until proved guilty according to the law in a public trial at which he has
had all the guarantees necessary for his defence.‘ The apex court in State of U.P. v. Naresh and
Ors, held that ―every accused is assumed 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.‖ The principle of innocence is must in a trial
in order to protect the accused from arbitrary and wrongful conviction.

3. Independent, Impartial and Competent judge:

This principle can be said to emerge from the principle of natural justice ‗nemo judex in causa
sua‘ which means no one can be a judge in his own cause. Thus, a trial is said to be fair if it is
done before an independent, impartial and a competent judge. Independence of the judiciary is
the essential part of Indian Constitution. Section 479 of the Code of Criminal Procedure
explicitly prohibits any judge or magistrate to trial any case in which he is a party or personally
interested and also prohibits to entertain any appeal from any order or judgment made by him.
Shyam Singh v. the State of Rajasthan, the court held that the question is not whether a bias has
actually affected the judgment. 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.

Q1) (b) Discuss the powers of criminal courts regarding the sentences which they may pass
under the code of criminal procedure, 1973

OR

7
What are the various criminal court as mentioned in the criminal procedure code, 1973
and what are their powers regarding passing of sentences under CrPC, 1973.

OR

Write down the hierarchy of the Criminal Courts and their powers and functions under
CrPC, 1973.

Ans 1b) The hierarchy of the Criminal Courts in India is as follows:-

1. The Supreme Court of India- The highest form of a judicial forum and final court of
appeal is the Supreme Court of India as stated under the Constitution of India. The
Supreme Court of India is entrusted with the power of the judicial review. This Court is
formed by the Chief Justice of India and a panel of 30 other judges who hold extensive
capabilities in the form of original appellate and advisory jurisdictions. As the Supreme
Court is the final court of appeal in the nation, it chooses to take up appeals primarily
against the verdicts issued by the High Courts of various states.
2. The High Courts- The judicial system of India is formed by the 24 High Courts placed
at the country‘s state and union territory level along with the Supreme Court of India at
the national level. Every High Court has the jurisdiction over a state, a union territory or
over a group of states and union territories. The High Courts of India are considered the
principal civil courts of the original jurisdiction in every state and union territory. A High
Court exercises its original civil and criminal jurisdiction when the subordinate courts do
not authorization by law to try such cases. These courts may also have approval in first
authority in some issues as explicitly designated in the federal or state‘s laws.
3. The Sessions Judge– Section 9 of the CrPC talks about the establishment of the Sessions
Court. The State Government establishes the Sessions Court which has to be presided by
a Judge appointed by the High Court. The High Court appoints Additional as well as
Assistant Sessions Judges. The Court of Sessions ordinarily sits at such place or places
as ordered by the High Court. But in any particular case, if the Court of Session is of the
opinion that it will have to cater to the convenience of the parties and witnesses, it shall
preside its sittings at any other place, after the consent of the prosecution and the accused.

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 According to section 10 of the CrPC, the assistant sessions judges are answerable to the
sessions judge.
4. The Additional/ Assistant Sessions Judge- These are appointed by the High Court of a
particular state. They are responsible for cases relating to murders, theft, dacoity, pick-
pocketing and other such cases in case of absence of the Sessions Judge.

5. Chief Judicial Magistrate- Except for the Metropolitan area, the Judicial Magistrate of
the first class shall be appointed as the Chief Judicial Magistrate. Only the Judicial
Magistrate of First Class may be designated as Additional Chief Judicial Magistrate.
6. First Class Judicial Magistrate- As stated in the Criminal Procedure Code of 1973, a
State Government may establish a Court of Judicial Magistrate of the First Class with the
consultation of the High Court of the respective state. The Judicial Magistrate is generally
controlled by the Sessions Judge with the Chief Judicial Magistrate as a subordinate as
stated in Section 15 of the Code.
7. The lowest in the hierarchy that forms the Criminal Court structure in India is the Courts
of the Judicial Magistrate of Second Class.
8. Metropolitan Magistrate- They are established in Metropolitan areas. The High Courts
have the power to appoint the presiding officers. The Metropolitan Magistrate shall be
appointed as the Chief Metropolitan Magistrate. The Metropolitan Magistrate shall work
under the instructions of the Sessions Judge.
9. Executive Magistrate- According to section 20 in every district and in every
metropolitan area, an Executive Magistrate shall be appointed by the State Government
and one of them becomes District Magistrate.

Powers of the Courts are as follows:-

1. The Supreme Court, High Courts and Sessions Judges (Section 28) can pass
the following sentences:-

 Any sentence authorized by law can be passed by the Supreme Court and High Court.
 A sessions or additional sessions Judge has the authority to pass any sentence authorized
by law. But, while passing death sentence prior permission from High Court is required.

9
  An Assistant Sessions Judge has the authority to pass any sentence which has been
authorized by law. Such judge cannot pass a death sentence, life imprisonment or
imprisonment for more than 10 years

2. The following Sentences can be passed by the Magistrates (Section 29): –

 The Court of Chief Judicial Magistrate is authorized to pass any sentence approved by
law except for death sentence, life imprisonment or imprisonment for more than seven
years.

 The first class Magistrate is eligible to pass a sentence of imprisonment for a term of
not more than three years, or fine not exceeding ten thousand rupees or both.
 The Second Class Magistrate may pass a sentence of imprisonment for a term not more
than one year, or fine or both. The fine imposed cannot exceed five thousand rupees.
 The Chief Metropolitan Magistrate has the powers of that of a Chief Judicial Magistrate
as well as that of a Metropolitan Magistrate, in addition to the powers of the First Class
Magistrate.

3. The sentence for default of fine (Section 30)– According to this section, the Magistrate has
the power to pass imprisonment for default of payment of fine as specified by law. But the
following conditions need to be satisfied.

 The term should not go beyond the ambit of the powers of the Magistrate (under section
29).
 The term should not exceed one-fourth of the term of imprisonment which the Magistrate
is competent to award only if imprisonment awarded, is a part of the substantive sentence
as punishment for the offence.
 The imprisonment sentenced under this section may be in addition to a substantive
sentence of imprisonment for the maximum term awardable by the Magistrate under
section 29.
 The sentence in cases of conviction of several offences at one trial (Section 31)–
According to this section, when a person is convicted for two or more offences, at one

10
 trial, the Court may sentence him for such offence in one trial, subject to the provisions
of section 71.
 The court also has the power to award several punishments. Such sentences of
imprisonment may commence after the expiration of other punishments. Unless courts
direct such punishments run simultaneously with each other. In the case of succeeding
sentences, it is not necessary for the Court to send the offender before High court. If the
aggregate punishment for several offences exceeds the power of the court to inflict the
punishment for a single offence. Provided that
 The imprisonment should not exceed a term of fourteen years.
 the aggregate punishment also shall not exceed twice the amount of punishment which
the Court is competent to inflict for a single offence.

Q1c) What do you mean by ―First Information Report‖? State its evidentiary Value.

A1c) The first information report means an information recorded by a police officer on duty
given either by the aggrieved person or any other person to the commission of an alleged
offence. On the basis of first information report, the police commences its investigation. Section
154 of the Code of Criminal Procedure, 1973 defines as to what amounts to first information. In
order to constitute an FIR in terms of section 154 of the Code. of Criminal Procedure, 1973 two
conditions are to be satisfied and they can be summarized as follows:-
(a) what is conveyed must be an information; and

(b) that information should relate to the commission of a cognizable offence on the face of it.

In other words, FIR is only a complaint to set the affairs of law and order in motion and it is only
at the investigation stage that all the details can be gathered. In one of the judgments, the
Madhya Pradesh High Court observed that the report of the crime which is persuading the police
machinery towards starting investigation is FIR, subsequent reports are/were written, they are not
hit under section 161 of the Code of Criminal Procedure, 1973 and cannot be treated as such.
First Information Report (FIR) can be filed by any person. He need not necessarily be the victim
or the injured or an eye-witness. First Information Report may be merely hearsay and need not
necessarily be given by the person who has first hand knowledge of the facts. An FIR can be

11
filed in the police station of the concerned area in whose jurisdiction the offence has occurred. A
first are to obtain information about the alleged criminal activity so as to be able to take suitable
steps for tracing and bringing to book the guilty person. Its secondary though equally important
object is to obtain early information of an alleged criminal activity and to record the
circumstances before the trial, lest such circumstances are forgotten or embellished.

EVIDENTIARY VALUE OF F.I.R

The FIR is not substantive evidence, but it can be used to corroborate the informant under
Section 157 of the Evidence Act, or to contradict him under Section 145 of the Act, if the
informant is called as a witness at the time of trial. Obviously, the FIR cannot be used for the
purposes of corroborating or contradicting any witness other than the one lodging the FIR.

The FIR can have better corroborative value if it is recorded before there is time and opportunity
to embellish or before the informant‘s memory fails. Undue or unreasonable delay in lodging the
FIR therefore, inevitably gives rise to suspicion which puts the court on guard to look for the
possible motive and the explanation and consider its effect on the trustworthiness or otherwise of
the prosecution version. The fact that the FIR does not contain the names of the accused or of the
eyewitnesses, is normally an important circumstance, but the omission loses its significance if
the FIR is from a person other than an eyewitness.

If the FIR is given to the police by the accused himself, it cannot possibly be used either for
corroboration or contradiction because the accused cannot be a prosecution witness, and he
would very rarely offer himself to be a defense witness under section 315 of the code. Moreover,
if the FIR is of a confessional nature it cannot be proved against the accused informant, because
according to Section 25 of the Evidence Act, no confession made to a police officer can be
proved as against a person accused of any offence. But it might become relevant under section 8
of the Evidence Act as to his conduct. If FIR given by thee accused person is non- confessional,
it may be admissible in evidence against the accused as an admission under section 21 of the
Evidence Act, or again, as showing his conduct under section 8 of the Evidence Act.

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 It was held in Pandurang Chandrakant Mhatre v. State of Maharashtra, that it is fairly well
settled that first information report is not a substantive piece of evidence and it can be used only
to discredit the testimony of the maker thereof and it cannot be utilised for contradicting or
discrediting the testimony of other witnesses. Although first information report is not expected to
be encyclopedia of events, but an information to the police to be ―first information report‖ under
Section 154(1) must contain some essential and relevant details of the incident.

Moreover, FIR can even become substantial evidence in following circumstances:

1. During declaration when a person deposing about the cause of his death had died (that is, a
dying declaration). In such case FIR will become admissible under Section 32(1) of the Indian
Evidence Act, 1872.

2. When the injuries are being caused in the presence of Station House officer in a police station
and the injured makes a statement to the SHO saying that accused was injuring him.

3. When the informer who has written the FIR or read it, fails to recall memory those facts but is,
sure that the facts were correctly represented in FIR at the time he wrote it or read it.

Q1d) Write down the procedure to lodge Complaint with the Magistrate.

Ans 1d) The procedure has been enunciated in Section 200 of Code of Criminal Procedure Act,
1973. The following are the important points which are required to be noted while the complaint
is being lodged and they are:-

1. The complaint has to be filed with the magistrate who has the jurisdiction to try the offence
complained of. However in cases where the complaint is accidentally filed with the magistrate
not having the jurisdiction, the magistrate is duty bound to return the complaint to be presented
to the appropriate magistrate by stating the necessary details thereof.
2. The complaint may be made orally or in writing. However it is always better to furnish it in
writing.
3. Unlike the filing of the FIR, whereafter the police straightaway proceed to investigate the
offence complained of and arrest the suspects, in case of the complaint the magistrate will not

13
 proceed with it without examining the complainant and witnesses (note-only the witnesses who
are present at the time of filing such complaint).
4. Thereafter the magistrate will make a written report of the examination and sign it himself as
well as get it signed by the complainant and the witnesses.
5. Thereafter if the magistrate is satisfied that the complaint coupled with the examination discloses
an offence he shall proceed with taking ―cognizance‖ of the offence (which simply means that he
would summon the accused suspects for the purpose of trial)
6. However if the magistrate is not satisfied that the complaint (and examination) discloses any
offence, he may take one of the two options available to him: he may either dismiss the
complaint or he may order the police to undertake some further investigation under Section 202
of the Code.
7. After the police officer reports back to the magistrate his findings the magistrate may proceed
with either of the steps stated in point 5 and point 6 (minus the investigation order, of course,
which has already been given).

Q2a) Explain the meaning of Arrest?

Ans 2a) As per Legal Dictionary by Farlex, ―Arrest‖ means “a seizure or forcible restraint; an
exercise of the power to deprive a person of his or her liberty; the taking or keeping of a
person in custody by legal authority, especially, in response to a criminal charge.”

In criminal law, arrest is an important tool for bringing an accused before the court and to
prevent him from absconding. Thus, after arrest, a person’s liberty is under the control of
arrester. Every deprivation of liberty or physical restraint is not arrest. Only the deprivation of
liberty by legal authority or at least by apparent legal authority, in a professionally competent
and adept manner amounts to arrest. However, a person against whom no accusation of crime
has been made may be arrested /detained under a statute for certain purposes like removal in safe
custody from one place to another, for example – removal of a minor girl from a brothel. One
thing to be noted that ‗custody‘ and ‗arrest‘ don‘t have same meaning. Taking of a person into
judicial custody is followed after the arrest of the person by Magistrate on appearance or
surrender. In every arrest there is custody but not vice versa. Thus, mere taking into custody of a
person an authority empowered to arrest may not necessarily amount to arrest. The mere

14
purpose of arrest is to bring a arrestee before a court and to secure the administration of
the law. An arrest also serve the function of notifying society that an individual has been
committed a crime and to deter him from committed any other crime in future.

Q2b) When can Police officer arrest without warrant?

Ans 2b) Section 41 enumerates the different categories of cases in which an officer of the Police
Department may arrest an individual without an order from a Magistrate and a warrant. These
include the following.

1. A person who has been concerned with and in any cognizable offence or against whom a
reasonable complaint has been filed, or credible information has been received, or a
reasonable suspicion surrounds the person, of his having been so concerned.
2. A person who has an item in his possession without any lawful excuse, the burden of
proving which excuse shall lie on such a person, any implement of housebreaking.
3. A person who has been proclaimed as an offender either under the Code or by order of the
State Government.
4. A person who is in possession of anything that may reasonably be suspected to be stolen
property and a person who may be reasonably be suspected of having committed an offence
with a reference of such a thing.
5. A person who obstructs the functioning of a police officer while in the execution of his
duty, or who have escaped, or attempts to escape, from lawful custody.
6. An individual who is reasonably suspected of being a deserter from any of the Armed
Forces of the Union.
7. A person who has been involved in, or against whom a reasonable complaint has been
made, or credible information has been obtained, or a reasonable suspicion exists, of his
having been involved in, any act committed at any country or a place out of India which, if
done in India, would have been considered and punishable as an offence, and for which he
is, under any law concerned to extradition, or otherwise, liable to be apprehended or
detained in custody in India.
8. A person who was a released convict and commits a breach of any rule, relating to the
notification of the residence or change of or absence from the place of residence.

15
 9. A person for whose arrest any requisition, regardless of being written or oral, has been
received from another officer, provided that the order specifies the individual to be arrested
and the crime or other causes for which the detainment is to be done, and it appears
therefrom that the individual might lawfully be arrested without a warrant by the officer
who issued the requisition.

Q2c) Can a Private person arrest any person?

Ans 2c) Yes a private person can arrest any person. Section 43 lays down the process of arrest by
private person and they are as follows:-

 Any private person may arrest or cause to be arrested any person who in his presence commits
a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary
delay, shall make over or cause to be made over any person so arrested to a police officer, or,
in the absence of a police officer, take such person or cause him 10 be taken in custody to the
nearest police station.

 If there is reason to believe that such person comes under the provisions of section 41, a police
officer shall re-arrest him.

 If there is reason to believe that he has committed a non-cognizable offence and he refuses on
the demand of a police officer to give his name and residence, or gives a name or residence
which such officer has reason to believe to be false, he shall be dealt with under the provisions
of section 42; but if there is no sufficient reason to believe that he has committed any offence,
he shall be at once released.

Q2d) Discuss the rights of an arrested person under the code of criminal procedure.

Ans 2d) An arrest of an individual is made to ensure his presence at a trial scheduled in
connection with the offences to which the person is directly or indirectly involved or to prevent
the commission of a criminal offence. It is the principle to treat an individual with the
presumption that he is innocent until proven guilty. Therefore, persons who are being arrested
have individual rights that are mention under the Criminal Procedure Code, and they are as
follows:-

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 A. Section 50: Right to be informed

It is the fundamental right of a person to be informed of the actions that are to be made against
him. A police officer has to inform the individual and also inform the person if the offence falls
under the bailable or non-bailable category. Usually, bailable offences are those offences where
bail may be granted, and it is the right of an individual to be granted bail. On the other hand,
non-bailable offences are situations when bails cannot be issued and to do so is in the sole
discretion of the court.

B. Section 75: Right to see an arrest warrant

In situations of non-cognizable cases, an arrest is to be made with an arrest warrant, and the
individual who is to be arrested has every right to see the warrant as stated in Section 75 of the
Criminal Procedure Code. The warrant must check specific requirements such as that the warrant
must be in writing, signed by a presiding officer, sealed by the court, name and address of the
accused and the offence under which the arrest is being made. A warrant is termed illegal if any
of these requirements fall short.

C. Other Rights

The following are the other rights that an accused that is getting arrested can have:-

1. The police officer must be clear with his identity. He must wear a clear and visible
identification of his name which facilitates easy identification.
2. A memo of arrest should be prepared at the time of arrest and attested by at least one
witness (can be a family member or a member of the locality) when the arrest is done and
must be countersigned by the accused.
3. Under Section 41D and Section 303 of the Criminal Procedure Code, the accused and
arrested has every right to meet an advocate of choice during interrogation.
4. Section 50 of the Criminal Procedure Code states that the arrested has the right to inform a
member of his family, relative or a friend of the situation.

17
 5. The arrested person has the right not to be detained for more than 24 hours without being
present before a Magistrate. This right is fundamental and prevents unlawful and illegal
arrests as supported by Section 57 and Section 76 of the Criminal Procedure Code.
6. According to Section 54 and Section 55A, the arrested person has the right to be medically
examined to establish the offence that he charged with was not committed by him or that he
was subjected to torture physically.
7. The arrested individual has the right to remain silent under Section 20(3) of the Indian
Constitution to prevent self-incriminating statements being extracted with or without his
consent.

Q2e) Explain the powers and obligations of a police officer on the matter of arresting a
person without warrant.

Ans 2e) Section 41 enumerates the different categories of cases in which an officer of the Police
Department may arrest an individual without an order from a Magistrate and a warrant. These
include the following.

1. A person who has been concerned with and in any cognizable offence or against whom a
reasonable complaint has been filed, or credible information has been received, or a
reasonable suspicion surrounds the person, of his having been so concerned.
2. A person who has an item in his possession without any lawful excuse, the burden of
proving which excuse shall lie on such a person, any implement of housebreaking.
3. A person who has been proclaimed as an offender either under the Code or by order of the
State Government.
4. A person who is in possession of anything that may reasonably be suspected to be stolen
property and a person who may be reasonably be suspected of having committed an offence
with a reference of such a thing.
5. A person who obstructs the functioning of a police officer while in the execution of his
duty, or who have escaped, or attempts to escape, from lawful custody.
6. An individual who is reasonably suspected of being a deserter from any of the Armed
Forces of the Union.

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 7. A person who has been involved in, or against whom a reasonable complaint has been
made, or credible information has been obtained, or a reasonable suspicion exists, of his
having been involved in, any act committed at any country or a place out of India which, if
done in India, would have been considered and punishable as an offence, and for which he
is, under any law concerned to extradition, or otherwise, liable to be apprehended or
detained in custody in India.
8. A person who was a released convict and commits a breach of any rule, relating to the
notification of the residence or change of or absence from the place of residence.
9. A person for whose arrest any requisition, regardless of being written or oral, has been
received from another officer, provided that the order specifies the individual to be arrested
and the crime or other causes for which the detainment is to be done, and it appears
therefrom that the individual might lawfully be arrested without a warrant by the officer
who issued the requisition.

The officer need not use handcuffs, or place the arrestee in a police cruiser, although police often
use these tactics to protect themselves. police officers are only allowed to use the minimum
amount of force necessary to protect themselves and bring the suspect into police custody. This
is why people are advised to never resist an arrest or argue with police, even if they believe the
arrest is inappropriate, since resistance could lead to the use of more force. If the arrestee thinks
the arrest is unjustified or incorrect, they can always challenge it later with the help of an
attorney.

Q2f) What are the effects of Illegal Arrest?

A2f) The word ―arrest‖ is not defined in The Code of Criminal Procedure, 1973. Chapter V
(Five) of The Code of Criminal Procedure, 1973 u/s 41 to 60 deals with the provisions relating to
arrest of persons. Arrest means deprivation of a person of his liberty by legal authority. It is
expected that every arrest must be in accordance with the procedure establish by law for example
Article 21 and Article 22 of the Indian Constitution.

When arrest is made, without complying with the procedures or provisions as laid down in
The Code of Criminal Procedure, 1973, it is an unlawful restraint of an individual‘s personal
liberty or freedom and can be called false or illegal arrest. Illegal arrests and wrongful

19
imprisonment result in violation of fundamental rights guaranteed by the Constitution of India.
Arrest has to be usually made, keeping in mind, that to secure the administration of law and to
protect and uphold the human rights of the citizens is of utmost importance.

If the police has arrested or detained any person without the authority of any law or in
contravention of the procedure established by law which authorizes such arrest or detention, such
arrest or detention is itself invalid and unconstitutional. The High Court or the Supreme Court
may issue a writ of ―Habeas Corpus‖ against the authority which has arrested the person and kept
him in custody and order the release of the person under detention. In false imprisonment, the
equal protection of law which is guaranteed under our Constitution, is usually not implicated to
the person which somehow leads to violation of his fundamental rights. The case of Joginder
Kumar v/s State of U.P is an example which highlights the wrongful use of arrest power by the
police without a valid reason and the arrest was not recorded in the police diary.

Tort is a civil wrong which includes wrongful restraint of a person, by another who is not
authorized under law, to do so, which leads to barring of freedom of movement of the person so
restrained. Action can be instituted for damages resulting from illegal arrest such as injury to
reputation which results in pecuniary loss to the victim. Though ill will and malice are not
elements of tort but if proven, punitive damages can be awarded for the same in addition with
nominal or compensatory damages.

In Boya Nallabothula Venkateswarlu and Ors Vs. The Circle Inspector of Police, Nandikotkur
PS and Ors the Hon‘ble Division Bench of A.P. High Court directed the state as well as the
police personnel responsible for illegal arrest and wrongful detention to pay compensation to the
appellants who were purposely and deliberately implicated in a grave charge of murder.

Q2g) Discuss the process of making arrest.

A2g) The mode of arrest is been mentioned under section 46 with or without warrant. In making
an arrest the police officer /other person making the same actually touches or confines the body
of the person to be arrested unless there be a submission to custody by words or action. When
the police arrests a person in execution of a warrant of arrest obtained from a magistrate, the

20
 person so arrested shall not be handcuffed unless the police have obtained orders from the
Magistrate in this regard. The following points should be followed while making arrest:-

1. In making an arrest the police officer or other person making the same shall actually touch or
confine the body of the person to be arrested, unless there be a submission to the custody by
word or action. Provided that where a woman is to be arrested, unless the circumstances
indicate to the contrary, her submission to custody on an oral intimation of arrest shall be
presumed and, unless the circumstances otherwise require or unless the police officer is a
female, the police officer shall not touch the person of the woman for making her arrest.

2. If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such
police officer or other person may use all means necessary to effect the arrest.

3. Nothing in this section gives a right to cause the death of a person who is not accused of an
offence punishable with death or with imprisonment for life.

4. Save in exceptional circumstances, no women shall be arrested after sunset and before sunrise,
and where such exceptional circumstances exist, the woman police officer shall, by making a
written report, obtain the prior permission of the Judicial Magistrate of the first class within
whose local jurisdiction the offence is committed or the arrest is to be made.

Q2h) Distinguish between Detention, Arrest and Custody.

A2h)

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Q3a) Critically discuss the law of maintenance under section 125 of the code of criminal
procedure, 1973 as amended thereafter.

OR

What are the provisions of Criminal Procedure code regarding orders of maintenance of
wives, children and parents?

A3a) The provisions for Maintenance are contained in Chapter IX of C.R.P.C, 1973 and they
extend from sections 125 to section 128. According to section 125 any person who inspite of
possessing sufficient means neglects or refuses to maintain the people who are entitled to claim
and get maintenance from that ―any person‖, may be ordered to pay maintenance (monthly
allowance) to those people by a first class magistrate, provided there is proff of such neglect or
refusal. The word ―any person‖ here includes a father, or a son or a husband but it does not
include a daughter or mother or wife. However a married daughter is included in this term.

The word ―sufficient means‖ does not imply only visible means such as real property or
employment but also the reference to earning capacity. It actually refers to the earning capacity
of a man and if a man is healthy physically and mentally then he is presumed to be possessed
with means to support his wife or children even if he is unemployed. Even omission on behalf of

22
the wife to point out that the husband has got sufficient means does not take away her right to get
maintenance. ―Refusal‖ to maintain may be express or it may be implied. It may be words
spoken or may be conduct. But once the prove is there that any person has neglected or refused
to maintain the people who can get maintenance , then the magistrate can give order under
section 125.

The following are the people who can get maintenance under section 125 of C.R.P.C, 1973:-

 A wife who is unable to maintain herself

 Legitimate or illegitimate minor child, whether married or not, who is unable to maintain
herself. The magistrate if satisfied that the husband of a minor female child does not have
sufficient means to maintain her, then it may order the father of such minor female child
to maintain her until she attains majority.

 Legitimate or illegitimate child (except a married daughter) who is major, but who by
reason of any physical or mental abnormality or injury is unable to maintain itself.

The order of maintenance ordered to be paid by the magistrate is in the form of monthly
allowance in favour of the entitled people who can get maintenance and he may also direct to
whom the allowance shall be paid from time to time. The magistrate may during the pendency of
the proceeding for the final maintenance allowance, order a monthly allowance for an interim
maintenance in favour of such person who applies for maintenance and the magistrate may also
direct to whom such interim maintenance allowance is to be paid from time to time. If an
application is being made for the monthly allowance of interim maintenance then as much as
possible, that application should be heard and disposed off within sixty days from the day of the
service of notice of application of interim maintenance to the person who will provide it.

The interim maintenance shall be paid from the date of the order of the magistrate or if it is
stipulated in the order then from the date of the application for interim maintenance. The final
maintenance shall also be paid from the date of the order of the magistrate or if it is stipulated in
the order then from the date of the application for final maintenance.

125(3) provides remedies for the enforcement of the order of payment of a maintenance
allowance or interim maintenance and the remedies are:-

23
  Issue of warrant for levying the amount due,

 Sentence the husband (or the father) for the default of payment of whole or part of each
months allowance or interim maintenance to imprisonment which may extend to one
month.

Before proceeding under section 125(3) the following conditions must be satisfied however:-

 The person proceeded against was ordered to pay the maintenance or the interim
maintenance.

 He failed to comply with the order

 His such failure was without sufficient cause.

 Before any action may be taken , the husband will be provided opportunity to show
―sufficient reason‖ for failure to adhere the order of maintenance.

Section 125(4) provides the conditions when the order of maintenance or an interim maintenance
in favour of a wife will not be provided under section 125 of C.R.P.C, 1973. The Conditions are
as follows:-

 The wife is living in adultery, or

 The wife is not staying with her husband without showing sufficient reason for such
action.

 The husband or wife are living separately by mutual consent.

Here regarding the second point and the first point of the above mentioned conditions, in the
definition of wife divorced wife will not fall. Regarding the first point, the basis of adultery is
that it is an offence done with a married woman against the will or consent of the husband of that
married women. Now in case of a divorced women whose marriage has been dissolved by a
valid decree of divorce from a court of competent jurisdiction in terms of the personal law of the
concerned parties, the status of being married no longer exists as soon as such court of competent
jurisdiction provides such decree of divorce. Now when the divorced women after the divorce is
provided loses her marital status, then there is no question of adultery, as after divorce she is free

24
to establish physical relationship with anyone within the legal limits. If divorced women were to
be denied maintenance here under this condition of adultery then indirectly the stipulation
provides that if the divorced women were to avail maintenance then even after getting divorced
under personal law she cannot be establishing any sexual relationship with another person (who
is not her divorced husband) without the consent of her divorced husband as otherwise it would
be adultery. This stipulation is problematic as after divorce she is free to establish physical
relationship with anyone within the legal limits.

The 2nd condition also cannot be invoked in case of a divorced women. If divorced women were
to be denied maintenance here under this condition that if she is not staying with her husband she
will not get maintenance, then indirectly the stipulation provides that if the divorced women
were to avail maintenance then even after getting divorced under personal law she will have to
stay with her divorced husband. This stipulation is problematic as after getting divorced under
personal law she cannot be forced to stay with her divorced husband as she is totally free to live
on her won or with someone else within the legal limits.

Section 125(5) provides the conditions when the order of maintenance or an interim maintenance
in favour of a wife will be cancelled even after being provided in her favour by the court under
section 125 of C.R.P.C, 1973. The Conditions are as follows:-

 The wife is living in adultery, or

 The wife is not staying with her husband without showing sufficient reason for such
action.

 The husband or wife is living separately by mutual consent.

Q3b) When can Maintenance Order passed in favour of wife be set aside?

A3b) Section 125(5) provides the conditions when the order of maintenance or an interim
maintenance in favour of a wife will be cancelled even after being provided in her favour by the
court under section 125 of C.R.P.C, 1973. The Conditions are as follows:-

 The wife is living in adultery, or

25
  The wife is not staying with her husband without showing sufficient reason for such
action.

 The husband or wife are living separately by mutual consent.

Here regarding the second point and the first point of the above mentioned conditions, in the
definition of wife divorced wife will not fall. Now say when the order of maintenance was
passed the wife was not divorced but after she got maintenance subsequently she got divorced
from her husband. Now the basis of adultery is that it is an offence done with a married woman
against the will or consent of the husband of that married women. Now in case of a divorced
women whose marriage has been dissolved by a valid decree of divorce from a court of
competent jurisdiction in terms of the personal law of the concerned parties, the status of being
married no longer exists as soon as such court of competent jurisdiction provides such decree of
divorce. Now when the divorced women after the divorce is provided loses her marital status,
then there is no question of adultery, as after divorce she is free to establish physical relationship
with anyone within the legal limits. If divorced women were to be denied continuation of
maintenance under this condition of adultery then indirectly the stipulation provides that if the
divorced women were to continue to avail maintenance then even after getting divorced under
personal law she cannot be establishing any sexual relationship with another person (who is not
her divorced husband) without the consent of her divorced husband as otherwise it would be
adultery. This stipulation is problematic as after divorce she is free to establish physical
relationship with anyone within the legal limits.

The 2nd condition also cannot be invoked in case of a divorced women. If divorced women were
to be denied maintenance here under this condition that if she is not staying with her husband she
will not continue getting maintenance, then indirectly the stipulation provides that if the divorced
women were to continue to avail maintenance then even after getting divorced under personal
law she will have to stay with her divorced husband. This stipulation is problematic as after
getting divorced under personal law she cannot be forced to stay with her divorced husband as
she is totally free to live on her won or with someone else within the legal limits.

Section 127(3) applies for setting aside of maintenance order in case of divorced women and the
conditions are:-

26
  the woman has, after the date of such divorce, remarried.

 she had voluntarily surrendered her rights to maintenance after her divorce.

 she has received, whether before or after the date of the order of maintenance, the whole
of the sum which, under any customary or personal law applicable to the parties, was
payable on such divorce.

Q3c) Who are the persons entitled to get maintenance under CrPC?

A3c) The provisions for Maintenance are contained in Chapter IX of C.R.P.C, 1973 and they
extend from sections 125 to section 128. According to section 125 any person who inspite of
possessing sufficient means neglects or refuses to maintain the people who are entitled to claim
and get maintenance from that ―any person‖, may be ordered to pay maintenance (monthly
allowance) to those people by a first class magistrate, provided there is proff of such neglect or
refusal. The word ―any person‖ here includes a father, or a son or a husband but it does not
include a daughter or mother or wife. However a married daughter is included in this term.

The word ―sufficient means‖ does not imply only visible means such as real property or
employment but also the reference to earning capacity. It actually refers to the earning capacity
of a man and if a man is healthy physically and mentally then he is presumed to be possessed
with means to support his wife or children even if he is unemployed. Even omission on behalf of
the wife to point out that the husband has got sufficient means does not take away her right to get
maintenance. ―Refusal‖ to maintain may be express or it may be implied. It may be words
spoken or may be conduct. But once the prove is there that any person has neglected or refused
to maintain the people who can get maintenance , then the magistrate can give order under
section 125.

The following are the people who can get maintenance under section 125 of C.R.P.C, 1973:-

 A wife who is unable to maintain herself. In this definition of the term wife, divorced
wife is also included and she is entitled to maintenance till she remarries again.

 Legitimate or illegitimate minor child, whether married or not, who is unable to maintain
herself. The magistrate if satisfied that the husband of a minor female child does not have

27
 sufficient means to maintain her, then it may order the father of such minor female child
to maintain her until she attains majority.

 Legitimate or illegitimate child (except a married daughter) who is major, but who by
reason of any physical or mental abnormality or injury is unable to maintain itself.

Q3d) When can the maintenance allowance be altered?

A3d) The maintenance allowance can be altered under the following circumstances:-

1. On proof of a change in the circumstances of any person, receiving, under section 125 a
monthly allowance for the maintenance or interim maintenance, or ordered under the
same section to pay a monthly allowance for the maintenance, or interim maintenance, to
his wife, child, father or mother, as the case may be, the Magistrate may make such
alteration, as he thinks fit, in the allowance for the maintenance or the interim
maintenance, as the case may be. Provided that if he increases the allowance, the monthly
rate of five hundred rupees in the whole shall not be exceeded.
2. Where it appears to the Magistrate that, in consequence of any decision of a competent
civil Court, any order made under section 125 should be cancelled or varied, he shall
cancel the order or, as the case may be, vary the same accordingly.
3. Where any order has been made under section 125 in favour of a woman who has been
divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is
satisfied that—
I. the woman has, after the date of such divorce, remarried, cancel such order as
from the date of her remarriage;
II. the woman has been divorced by her husband and that she has received, whether
before or after the date of the said order, the whole of the sum which, under any
customary or personal law applicable to the parties, was payable on such divorce,
cancel such order—
a. in the case where such sum was paid before such order, from the date on
which such order was made,
b. in any other case, from the date of expiry of the period, if any, for which
maintenance has been actually paid by the husband to the woman;

28
 III. the woman has obtained a divorce from her husband and that she had voluntarily
surrendered her rights to maintenance as interim maintenance, as the case may be
after her divorce, cancel the order from the date thereof.
4. At the time of making any decree for the recovery of any maintenance or dowry by any
person, to whom a monthly allowance for the maintenance and interim maintenance or
any of them has been ordered to be paid under section 125, the civil Court shall take into
account the sum which has been paid to, or recovered by, such person as as monthly
the
allowance for maintenance and interim maintenance or any of them, as the case may
be, in pursuance of the said order.

Q4a) What particulars are required to be stated in a charge?

A4a) The charge is the establishment of the allegation(s) against the accused in a criminal case.
The inspiration behind a charge is to inform an accused individual, precisely and succinctly of
the issue with which he is charged. It must pass on to him with adequate clearness and certainty,
what the prosecution expects to prove against him and which he should protect. The fundamental
principle of criminal law is that the accused ought to be informed with certainty and precision the
exact nature of the charge leveled against him. Section 2 (b) of the Cr.P.C which reads as
follows:- ― In this Code, unless the context otherwise requires, – (b) charge includes any head of
the charge when the charge contains more head than one‖. According to Section 2 (b) of Cr.P.C,
when a charge contains more than one heads, the head of charges is likewise a charge.

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. A charge must contain the following
contents –

1. Offence to be stated – In a charge sheet, the offense must be expressed, so that the accused
may shield him.

2. Description of Offence by Name – The Charge ought to depict offense by name which is given
by that the creates an offense.

3. Definition of offense – Where the criminal law does not give any specific name to the offense
than a definition/ meaning of the offense must be expressed.

29
4. Law or Section of Law – A charge must contain the law or the section of the law against
which the offense is asserted to have been committed.

5. Compliance with substantive Requirements of offense – The charge must fulfill the
requirements of offense, i.e., which it must not come within the exceptions, or if it comes, then it
must be mention in it.

6. The language of the Charge – The charge shall be framed in English or the Court‘s language
or the language understandable by an accused.

7. Previous conviction of the accused – Where the accused is liable to enhanced punishment by
virtue of his previous conviction and such previous conviction has to be proved; such charge
might state the fact, date, and place of the previous conviction.

8. Particulars as to time Place and Person – It is necessary that charge ought to contain Time of
offense, Place of offense, Person against whom the offense was committed and Thing against
whom the offense was committed.

9. Particulars of the Manner of the alleged offense – Where the particulars above are not
sufficient to give notice of the offense with which the accused is charged, the charge shall
likewise contain the particulars of the way in which the alleged offense was committed.

10. Thing is Respect of which offense was committed – A charge should express the property in
respect of which not is said to have been taken place, for example where an offense is committed
under Arms Ordinance, details of the arms recovered from the house of the accused must be
stated in the charge.

Q4b) What is the difference between charge and charge-sheet?

A4b) The points of differences and distinction between charge and charge-sheet are as follows:-

 A Charge is a formal document stating the offence committed by the accused, while, a
Charge-sheet is a report submitted by a police officer.
 Charge is framed by the Magistrate looking into the case. Charge-sheet is framed by the
police.

30
  From the above mentioned points, it may be gathered that charge is judicial in nature
whereas charge-sheet is non-judicial in nature.
 Charge is always framed after inquiry. Charge-sheet is framed only after investigation of
the case.
 Charge is thus, followed by trial and charge-sheet is followed by inquiry.

Q4c) What is the effect of error or omission in a charge?

A4c) 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 accused. 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 defense & 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 him.
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. Section 215 makes it clear that no error or omission in stating either the
offence or the particulars required to be stated shall be regarded as material unless the accused
was in fact misled by such error or omission and it was occasioned a failure of justice.

A is charged under Section 242 of the Indian Penal Code, 1860, with ―having been in possession
of counterfeit coin, having known at the time when he became possessed thereof that such coin

31
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.

Q5a) What do you mean by Plea Bargaining?

A5a) Plea bargaining is essentially derived from the principal of 'Nalo Contendere' which literary
means 'I do not wish to contend'. The Apex Court has interpreted this doctrine as an "implied
confession, a quasi-confession of guilt, a formal declaration that the accused will not contend, a
query directed to the court to decide a plea guilt, a promise between the Government and the
accused and a government agreement on the part of the accused that the charge of the accused
must be considered as true for the purpose of a particular case only. It has been introduced in the
criminal procedure code in the chapter XXI A wide criminal law (amendment) Act 2005.This
has change the prospect & the face of the criminal justice system. It is not applicable in cases
where the offence is committed against a women or a child below the age of 14 years. Also once
the court passes an order in the case of plea bargaining, no appeal shall lie to any court against
the order.

"Plead Guilty or bargain for lesser sentence" is the straight & shortest possible meaning of plea
bargaining. Plea bargaining refers to pre - trail negotiation between the defendant usually
conducted by the counsel & the prosecution during which the defendant agrees to plead guilty in
the exchange for certain concessions by the prosecutor. Plea bargaining is the result of modern
judicial thinking before the introduction of plea bargaining most courts used to ignore Plea
Bargaining. The concept of Plea Bargaining was not recognized in jurisprudence of India.
However accused used to plead guilty only for petty offences & pay small fine whereupon the
case is closed.

Q5b) Discuss the circumstances that necessitated the incorporation of a separate chapter
on plea bargaining in CrPC?

A5b) In the Jury System, the need for plea bargaining was not felt because there was no legal
representation. Later on, in 1960 legal representation was allowed and the need for Plea
Bargaining was felt. Although the traces of the origin of the concept of Plea Bargaining is in
American legal history. This concept has been used since the 19th century. Judges used this

32
bargaining to encourage confessions. Plea Bargaining is not an indigenous concept of Indian
legal system. It is a part of the recent development of Indian Criminal Justice System (ICJS). It
was inculcated in Indian Criminal Justice System after considering the burden of long-standing
cases on the Judiciary.

The law commission of India advocated the introduction of Plea Bargaining in the 142th, 154th
& 177th reports. The 154th Report of the Law Commission was first to recommend the ‗plea
bargaining‘ in Indian Criminal Justice System. It defined Plea Bargaining as an alternative
method which should be introduced to deal with huge arrears of criminal cases in Indian courts.
Then under the NDA government, a committee was constituted which was headed by the former
Chief Justice of the Karnataka and Kerala High Courts, Justice V.S.Malimath to tackle the issue
of escalating number of criminal cases. The Malimath Committee recommended for the plea
bargaining system in India. The committee said that it would facilitate the expedite disposal of
criminal cases and reduce the burden of the courts. Moreover, the Malimath Committee pointed
out the success of plea bargaining system in the USA to show the importance of Plea Bargaining.
Accordingly, the draft Criminal Law (Amendment) Bill, 2003 was introduced in the parliament
and finally it became an enforceable Indian law from enforceable from July 5, 2006. It sought to
amend the Indian Penal Code 1860 (IPC), the Code of Criminal Procedure, 1973 (CrPC) and the
Indian Evidence Act, 1892 to improve upon the existing Criminal Justice System in the country,
which is inundate with a plethora of criminal cases and overabundant delay in their disposal on
the one hand and very low rate of conviction in cases involving serious crimes on the other. The
Criminal Law (Amendment) Bill, 2003 focused on following key issues of the criminal justice
system:-

(i) Witnesses turning hostile

(ii) Plea-bargaining

(iii) Compounding the offense under Section 498A, IPC (Husband or relative of husband of a
woman subjecting her to cruelty) and

(iv) Evidence of scientific experts in cases relating to fake currency notes.

33
Finally, it introduced Chapter XXIA Section 265A to 265L and brought the concept of plea
bargaining in India. In Murlidhar Meghraj Loya vs State of Maharashtra The Hon‘ble
Supreme Court criticized the concept of Plea Bargaining and said that it intrudes upon the
society‘s interests. In Kasambhai vs State of Gujarat & Kachhia Patel Shantilal Koderlal vs
State of Gujarat and Anr, the Apex court said that the Plea Bargaining is against public policy.
Moreover, it regretted the fact that the magistrate accepted the plea bargaining of accused.
Furthermore, Hon‘ble Court described this concept as a highly reprehensible practice.

Q5c) How can an application for plea bargaining be made before the court?

A5c) Any accused person above the age of 18 years and against whom a trial is pending,
can file an application for plea bargaining. But, there are some exceptions to this general rule and
they are as follows:-
1. The offence against the accused should carry a maximum sentence of less than 7 Years.
2. The offence should not have been committed by the accused against a woman or a child below
the age of 14 years.
3. The accused should not have been covered under Section 2(k) of the Juvenile Justice (Care
and Protection of Children) Act, 2000.
4. The accused should not have earlier been convicted for same offence.
5. The offence should not affect the socio economic condition of the country.

An application for plea bargain may be made by an accused when:-

(a) The report has been forwarded by the officer in charge of the police station under s. 173
Cr.P.C. alleging therein that an offence appears to have been committed by him other than an
offence for which the punishment of death or of imprisonment for a term exceeding seven years
has been provided under the law for the time being in force; or

(b) A Magistrate has taken cognizance of an offence on complaint, other than an offence for
which the punishment of death or of imprisonment for life or of imprisonment for a term

34
exceeding seven years, has been provided under the law for the time being in force, and after
examining complaint and witnesses under Section 200, issued the process under s. 204.

Section 265-B contemplates an application for plea bargaining to be filed by the accused which
shall contain a brief details about the case relating to which such application is filed, including
the offences to which the case relates and shall be accompanies by an affidavit sworn by the
accused stating therein that he has voluntarily preferred the application, the plea bargaining the
nature and extent of the punishment provided under the law for the offence, the plea bargaining
in his case that he has not previously been convicted by a court in a case in which he had been
charged with the same offence. The court will thereafter issue notice to the public prosecutor
concerned, investigating officer of the case, the victim of the case and the accused for the date
fixed for the plea bargaining. When the parties appear, the court shall examine the accused in-
camera wherein the other parties in the case shall not be present, with the motive to satisfy itself
that the accused has filed the application voluntarily.

Section 265-C prescribes the procedure to be followed by the court in working out a mutually
satisfactory disposition. In a case instituted on a police report, the court shall issue notice to the
public prosecutor concerned, investigating officer of the case, and the victim of the case and the
accused to participate in the meeting to work out a satisfactory disposition of the case. In a
complaint case, the Court shall issue notice to the accused and the victim of the case.

Section 265-E prescribes the procedure to be followed in disposing of the cases when a
satisfactory disposition of the case is worked out. After completion of proceedings under S. 265
D, by preparing a report signed by the presiding officer of the Court and parities in the meeting,
the Court has to hear the parties on the quantum of the punishment or accused entitlement of
release on probation of good conduct or after admonition. Court can either release the accused on
probation under the provisions of S. 360 of the Code or under the Probation of Offenders Act,
1958 or under any other legal provisions in force, or punish the accused, passing the sentence.
While punishing the accused, the Court, as its discretion, can pass sentence of minimum
punishment, if the law provides such minimum punishment for the offences committed by the

35
accused or if such minimum punishment is not provided, can pass a sentence of one fourth of the
punishment provided for such offence.

Q5d) What are the necessary contents of a Judgement?

A5d) Judgement is the adjudication by the court that the accused is guilty or not guilty of
the offense charged and the imposition on him of the proper penalty and civil liability, if
any. It must be written in the official language, personally and directly prepared by the judge
and signed by him and shall contain clearly and distinctly a statement of the
facts and the law upon which it is based.

If the judgment is of conviction, it shall state the following:

a. The legal qualification of the offense constituted by the acts committed by the accused and
the aggravating and mitigating circumstances which attended the commission

b. The participation of the accused as principal, accomplice, or accessory

c. The penalty imposed upon the accused

d. The civil liability or damages, if any, unless the enforcement of the civil liability
has been reserved or waived by the offended party.

If the judgment is of acquittal it shall state the followings:-

a. Whether the evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove it beyond reasonable doubt

b. If the act or omission from which the civil liability might arise doesn‘t exist

36
Judgement has to follow certain requirements and they are:-

1. It must be written in the official language and

2. It shall be personally and directly prepared by the judge and signed by him.

3. It shall contain the point or points for determination, the decision thereon and the reasons for
the decision and

4. It shall contain clearly and distinctly a statement of the facts and the law upon which it is
based.

5. When the conviction is under the Indian Penal Code (45 of 1860) and it is doubtful under
which of two sections, or under which of two parts of the same section, of that Code the offence
falls, the Court shall distinctly express the same, and pass judgment in the alternative.

6. When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons
for the sentence awarded and, in the case of sentence of death, the special reasons for such
sentence.

7. When the conviction is for an offence punishable with imprisonment for a term of one year or
more, but the Court imposes a sentence of imprisonment for a term of less than three months, it
shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment
till the rising of the Court or unless the case was tried summarily under the provisions of this
Code.

8. When any person is sentenced to death, the sentence shall direct that he be hanged by the neck
till he is dead.

9. Every order under Section 117 or sub-section (2) of Section 138 and every final order made

37
under Section 125, Section 145 or Section 147 shall contain the point or points for determination,
the decision thereon and the reasons for the decision.

Q5e) Briefly explain the mode of delivering Judgement.

A5e) Legal provisions regarding modes of pronouncing the judgment is provided under section
353 of the Code of Criminal Procedure, 1973. The following points are required to be noted in
case of mode of delivering judgements and they are:-

(1) The judgment in every trial in any criminal Court or original jurisdiction shall be pronounced
in open Court by the presiding officer immediately after the termination of the trial or at some
subsequent time of which notice shall be given to the parties or their pleaders:-

(a) By delivering the whole of the judgment; or

(b) By reading out the whole of the judgment; or

(c) By reading out the operative part of judgment and explaining the substance of the judgment
in a language which is understood by the accused or his pleader.

(2) Where the judgment is delivered under clause (a) of sub-section (1) of Section 353 of the
Code, the presiding officer shall cause it to be taken down in short-hand, sign the transcript and
every page thereof as soon as it is made ready, and write on it the date of the delivery of the
judgment in open Court

(3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of
sub-section (1) of Section 353 of the Code as the case may be, it shall be dated and signed by the
presiding officer in open Court, and if it is not written with his own hand, every page of the
judgment shall be signed by him.

(4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1) of
Section 353 of the Code, the whole judgment or a copy thereof shall be immediately made
available for the perusal of the parties or their pleaders free of cost.

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(5) If the accused is in custody, he shall be brought up to hear the judgment pronounced.

(6) If the accused is not in custody, he shall be required by the Court to attend to hear the
judgment pronounced, except where his personal attendance during the trial has been dispensed
with and the sentence is one of fine only or he is acquitted.

Q5f) What is the purpose of the search and seizure process?

A5f) Law enforcements depend on legally sanctioned interference with individual rights. Every
citizen has a vital interest in preserving a reasonable relationship between individual liberties and
law enforcement in view of the intolerable alternatives which are possible. If the officer has
unrestrained authority to ignore personal liberties, the product is police State; if he is barred from
any interference with private rights, the result is criminal anarchy..... In order to avert these
alternatives perils and their intermediate gradations, it is the responsibility of the judge and law
maker to establish rules for law enforcement which will give society maximum protection from
the criminal with a minimum of interference with individual liberties.
Gradually, it came to be recognized that the power of search and seizure was a necessary power
in the interest of the community and without it, the process of law enforcement might suffer to
the detriment of public interest In India too, the power of search and seizure for prevention and
Investigation of offences was for the first time conferred under the Code of Criminal Procedure
and since search and seizure is a process exceedingly arbitrary in character, stringent statutory
conditions were imposed on the exercise of the power.
Term ―search‖ as applied to searches and seizures is an examination of a man‘s house or other
buildings or premises, or of his person, with a view to the discovery of contraband or illicit or
stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for
some crime or offence with which he is charged. Seizure contemplates a forcible dispossession
of the owner and it is not a voluntary surrender. The Constitutional guarantees do not forbid
reasonable searching and seizures but forbid only unreasonable searches and seizure What
constitutes a reasonable or unreasonable search and seizure in any particular case is purely a
judicial question determinable from a consideration of the circumstances involved, including the
purpose of the search, the presence or absence of probable cause, the manner in which search and

39
seizure was made, the place or thing searched. The character of the articles procured the nature
and importance of the crime suspected.
In India, the best example of the statutory power of search and seizure and the regulation thereof
by the statute is the power under certain sections of the Code of Criminal Procedure. Apart from
the power of search and seizure in relation to particular matters or in special circumstances, the
general provisions we have is the one made in Section 93, of the Code of Criminal Procedure.
Under the said where any Court has reason to believe that person to whom a summons or order
or a requisition has been or might be addressed, will not or would not produce the document or
things as required by such summons or requisitions, or where such document or thing is not
known to the court to be in the possession of any person, or where the Court considers that the
purposes of any enquiry, trial or other proceeding under the Code will be served by a general
search of inspection, it may issue a search warrant. Section 93(2) empowers the court which
issued a search warrant to restrict the same in such manner as it may think fit. Section 100 (4) to
(8) of the code contains detailed provisions regarding the manner in which a search could be
conducted. All such searches and searches conducted pursuant to and in accordance with the
terms of a warrant issued by a Magistrate. The documents or things searched are also produced
before the Magistrate whereafter they will be used as evidence in connection with some
proceeding in accordance with some proceeding in accordance with the provisions general or
special of the Evidence Act. With reference to investigations into offences, the provisions of the
Code of Criminal Procedure authorizes a search by an investigating police office even without
obtaining a search warrant from a Magistrate in cases of emergency subject to certain strict
conditions such as the previous recording of the reasons by the investigating officer and
subsequent submission by him of a report of the result of the search to the judicial Magistrate.
Such searches are also governed by the general provisions contained in Section 100 of the Code.

Q5g) Explain ―Search without warrant with case laws‖.

A5g) A search warrant is a court order that a magistrate, Judge or Court issues that authorizes
law enforcement officers to conduct a search of a person, location or vehicle for evidence of a
crime and to confiscate illegal items or evidence of crime, if they find any. In order to get a
search warrant, the police must convince a judge that there is evidence of a crime at that place
40
and if the judge is convinced, he shall issue a warrant and the warrant must be very specific, as it
should clearly state where exactly the search should take place, including a specific date and
time. In India, Article 19 (Right to Freedom) and Article 20(3) (Protection against Self
Incrimination) of the Indian Constitution give protection to the accused person against testifying
against themselves which implies protection of citizens from unreasonable searches.

Section 165 of the code has been enacted as an exception to the general law of searches because
it is recognized that in certain exceptional emergencies it is necessary to empower police officer
to carry out searches without first applying to the courts for authority. The circumstances in
which a police officer does not need a search warrant to conduct a search are stated in section
165, and they can be summarized in the following points which are as follows:-

1) Whenever an officer in charge of a police station or a police officer making an investigation

has a reasonable grounds to believe that anything necessary for the purpose of an investigation
into any offence which he is authorized to investigate may be found in any place and that thing
cannot in his opinion be obtained without undue delay without a search, such officer may search
for such thing in any place within the limits of such station.

2) Police officer proceeding under sub section (1), shall if practicable, conduct the search in
person.

3) If police officer is unable to conduct the search in person and there is no other person
competent to make the search present at the time, he may, after recording in writing his reasons
for so doing, require any officer subordinate to make the search and order him to search for such
thing in such place.

4) If a police officer remained outside the house while the search was being made inside by some
subordinate officer, the search was not held to be illegal.

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5) Copies of any record made under sub section (1) shall be sent to the nearest magistrate
empowered to take cognizance of the offence.

As a search warrant is drastic invasion upon the privacy of a person, the code has imposed
certain limitations upon these powers and they can be briefed in the following points which are:-
1) The document or the thing being searched for must be distinctly specified.
2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search
warrant with a respect to a document of postal authority.
3) The magistrate must exercise his judicial discretion while issuing search warrant.
4) Search and seizure should be made in compliance with the provision to section 100 of CrPC.

In the case of M.P. Sharma and others Vs. Satish Chandra, District Magistrate, Delhi & others
, it was held by the Apex Court that Article 19(1)(f) of the Constitution of India declares the right
of all citizens to acquire, hold and dispose of property subject to the operation of any existing or
future law in so far as it imposes reasonable restrictions, on the exercise of any of the rights
conferred thereby in the interests of general public.

Q5h) Write Down how summons are made to accused and witness.

A5h) For the Appearance of Accused and of Witnesses Summons is one of the primary methods.
Summons is not only issued for appearance of Accused and Witnesses but also for the
production of a document or thing. Section 61 of the Code of Criminal Procedure clearly
indicates the valid requirements and the proper form of issuing Summons and they are:-

 Every Summons issued by a Court must be in Writing.

 Such Summons must be signed by the Presiding Officer of the Court issuing it or by such
other Officer as the High Court may by rule direct.

 Such Summons must clearly bear the seal of the Court issuing it.

 Such Summons must also be made in Duplicate.

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  Such Summons must show the name and address of the person summoned.

 They must also show the place at which and the date and time when the person
summoned is required to appear before the court.

 They must contain the place, time and nature of the offence committed.

Until and unless the above requirements are properly complied with the Summon issued is
invalid and illegal. Every Summons issued by a competent Court is to be served and Section 62
mentions how such Summons is to be served. According to Section 62 Every Summons shall be
served by:-

 A Police Officer or,

 By an Officer of the Court issuing it provided the State Government empowers such
Officer through rules or,

 By a Public Servant.

The summons as much as possible and practicable shall be served personally to the person
Summoned by delivering to him one of the duplicates of the Summons. The Serving Officer may
obtain a sign of receipt on the back of the other Duplicate of the Summon issued from the Person
Summoned and if such request of Sign of Receipt is made by the Serving Officer to the person
Summoned then he shall sign on such request as it is an evidence of service. If the person to be
summoned is in abroad, then the Court can send Summon to the Concerned Embassy Official for
the purpose of serving of such Summons. Officers of Indian Embassy working abroad are
certainly ―Public Servants‖ who can serve Summons. Section 63 describes the method of service
of Summons to societies and Corporate Bodies. Service of a summons on a corporation may be
completed by serving it on the secretary, local manager or other principal officer of the
corporation or, Service of a summons on a corporation may be completed by letter sent by
registered post, addressed to the chief officer of the corporation in India, and such service of

43
summons shall be deemed, to have been Completed when the letter would arrive in ordinary
course of post.

Section 64 mentions the Procedure when the person to be summoned is not being able to found.
According to this section if the person to be summoned cannot be found after proper diligence
then the summon may be served by leaving one of the duplicates for him with some adult male
member of his family residing with him. Such adult male member shall sign a receipt on the back
of the other Duplicate of the Summon issued if the Serving Officer requests such sign of receipt
as a token of evidence of service. For the purpose of this Section a servant is not a member of the
Family. Moreover this Section provides a solution where personal service as provided in section
62 cannot be effected then through this section service of summons can be effected by serving
such summons on some Adult male member of the family.

If the Service of Summons cannot by proper diligence be effected as provided in section 62,
section 63 or section 64, then according to Section 65 the serving officer shall affix one of the
duplicates of the summon in a part of the house (where the person summoned ordinarily resides)
which is normally visible to reasonable people. Thereupon the Court, after making such inquiries
as it thinks fit, may either declare that the summons has been duly served or order fresh service
in such manner as it considers proper.

When the person to be summoned is in Government Service then according to Section 66 the
Court issuing such Summon shall send it in duplicate to the head of the office where such person
is employed. The head shall then cause the summons to be served in the manner provided
according to section 62, and shall return it to the Court under his signature with the endorsement
required by that section as such signature is the evidence of due service.

Q6a) What do you mean by trial?

A6a) A criminal trial is designed to resolve accusations brought (usually by a government)

against a person accused of a crime. In common law systems, most criminal defendants are
entitled to a trial held before a jury. Because the state is attempting to use its power to deprive

44
the accused of life, liberty, or property, the rights of the accused afforded to criminal defendants
are typically broad. The rules of criminal procedure provide rules for criminal trials. Trial is a
proceeding which involves examination and determination of a cause by a judicial tribunal, and
which ends in conviction or acquittal of the accused. Trial is the examination and determination
of a cause by a judicial tribunal which has jurisdiction over it. Trial is the third stage in a
criminal case.

Q6b) State the procedure of trial held by the Session’s Judge or before a court of session.

A6b) Sessions Court is the court that deals with criminal cases at a district level. To be more
precise, it deals with the more serious warrant cases. It cannot take cognizance directly of any
offense except in cases of defamation as given u/s 199 of CrPC. In rest other, a competent
magistrate takes cognizance and commits the case to the court for trial. This is the stage where
mainly trials coupled with evidence, arguments, the cross-examination (basically all the fun part
of being an advocate) takes place. Chapter-XVIII, Sec.225-237 of the Code of Criminal
Procedure, 1973 substantially deals with the procedure for trial before a Sessions Court. The
stages of trial before a court of session can be summarized as follows:-

1. INITIAL STAGE OF TRIAL:-

All the process can be explained simply by an example. Imagine a courtroom with prosecution
[being a public prosecutor (Sec. 225)] on one and defense (represented by one the accused
chooses or the court appoints) on the other side. It is the duty of the court to provide accused
with all the necessary copies of documents for their perusal. Since prosecution is the one
accusing, (when the case in pursuance to Sec.209 is brought), he is the one who will be initiating
the case proceeding with the pieces of evidence to prove the guilt of accused while describing the
charges against him (Sec.226). This is mere to determine whether the trial is to be affected or
not. One thing to note here is that prosecution is not under any duty to make the accused be
present and hence his absence will not lead to his acquittal. It is the duty of the court to secure it.

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If after this, the judge considers that there is no case against the accused by prosecution, he will
discharge the accused vide Sec.227 of CrPC (this clause merely ensures that a person is not
harassed with a prolonged, unnecessary trial giving reasons (to aid the superior court in case of
appeal in determining the correctness and sufficiency of reasons for acquittal). The Hon`ble
Supreme Court in the case of Union of India v. Prafulla Kumar Samal, has enumerated 4
principles to be kept in mind when the accused is to be discharged u/s 227, the gist of which is a
prima facie case should be made against the accused the test of which will vary from case to
case. But if the presumption of the commission of offense arises then there are 2 scenarios vide
Sec. 228:-

a. If that Court of Session can exclusively try the matter at hand, charges in writing by the court
shall be framed [228(1)(b)]

b. If the Court of Session cannot exclusively hold the trial, meaning thereby another court has the
jurisdiction to try this case at hand, then session court shall transfer the case to the appropriate
CJM or JM of First Class [228(1)(a)]

Under section 228, another important point to note is that if charges are framed as above given,
they are to be explained to the accused in the language and manner he will understand (though a
violation of it will not vitiate the further proceedings.) Then, the accused will be asked if he
pleads guilty to the offenses he is charged with or not [(228(2))]. The Stage at Sec.227 and 228
plus the presumption so as to lead to framing of charge(s) as mentioned above can be the result
of even a strong suspicion since court possesses a very wide discretion to determine sufficiency
of grounds available i.e. whether they are so as to require the framing of charge(s). Sec.228 (1)
and Sec.227 ensure that no frivolous accusation is made or that no trial takes place without any
material. Sec.227 and 228 are inter-related since the principles that are to be followed under
section 227 to discharge an accused can also be made applicable to the framing of charges. In
case of the framing of charges, reasons for doing so need not be given. They are to be explained
though, still if not, this won`t necessarily vitiate the trial.

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2. THE SECOND STAGE OF TRIAL:-

Under section 229, an accused can plead guilty of an offense either himself or if allowed to
appear by a pleader, then through him, in unambiguous terms. He can be convicted based on it
except in cases where the offense in question is punishable by death or life imprisonment where
there is a form of reluctance to convict based on such plea. If a conviction is done, then any right
of appeal against such conviction stands curtailed. For conviction on the basis of such plea, it is
held by the Hon`ble Supreme Court to be essential that the accused be confronted with the
substance of allegations against him. If no such pleading or conviction under 229 is made/done,
the court vide Section 230 shall fix a date for examination of witnesses or may compel the
attendance of any witness or production of any documents the prosecution may need. Under
section 231, the court is to take all evidence produced and allow any cross-examination as
mentioned in its clause (2).

3.THIRD STAGE OF TRIAL:-

Under section 232, the court may acquit the accused if no evidence/legal proof indicating his
involvement in the said offense appears/presented. If no acquittal, then under section 233,
accused presents his case, may in writing or otherwise, can produce evidence, witness just like
the prosecution. However, this can be denied if it appears that they are being presented only to
cause inordinate delay etc. Hence, non-compliance with this section does not necessarily vitiate
the proceeding. Section 315 considers an accused to be a competent witness as well. Sec. 234
and 314 both deal with who shall give the closing arguments. Being a specific provision, 234
prevails if any conflict arises hence if Sec. 314 applies, defense gives the closing argument but if
234 does, the prosecution sums up, defense replies after him.

After conviction, under section 235, the accused shall be heard with regard to the sentence etc.(as
given from Sec. 353-365) and then will be sentenced unless Sec. 360 of CrPC applies. This gives
the accused a right of pre-sentence hearing which will at the most have a bearing on the choice of

47
sentence but has to be followed in letter and spirit otherwise it is a violation of natural justice.U/s
236, in case of a previous convict, the court may call for evidence on that matter and record
finding. This helps in case the accused is liable to enhanced punishment. Lastly, Section 237
deals with procedure in cases of defamation of high dignitaries and public servants to prevent
vindication of the conduct of such officials. However, provision for compensation to the accused
to prevent false accusation is made as well.

Q6c) Discuss the procedure of a warrant case instituted otherwise than on police report.

A6c) Procedure in the trial of a warrant case instituted otherwise than on police report
In warrant cases instituted otherwise than on a police report, when the accused appears or is
brought before the Court, the magistrate must at once proceed to hear the complainant and take
all such evidence as may be produced in support of the prosecution. The magistrate is further
required to ascertain from the complainant or otherwise, the names of any persons likely to be
acquainted with the facts of the case and to be able to give evidence for the prosecution, and
must summon such persons and take their evidence. The absence of the complainant, where there
is one, does not affect the proceedings except in a case instituted upon complaint which may be
lawfully compounded, and the Court can compel his attendance, if necessary. Thus, in a warrant
case it is the duty of the magistrate to cause the production before him of all material evidence
for the prosecution, and to hear it. In the exception above alluded to, the magistrate has power to
discharge the accused on the complainant making default.

After taking the evidence and making such examination of the accused as he may think
necessary, if no case is made out which, if unrebutted would warrant a conviction, the magistrate
should discharge the accused, and record his reasons for doing so. If, however, at any previous
stage of the case the magistrate considers the charge to be groundless, he may record his reasons
for that opinion, and discharge the accused. If a prima facie case is made out which the
magistrate is competent to try and which he considers could be adequately punished by him, he
should frame a charge. If the magistrate is not competent to try the case made out or considers
that he cannot adequately punish the accused if convicted he should proceed.

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The charge should be read out, and explained to the accused, and he should be asked to plead to
it. If the accused refuses to plead or pleads not guilty he should be required to state at the
commencement of the next hearing of the case, or if the Magistrate for reasons to be recorded in
writing so thinks fit, forth-with whether he wishes to crossexamine any of the witnesses for the
prosecution whose evidence has been taken before the framing of the charge. If he says that he
does so wish, the magistrate should proceed as directed by section 256 of the Code. After this
stage the procedure for the trial would be very much the same as in a warrant case instituted on
police report. In this connection please see Sections 252 to 259 of the Code.

Q7a) What do you understand by the term ―Anticipatory Bail‖.

A7a) The words anticipatory bail has not been defined in the CrPC. The expression
―anticipatory bail‖ is a misnomer and the order becomes operative only on an arrest. The Crpc
provides that a person who has reasonable belief that he may get arrested for a non-bailable
offence then he may apply to sessions court or the high court to get a direction for grant of
anticipatory bail under section 438 of Code of Criminal Procedure.

The court while granting the anticipatory bail has to consider the following factors -

 Nature and gravity of accusation,

 The antecedents of the applicant including the fact as to whether he has previously
undergone imprisonment on conviction by a Court in respect of any cognizable offence,

 The possibility of the applicant to flee from justice, and.

 Where the accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested, Either reject the application forthwith or issue an
interim order for the grant of anticipatory bail.

Further, if the sessions court or the high court does not pass any interim order under section 438
of CrPC or does not grant the anticipatory bail then the police officer has the authority to arrest
such person without a warrant on the basis of the accusation apprehended in such application.

Anticipatory bail is required when a person is under the apprehension that he can be arrested for
a non-bailable offence. For instance, if a person is married and his wife files a case under Section

49
498A of IPC then he is under the apprehension that he may be arrested thus, he can apply for
anticipatory bail either before sessions court or high court. The object of the arrest of accused is
to secure his presence in the court during a trial but if the presence of accused can be secured in
any other way than arrest then it is just an unfair to arrest such person as it will deprive the
accused of his Right to liberty. The provisions regarding the release of the accused person on
anticipatory bail is aimed at ensuring the presence of accused at his trial but without
unreasonably and unjustifiably interfering with his liberty.

Q7b) Under what circumstances can Anticipatory bail be granted?

A7b) Crpc provides that if a person has reasonable belief and fear that he may get arrested for a
non-bailable offence then he may apply to sessions court or the high court to get a direction for
grant of anticipatory bail under section 438 of Code of Criminal Procedure. The idea behind
anticipatory bail was to prevent persons from unreasonable arrest. So, the onus of reasonability
also applies to the one seeking anticipatory bail. In other words, the applicant must have a logical
―reason to believe‖ that he might be arrested. In the case of Adri Dharan Das v. State of West
Bengal, the court ruled that the reason to believe must be based on reasonable grounds and not
on any whims and fancies of the applicant. This same idea was referred to in an earlier Supreme
Court case in the case of Jaswantbhai Sheth v. Anand Nagarshet, in which the petitioner was
seeking anticipatory bail on the presumption that he might be arrested even though he was not
named in the FIR. The court decided that this is not a valid enough or reasonable ground to claim
anticipatory bail.

The hon‘ble Supreme Court, after hearing several cases over the course of time has laid out a detailed
and exhaustive list of considerations, which the court must consider in determining whether to grant
anticipatory bail or not. They are as follows:-

1. The nature and gravity of the accusation and the exact role of the accused must be properly
comprehended before making the arrest.

2. The antecedents of the applicant including the fact as to whether the accused has previously
undergone imprisonment on conviction by a court in respect of any cognizable offence.

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3. The possibility of the applicant to flee from justice.

4. the possibility of the accused‘s likelihood to repeat similar or other offences.

5. Where the accusations have been made only with the object of injuring or humiliating the
applicant by arresting him or her.

6. Impact of grant of anticipatory bail particularly in cases of high magnitude affecting a large
number of people.

7. The courts must evaluate the entire available material against the accused very carefully. The court
must also clearly comprehend the exact role of the accused in the case. The responsibility on the
court increases manifold in those cases in which the accusations have been made under Sections 34
and 149 of the IPC.

8. While hearing the pleadings for grant of anticipatory bail, a balance has to be maintained between
two factors. Firstly, the courts need to ensure that the grant of anticipatory bail doesn‘t come at the
expense of free, fair and full investigation of the matter at hand. Secondly, the courts must ensure
that the accused doesn‘t undergo harassment, humiliation and unjust detention.

9. The court to consider reasonable apprehension of tampering with the evidences and witnesses or
apprehension of threat to the complainant.

10. Utmost seriousness in prosecution shall always be considered and it is only the component of
authenticity that must be considered when the question is about granting of bail and in case there
does persist some doubt as to the authenticity of the prosecution, in the normal course of events, the
accused is entitled to an order of bail.

Q7c) ―Bail may be taken in case of non-bailable offence‖-Explain.

A7c) Section 437 provides for bail in case of non-bailable offences. According to section 437(1)
a person may get released on bail in respect of non-bailable offences if the following conditions
are there:-

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  The person has been accused of or suspected of having committed any non-bailable
offence, and

 The person has been arrested or detained without warrant by an officer in charge of a
police station, or

 The person appears or is brought before a court which is not the high court or court of
session

However there are few exceptions to this above mentioned conditions because of which inspite
of the presence of this conditions the person will not get released on bail. The exceptions are as
follows:-

 When there appears reasonable grounds to believe that the person (who is accused of or
suspected of committing a non-bailable offence) has committed such a kind of non-
bailable offence which is punishable with death or imprisonment for life. Here the term
reasonable grounds means grounds which can be verified and tested by the court and
must be based on reason and rationality.

 When such person has been accused of or suspected of committing a non-bailable offence
which is also a cognizable offence and that he had been previously convicted of an
offence which is punishable with death, imprisonment for life or imprisonment for seven
years or more

 When such person has been accused of or suspected of committing a non-bailable offence
which is also a cognizable offence and that he had been previously convicted on two or
more times of a cognizable offence which is punishable with imprisonment for a
minimum term of three years and which can be extended to seven years.

However in inspite of these exceptions the court may still direct that a person who falls under
these above mentioned exceptions be released on bail if :-

i. Such person is under the age of sixteen years, or

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 ii. Such person is a woman, or

iii. Such person is sick, or

iv. Such person is infirm, or

v. The court is satisfied that it is just and proper to release that person on bail for any other
special reasons.

The section also states that the fact that the accused may be required to be identified by the
witnesses during the time of investigation shall not be hindering the grant of bail in favour of the
accused if he is legally entitled to get bail and provides an undertaking that he shall adhere the
directions of the court given in the matter. The section further provides that no person shall be
released on bail by the court without giving an opportunity of hearing to the public prosecutor
(i.e. giving the chance to the public prosecutor to state his arguments), if the non-bailable offence
alleged to have been committed by him is punishable with :-

 Death or

 Imprisonment for life or

 Imprisonment for seven years or more.

Hence the Ist exception is falling in the above mentioned point & 2nd &3rd exceptions may also
fall if the cognizable offence alleged to been committed is one which is punishable with death,
Life imprisonment, or imprisonment for 7yrs or more. Section 437(2) states that if it appears to
the related officer in charge of a police station or the concerned Court at any time during
investigation, inquiry or trial that there are no rational and justifiable grounds to believe that the
accused has done a non-bailable offence but there are presence of sufficient grounds for further
inquiry into his guilt which may be of a bailable offence , then the accused may be released on
bail if such officer or court is satisfied that the accused can be released on bail, provided that the
accused executes a bond without sureties for his appearance. The release of the accused on bail
under section 437(2) has to keep in mind Section 446-A which provides for the cancellation of

53
bail-bond if the accused does not adhere the terms of bail-bond regarding appearance as and
when required. Hence the release of an accused under section 437(2) is subject to Section 446-A.

Section 437(3) says if a person is accused or suspected of :-

 Committing a non-bailable offence punishable with imprisonment which may be

stretched to seven years or more, or

 Committing an offence relating to ―Offences against the State‖, ―Offences against the
Human Body‖, or ―Offences against Property‖ , or

 Committing an offence relating to abetment of , or conspiracy or attempt to commit any

offence relating to ―Offences against the State‖, ―Offences against the Human Body‖, or
―Offences against Property‖ ,

gets released on bail under section 437(1) then the court will also add the following conditions
along with the bail:-

 Attendance of such person in accordance with the conditions of the bail-bond.

 Restriction on that person to not commit an offence similar to the offence of which he is
accused or suspected

 Restriction on that person to not either directly or indirectly make any inducement, threat
or promise to any other person who is acquainted with the facts of the case so that this
other person is not prevented from disclosing such facts to the court or the police officer.

The above mentioned conditions are added to the bail bond in the interest of justice. The court or
a police officer releasing any person on bail under section 437(1) &(2) shall write its or his
reasons for doing so along with any special reason for doing so and shall keep a record of it.
Any person charged of a non-bailable offence may be released on bail but can be re-arrested and
committed to custody by cancelling the bail if court thinks its just to do so. In a case which the
magistrate can try, if the trial of a person accused of any non-bailable offence is not completed
within a period of sixty days from the first date fixed for taking evidence in the case, such person

54
shall if he is in custody during the whole of the said period, be released on bail if the magistrate
is satisfied in doing it. If in between the time of the conclusion of the trial of a person accused of
a non-bailable offence and before judgment is delivered the court thinks that there are reasonable
grounds for believing that the accused is not guilty of any such offence, then the accused shall be
released on the execution by him of a bond without sureties for his appearance to hear judgment
delivered.

Q7d) Explain Bail in bailable offences.

A7d) Section 436 states about the conditions when a person may be released on bail on having
being accused of any offence other than non-bailable offence. Section 436 states that a person
shall be released on bail if the following conditions are satisfied:-

 He has been accused of any offence which is not a non-bailable offence ,and
 He has been arrested or detained without warrant by an officer-in-charge of a police
station, or
 He appears or is brought before a court, and
 He must be prepared at any time while in the custody of such officer or at any stage of
the proceeding before court to give bail
It is also further stated in section 436 that such police officer or such court may if he or it thinks
fit and proper, instead of taking bail from such accused person, discharge him after he executes a
bond without sureties for his appearance as and when required. It is also further stated in section
436 that such police officer or such court shall instead of taking bail from such accused person,
discharge him after he executes a bond without sureties for his appearance as and when required
,provided the accused person is an indigent person. It is further stated in section 436 that when an
accused person is unable to give bail within a week of the date of the his arrest , it will be
considered good enough reason for the officer or the court to presume that such an accused
person is an indigent person (person who has not got sufficient person to give sureties of bail
bond).

Sub-section(2) of section 436 states that where a person has failed to adhere and follow the
conditions of bail-bond as regarding the time and place of attendance which was specified in that

55
bail-bond, then the court may refuse to release him on bail, when later on in the same case he
appears before the court or is brought in custody and demands bail. Section 436-A states about
the maximum period for which an undertrial prisoner can be detained. According to this section,
a person who during the time of investigation, inquiry or trial under C.R.P.C, 1973 with respect
to any offence under any law, has undergone detention for a period which is upto one-half of the
maximum period of imprisonment specified for that offence under that particular law, then he
shall be released by the court on his personal bond with or without sureties.

The above mentioned point of section 436-A that an a person shall be released by the court on
his personal bond with or without sureties when he has undergone detention for a period which is
upto one-half of the maximum period of imprisonment specified for that offence, has got three
exceptions. The exceptions are as follows:-

 When the offence under any law in respect of which the period of detention is calculated
is an offence for whose punishment death has been specified as one of the options under
that law.

 When the court after hearing the public prosecutor and for reasons to be recorded in
writing, order the continued detention of such person for a period longer than one-half of
the maximum imprisonment in respect of the concerned offence.

 When the court after hearing the public prosecutor and for reasons to be recorded in
writing releases the person on bail instead of personal bond with or without sureties.

It has been further provided in section 436-A that ,no such person shall be detained in any case
concerned with an offence under any law during the stage of investigation, inquiry or trial for a
period which is more than the maximum period of imprisonment provided for the concerned
offence. For example say for the offence of theft the maximum imprisonment is three years and
hence any person accused of an offence of theft should not be detained for more than 3 yrs.
during the period of investigation, inquiry or trial of that offence of theft. The section also states

56
that in calculating the period of detention for getting bail, the time passed due to delay in
proceeding caused by the accused shall be omitted

Q8a) What do you mean by Appeal?

A8a) The word ―appeal‖ has not been defined in The Code of Criminal Procedure, 1973,
however, it can be described as the judicial examination of a decision, given by a lower court, by
a higher court. The Merriam-Webster dictionary defines appeal as ―a legal proceeding by which
a case is brought before a higher court for review of the decision of a lower court‖. It needs to be
pointed out that except for the statutory provisions laid down by CrPC or any other law which is
in force, an appeal cannot lie from any judgment or an order of a criminal court. Thus, there is no
vested right to appeal as such as even the first appeal will be subjected to statutory limitations.
The justification behind this principle is that the courts which try a case are competent enough
with the presumption that the trial has been conducted fairly. However, as per the proviso, the
victim has a right to appeal against any order passed by the Court under special circumstances
comprising of a judgment of acquittal, conviction for lesser offence or inadequate compensation.

Generally, same sets of rules and procedures are employed to govern the appeals in the Sessions
Courts and High Courts (highest court of appeal in a state and enjoys more powers in matters
where appeal is permissible). The highest court of appeal in the country is the Supreme Court
and hence, it enjoys the most extensive discretionary and plenary powers in the cases of appeals.
Its powers are largely governed by the provisions laid down in CrPC, Indian Constitution, and
the Supreme Court (Enlargement of Criminal Appellate Jurisdiction), 1970.

The law provides a person who has been convicted of a crime to appeal to the Supreme Court or
the High Court or the Sessions Court as per the circumstances. The accused has been given the
right to appeal to the Supreme Court against the judgment of the High Court if the High Court
has reversed an order of his acquittal on appeal by convicting him, thereby, sentencing him to
imprisonment for life or for ten years or more, or to death. Understanding the relevance of a
criminal appeal being made to the Supreme Court, the same law has also been laid down in
Article 134(1) of the Indian Constitution under the appellate jurisdiction of the Supreme Court.

57
The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, has also been
passed by the legislature in consonance with Article 134(2) of the Indian Constitution to confer
additional powers on the Supreme Court to entertain and hear appeals from the High Court under
certain conditions. A similar right to appeal has been granted to one or all accused persons if
more than one persons have been convicted in a trial and such order has been passed by the court

Q8b) Under what circumstances is a convicted person banned from making an appeal?

A8b) The circumstances wherein a convicted person is banned from making an appeal are stated
in sections 375 and 376 of the code of criminal Procedure, 1973. Section 375 states that
notwithstanding anything contained in section 374, where an accused person has pleaded guilty
and has been convicted on such plea, there shall be no appeal,—
(a) if the conviction is by a High Court; or
(b) if the conviction is by a Court of Session, Metropolitan Magistrate or Magistrate of the first
or second class, except as to the extent or legality of the sentence.

Section 376 states that Notwithstanding anything contained in section 374, there shall be no
appeal by a convicted person in any of the following cases, namely:—
(a) where a High Court passes only a sentence of imprisonment for a term not exceeding six
months or of fine not exceeding one thousand rupees, or of both such imprisonment and fine;
(b) where a Court of Session or a Metropolitan Magistrate passes only a sentence of
imprisonment for a term not exceeding three months or of fine not exceeding two hundred
rupees, or of both such imprisonment and fine;
(c) where a Magistrate of the first class passes only a sentence of fine not exceeding one hundred
rupees; or
(d) where, in a case tried summarily, a Magistrate empowered to act under section 260 passes
only a sentence of fine not exceeding two hundred rupees: Provided that an appeal may be
brought against such sentence if any other punishment is combined with it, but such sentence
shall not be appealable merely on the ground—
(i) that the person convicted is ordered to furnish security to keep the peace; or
(ii) that a direction for imprisonment in default of payment of fine is included in the sentence; or

58
(iii) that more than one sentence of fine is passed in the case, if the total amount of fine imposed
does not exceed the amount hereinbefore specified in respect of the case.

Q8c) What are the powers of the Appellate Court?

A8c) Section 386 of the Code of Criminal Procedure provides that, after perusing the records and
hearing the appellant or his Pleader and the Public Prosecutor, the Appellate Court may dismiss
the appeal, if it considers that there is no sufficient ground for interfering. However, it may also
pass any of the following five orders:

(i) In an appeal from an order of acquittal, —it may reverse the order, and direct that further
inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find
him guilty and pass a sentence on him according to law.

(ii) It may, in an appeal from a conviction, —

(a) Reverse the finding and sentence and acquit or discharge the accused, or order him to be re-
tried by a Court of com-petent jurisdiction subordinate to such Appellate Court; or

(b) Alter the finding, whilst maintaining the sentence; or

(c) With or without altering the finding, alter the nature or the extent, or both, of the sentence,
but not so as to enhance the same.

(iii) In an appeal for enhancement of the sentence, it may,—

(a) Reverse the finding and sentence, and acquit or discharge the accused or order him to be
retried by a competent Court; or

(b) Alter the finding, whilst maintaining the sentence; or

59
(c) With or without altering the finding, alter the nature or the extent, or both, of the sentence, so
as to enchance or reduce the same.

(iv) It may, in an appeal from any other order, —alter or reverse such order.

(v) It may make any amendment or any consequential or incidental order that may be just and
proper.

However, it may be noted that a sentence cannot be enchanced, unless the accused is given an
opportunity of showing cause against such enchancement. Moreover, an Appellate Court cannot
inflict greater punishment for the offence which in its opinion the accused has committed, than
the one which might have been inflicted on him for that offence by the Court passing the
sentence which is under appeal. It is interesting to note that there is no provision in the Criminal
Procedure Code for withdrawal of an appeal which has once been admitted for hearing.
Therefore, it is neither in the power of the Court, nor even of the appellant, to allow the appeal to
be withdrawn.

Q9a) Define and Distinguish between Bailable and Non-bailable offence.

A9a) According to Section 2(a) of the Code of Criminal Procedure, 1973 ,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. It consist two parts, first relates to offences under Indian Penal code and Second one
relates to offences under other laws. The second part says that the offence punishable with
imprisonment for less than three years or fine only, shall be bailable. Such offences tried by any
Magistrate. The term ‗non-bailable offence‘ does not mean that an accused person cannot get
bail under any circumstances. Section 437 of the Code of Criminal Procedure provides the
provisions for bail in non-bailable offences. Except on reasonable grounds that the offence
committed by accused is punishable with death or imprisonment for life. As per Section 50(2) of
the Code of Criminal Procedure that where a police officer arrests without warrant any person
other than a person accused of a non-bailable offence.

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Following points differentiate Bailable offence from Non-bailable offence :

1. In the case of bailable offence, its binding upon the investigating officer to grant
bail. While in case of a non-bailable offence the police do not grant bail. The
decision to grant bail taken by a Judicial Magistrate/Judge only.
2. In the case of a bailable offence, if the accused produces proper surety after his
arrest, and fulfills other conditions, its binding upon the Investigating officer to
release him. While in the case of a non-bailable offence, the Investigating Officer
must present the accused before the Judicial Magistrate/Judge concerned within 24
hours of the arrest. At that time, the accused has a right to apply for bail himself or
through his representative /lawyer.
3. Similarly, if the accused has subjected to any misbehavior by police after arrest, he
has an opportunity to complain against the same before the Judicial
Magistrate/Judge.
4. Bailable offences are less serious in nature as compared to non-bailable offences.
5. In case of bailable offence bail can be claimed as a matter of right by the accused. In
non-bailable offences bail cannot be claimed as a matter of right.

Q9b) Define and distinguish cognizable and non-cognizable offences.

A9b) A cognizable offence is an offence in which the police officer as per the first schedule or
under any other law for the time being in force, can arrest the convict without a warrant and can
start an investigation without the permission of the court. Cognizable offences are generally
heinous or serious in nature such as murder, rape, kidnapping, theft, dowry death etc. The first
information report (FIR) is registered only in cognizable crimes. Under section 154 Criminal
Procedure Code (CrPC), a police officer is bound to register an FIR in case of a cognizable
crime. He can also conduct some kind of preliminary inquiry before registering the FIR. In these
offences, a convict is arrested and produced before the magistrate in the stipulated time. Owing
to the serious nature of the crime, court?s approval is implicit in cognizable offences.

A non-cognizable offence is the offence listed under the first schedule of the Indian Penal Code
and is bailable in nature. In case of a non-cognizable offence, the police cannot arrest the accused

61
without a warrant as well as cannot start an investigation without the permission of the court.
The crimes of forgery, cheating, defamation, public nuisance, etc., fall in the category of non-
cognizable crimes. In this type of crimes, a criminal complaint is lodged with the metropolitan
magistrate who is supposed to order the concerned police station to initiate an investigation. The
police officer is supposed to file the charge sheet with the court which is followed by a trial.
After the trial, if the accused is found guilty, the court passes the order to issue the warrant to
arrest the accused

Cognizable Non-Cognizable

It is the offence in which a police officer It is the offence in which a police officer
can arrest the convict without the warrant. cannot arrest a person without the warrant.

The police can start a preliminary The police officer cannot start the
investigation without the permission of the investigation without the permission of the
court or without registering the FIR. court.

These are heinous crimes like murder, rape, These crimes are not so serious like forgery,
dowry death etc. cheating, defamation etc.

The victim can file an FIR or make a The victim can only make a complaint to the
complaint to the magistrate. magistrate.

It is defined in the Section 2(c) of the It is defined in Section 2(I) of Criminal

Criminal Procedure Code, 1973. Procedure Code 1973.

The police officer is bound to register the The police officer is not bound to register the
FIR even without the permission of FIR or cannot register the FIR without prior
Magistrate. permission of the magistrate.

It is a non-bailable offence. It is a bailable offence.

Q9c) Define and Distinguish between Discharge and Acquital.

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A9c)

Discharge
Acquittal

A person who has been acquitted cannot be

A discharged person can be rearrested and
arrested for the same case in which he has been
committed for a further enquiry.
acquitted by the Court.

When a Magistrate proceeds with less serious

An acquittal may also result from absence of
offence, it amounts to a discharge of graver
the complainant, or withdrawal or a
charge and the accused can be directed to be
compounding of offence.
committed.

An order of discharge simply implies that there

An order of acquittal is a judicial decision taken is no prima facie evidence against the accused
after full inquiry establishing the innocence of to justify further enquiry in relation to the
accused. charge; such order does not establish anything
regarding the guilt of the accused.

An acquittal bars second trial on the same facts

and for the same offence, or on the same facts
A discharge does not bar the institution of fresh
for any other offence for which different
proceedings when new or better evidence
charges from the one made against the accused
becomes available against the accused.
might have been made under Section 221(1) of
CrPC.

Q9d) Define and Distinguish between Inquiry, investigation and trial.

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A9d) 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. Inquiry includes every inquiry other than a trial conducted under this
code by a magistrate or court. This word is meant to include everything done in a case by a
magistrate whether the case has been challenged or not. It does not always mean a judicial
inquiry. Whether it does or not depends on the context in which it is used.

The term trial has not been defined by CrPc. So it may be defined in general sense as, ―Trial
means a proceedings, which starts when the case is called by a magistrate or judge on the bench,
the accused is in the dock and representatives for both the prosecution and defence are in the
court for the hearing of cae and this ends at either acquittal or conviction‖. Trial Pre-supposes the
commission of an offence and generally begins with the framing of charge.

Investigation Inquiry Trial

1. It is conducted by Police 1. It is conducted by the 1. It is conducted by the
officer or any person Magistrate or by the court. Magistrate or by the court.
authorized by a Magistrate.
2. It starts when FIR is lodged 2. It starts when complaint is 2. It starts either by framing of
or complaint is made to the filed to the Magistrate charge or arrangement of the
Magistrate accused
3. It is a not a judicial 3. It is any proceedings 3. It is the Judicial
proceedings. conducted by Magistrate or a Proceedings conducted by
Court Court
4. Its purpose is Collection of 4. Its purpose is Determination 4. Its purpose is Finalization
evidence for reading near the of truth of truth and falsity.
truth
5. It finishes with the result 5. It finishes only with the 5. It finishes with the
but with opinion of the police recommendations. punishment or acquittal.
officer to be submitted before
the Court.
6. In it, no charge is framed 6. a charge is framed during 6. It starts after farming of

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 inquiry charge
7. It is the first stage of a 7. It is the second statge of a 7. It is the third stage of a
criminal case. criminal case. criminal case.

Q9e) Define and Distinguish summons and warrant case

A9e) A warrant-case is defined to mean a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. A summons-case means a
case relating to an offence, not being a warrant-case.

Difference between summon case and warrant case

1. The Code of Criminal Procedure prescribes two procedures for the trial of a warrant case by
Magistrates, namely, one adopted by the Magistrate in case instituted on a Police Report while
the other in case instituted otherwise than on a Police Report. But in trial of summon case, only
one procedure followed, whether instituted on a Police Report or a complaint.

2. The procedure for summons cases is simpler and speedier. While the procedure for warrant
cases are complicated and slower. Warrant cases deal with offences graver than those
in summons cases. Such cases cannot tried in the same simple and speedy way
as summons cases.

3. In a warrant case, the accused gets more than one opportunity to cross- examine the
prosecution witnesses. While in a summons case he gets only one opportunity to cross-examine
the prosecution witnesses.

4. The Magistrate empowered to convert a summons case into a warrant case under the Code.
While a warrant case cannot converted into a summons case.

5. In a summons case, after the issue of summons, the accused may plead guilty by post without
appearing before the Magistrate. But no such provision exists in trial of a warrant case.

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6. In warrant case charge cannot split up into its constituents for trial under a summons case.

7. In warrant case, it gives greater opportunities for defense. While in summon case, it does not
gives greater opportunity for defense.

8. The difference between the two forms of trial is not therefore merely one of form importing
more irregularity curable u/S. 537 of the Criminal procedure code, 1973. On the other hand, it is
so vital that there is an almost indefeasible presumption of prejudice to the accused if
a warrant case is tried as a summons case.

9. In summons cases where the personal attendance of the accused has dispensed with, either
under Section 205 or under Section 540-A, the court should have a power to dispense with his
examination. While even where his personal attendance has dispensed with, the accused
should examined personally.

10. In warrant case, framing of a formal charge necessary. In summon case, framing of a formal
not necessary in a summons case.

Q9f) Define and Distinguish between Appeal and Revision.

A9f) The points of difference between appeal and revision are as follows:-

 Appeal is generally a legal right of a party, but revision depends on the discretion of the
Court, due to which it cannot be claimed as a matter of right. In particular, in criminal
cases, at least one appeal is a substantive right conferred on accused by the statute (and it
is also considered a part of the fundamental right guaranteed under Article 21 of the
Constitution), while the revision power is discretionary and is not a matter of right.
 In case of appeal, the appellant is heard by the court. But, it is not necessary in the case of
a revision and the person filing the revision may not be formally heard.
 Under the Criminal Procedure Code, the appeal lies to a superior court (which may be
any superior court as laid down in the relevant provisions), but the revision lies only to
the High Court or the Sessions Court (Section 399 of Cr.P.C.).

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  Appeal is required to be filed by a party to the proceedings, but revision can also be
exercised suo motu by the higher court having the power of revision.
 Generally, revision is exercised against those orders which are not appealable.
 Generally, appeal involves rehearing on question of law as well as on facts of the case,
whereas revision generally involves hearing only the question of law and this is not
considered a rehearing.
 An appeal is considered to be a continuation of the original proceeding whereas revision
is not the continuation of the original proceeding.

Q9g) Define and distinguish between F.I.R and Complaint

A9g) The term ‗complaint‘ can be defined as any type of accusation excluding a police report,
made verbally to the Magistrate, to make him/her take action as per the Criminal Procedure
Code, that a person has committed an offence. Although, a police report in a case is also
considered as a complaint when after investigation it is revealed that a non-cognizable offence is
committed. In such a condition, the officer who prepares the report is deemed as the
complainant. In a civil lawsuit, a complaint is termed as a plaint.

First Information Report shortly known as FIR can be described as every information concerning
the cognizable offence, verbally provided to the officer in charge of the police station by the
victim or the witness or any person who is aware of the commission of the crime. The officer
may write down the information provided by the informant in the format prescribed after which
the FIR made is read over by the officer and duly signed by the informant after completely
verifying the details provided. A copy of FIR is given to the informant.

The difference between complaint and FIR are given in the points hereunder:

1. A written document prepared by the police, when the police get the information about the
commission of a crime for the very first time, is known as FIR or first information report.
Conversely, A petition filed with the magistrate that contains an accusation regarding the
commission of an offence and a prayer is made that the accused should be penalized, is called
complaint.

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2.While a complaint has no prescribed format, FIR can only be registered in the format
prescribed by the law.

3.One can make a complaint to the metropolitan magistrate, whereas an informant or plaintiff
can lodge FIR to the police officer of the respective police station.

4.The complaint is made for both cognizable and non-cognizable offences. Unlike, only
cognizable offences are covered in case of FIR.

5.Any person can make a complaint to the magistrate regarding the offence, except in the case of
marriage and defamation wherein only aggrieved party can make a complaint. On the contrary,
any person who is an aggrieved party, witness or is having the knowledge of the crime can file
FIR.

Q10a) Write short note on Remand.

A10a) Generally, the word remand means to return or send back. The Legal Definition of
remand has two different meanings. Firstly, this term is used to send back the accused or prisoner
in the custody of competent authority. Secondly, it is used to send back the cases from the
appellate court to the lower court. The case was remanded from the appellate court to lower court
when the lower court commits error in a trail. In the context of detained person remand means to
send back the arrested person who is waiting to conclude his trial, to police custody for further
interrogation. The following conditions must be kept in mind while giving remand:-

1. He should ensure that allegation is well founded on good grounds. If allegation is not well
founded he is not bound to entertain order of remand
2. To examine police diary: in order to satisfy himself as to the nature of the allegation, the
magistrate should examine an official document which is supposed to be maintained by
every police officer. Without examining the police diary magistrate cannot grant remand in
any case. Police diary is not a public document court cannot take it as evidence but the court
may examine to ascertain the nature of the allegation.

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3. To examine the accused: accused whose remand is sought must be produced before a
magistrate for examination. Without producing the accused no police officer can secure
physical remand. The magistrate cannot give remand of accused without examining him.

Q10b) Write short note on Assistant Session’s Judge

A10b) 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.

Q10c) Write short note on Judicial Proceeding.

A10c) A judicial proceeding is defined to include any proceeding in the course of which
evidence is or may be legally taken on oath. Thus, the power to take evidence on oath is the
characteristic test of a judicial proceeding. It includes inquiry and trial, but not investigation. An
inquiry in which evidence is legally taken is included in this term. An inquiry is judicial, if its
object is to determine the jural relation between one person and another, or a group of persons, or
between him and the community in general. Therefore, even a Judge acting without such an

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object in view, is not acting judicially. An inquiry in which no discretion is to be used and no
judgment to be formed, but something is to be done as a matter of a duty, is not a judicial but an
administrative inquiry. Thus, proceedings before a Collector under the Land Acquisition Act are
not judicial proceedings. The following have been held to be judicial proceedings:

(i) Maintenance proceedings under Chapter IX of the Code;

(ii) An inquiry under the Legal Practitioners‘ Act, 1879;

(iii) An inquiry by a Magistrate, before issuing an order under S. 144 of the Code;

(iv) Proceedings in execution of a decree.

On the other hand, the following have been held not to be judicial proceedings:

(a) An examination by a Police Officer under S. 161 of the Code;

(b) An order of the Government sanctioning a prosecution under S. 196 or S. 197 of the Code;

(c) A departmental inquiry by a District Registrar into a complaint made against a Sub-Registrar;

(d) Inquiries made by a Chief Judicial Magistrate on receipt of information that a grave crime
was about to be committed.

Q10d) Write a short note on case Diary.

A10d) Section 172 Cr.P.C. lays down that every police officer making an investigation should
maintain a diary of his investigation. Each State has its own police regulations or otherwise
known as police standing orders and some of them provide as to the manner in which such
diaries are to be maintained. These diaries are called case diaries or special diaries. Like in Uttar
Pradesh, the diary under section 172 is known as ‗special diary‘ or ‗case diary‘ and in some other
States like Andhra Pradesh and Tamilnadu, it is known as ‗case diary‘. The Section itself
indicates as to the nature of the entries that have to be made and what is intended to be recorded
is what the police officer did, the places where he went and the places which he visited etc. and
in general it should contain a statement of the circumstances ascertained through his

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investigation. Sub-section (2) is to the effect that a criminal court may send for the diaries and
may use them not as evidence but only to aid in such inquiry or trial. The aid which the court can
receive from the entries in such a diary usually is confined to utilising the information given
therein as foundation for questions to be put to the witnesses particularly the police witnesses
and the court may, if necessary, in its discretion use the entries to contradict the police officer
who made them.

Coming to their use by the accused, Sub-section (3) clearly lays down that neither the accused
nor his agents shall be entitled to call for such diaries nor he or they may be entitled to see them
merely because they are referred to by the courts. But in case the police officer uses the entries to
refresh his memory or if the court uses them for the purpose of contradicting such police officer
then provisions of Section 161 or Section 145, as the case may be, of the Evidence Act would
apply. Section 145 of the Evidence Act provides for cross-examination of a witness as to the
previous statements made by him in writing or reduced into writing and if it is intended to
contradict him by the writing, his attention must be called to those parts of it which are to be
used for the purpose of contradiction. Section 161 deals with the adverse party's rights as to the
production, inspection and cross-examination when a document is used to refresh the memory of
the witness. It can therefore be seen that the right of accused to cross-examine the police officer
with reference to the entries in the General Diary is very much limited in extent and even that
limited scope arises only when the court uses the entries to contradict the police officer or when
the police officer uses it for refreshing his memory and that again is subject to the limitations of
Sections 145 and 161 of the Evidence Act and for that limited purpose only the accused in the
discretion of the court may be permitted to peruse the particular entry and in case if the court
does not use such entries for the purpose of contradicting the police officer or if the police officer
does not use the same for refreshing his memory, then the question of accused getting any right
to use the entries even to that limited extent does not arise.

Q11a) What do you mean by Probation?

A11a) ―Probo‖ is a Latin word, the meaning of which is ―I prove my worth‖ i.e. to see whether
he can live in a free society without breaking the law. ―Probatio‖ means ―test on approval‖.
Webster dictionary meaning of Probation is the act of proving, proof, any proceeding designed to

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ascertain character. Thus probation means a period of proving or trial. The offender has to prove
that he is worthy of probation. Probation is a socialized penal device, an extramural alternative of
institutionalization and has come about as the result of modification over a period of time of
doctrine of deterrence into the principle of reformation, a development that paved the way to the
introduction of clinical approach and the principle of individualization in the handling of
offenders. Probation means discharging a person subject to commitment by the suspension of
sentence, during the regularity of conduct, and imposing conditions and on default thereof
arresting and committing him until imprisonment is served or the judgment is satisfied.

The term ―Probation‖ is derived from the Latin word ―probare‖, which means to test or to prove.
It is a treatment device, developed as a non-custodial alternative which is used by the magistracy
where guilt is established but it is considered that imposing of a prison sentence would do no
good. Imprisonment decreases his capacity to readjust to the normal society after the release and
association with professional delinquents often have undesired effects. Probation system is based
on reformative theory. It is a scientific approach. It is a rational approach towards the causation
of crime of young offenders and thus they can be saved from becoming habitual offenders by
dumping them into jails. The probation officer insists on the problem or need of the offender and
tries to solve his problem and see that the offender becomes a useful citizen of the society.

Q11b) Discuss the duties and responsibilities of Probation Officer.

A11b) Sec 14of the Act deals with the duties of a probation officer. It states A probation officer
shall, subject to such conditions and restrictions, as may be prescribed -

(a) enquire, in accordance with any directions of a court, into the circumstances or home
surroundings of any person accused of an offence with a view to assist the court in determining
the most suitable method of dealing with him and submit reports to the court;

(b) supervise probationers and other persons placed under his supervision and, where necessary,
endeavour to find them suitable employment;

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(c) advise and assist offenders in the payment of compensation or costs ordered by the Court;

(d) advise and assist, in such cases and in such manner as may be prescribed, persons who have
been released under section 4;

(e) perform such other duties as may be prescribed.

Q11c) Differentiate between probation and admonition.

A11c) In re: Salem Govindappa Chetty5, the Andhra Pradesh High Court released the accused
on probation of good conduct under Section 4 of the Probation of Offenders Act, 1958, though
the accused was convicted under Section 16(1)(a) of the Act of the Prevention of Food
Adulteration Act, 1954 on a charge of selling Mysorepak (sweet) containing non-permitted
coaltar dye metanil yellow, and even though the accused therein was the owner of the shop,
while Jai Narain was the employee. The appellant Jai Narain pitched his tent too high in praying
for release after due admonition. He prayed for the relief which even the Supreme Court was not
empowered to grant, Section 3 being inapplicable. There is a sharp distinction between release
after due admonition under Section 3 and release, on bond, on probation of good conduct under
Section 4. It is true that under Section 12 of the Act release under Section 3 or Section 4 is not a
disqualification attaching to a conviction of an offence. In case of release after due admonition,
the sword does not remain hanging on the accused. The fact that such an order may be set aside
under Section 11(4) is a different matter while in case of release on a bond on probation of good
conduct the sentence is merely suspended and the sword remains hanging on the accused till the
expiry of the bond and in the event of the accused failing to observe the conditions of the bond,
he is liable to be dealt with under Section 9, that is, he may be sentenced for the original offence
or a penalty may be imposed upon him.

Q11d) Write a brief note on the powers of the Court to deal with an offender who has failed
to observe conditions of bond executed under section 4 of the probation of offenders act,
1958.

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A11d) If the court which passes an order under section 4 in respect of an offender or any court
which could have dealt with the offender in respect of his original offence has reason to believe,
on the report of a probation officer or otherwise, that the offender has failed to observe any of the
conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest or may,
if it thinks fit, issue a summons to him and his sureties, if any, requiring him or them to attend
before it at such time as may be specified in the summons. The court before which an offender is
so brought or appears may either remand him to custody until the case is concluded or it may
grant him bail, with or without surety, to appear on the date which it may fix for hearing. If the
court, after hearing the case, is satisfied that the offender has failed to observe any of the
conditions of the bond or bonds entered into by him, it may forthwith—
(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without prejudice to the continuance in force of
the bond, impose upon him a penalty not exceeding fifty rupees. If a penalty imposed under
clause (b) is not paid within such period as the court may fix, the court may sentence the
offender for the original offence.
Q11e) What are the powers of the court to release offenders on probation of good conduct?

A11e) 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:

Provided that the court shall not direct such release of an offender unless it is satisfied that the
offender or his surety, if any, has a fixed place of abode or regular occupation in the place over
which the court exercises jurisdiction or in which the offender is likely to live during the period
for which he enters into the bond. Before making any order under sub-section (1), the court shall

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take into consideration the report, if any, of the probation officer concerned in relation to the
case. When an order under sub-section (1) is made, the court may, if it is of opinion that in the
interests of the offender and of the public it is expedient so to do, in addition pass a supervision
order directing that the offender shall remain under the supervision of a probation officer named
in the order during such period, not being less than one year, as may be specified therein, and
may in such supervision order impose such conditions as it deems necessary for the due
supervision of the offender.

The court making a supervision order under sub-section (3) shall require the offender, before he
is released, to enter into a bond, with or without sureties, to observe the conditions specified in
such order and such additional conditions with respect to residence, abstention from intoxicants
or any other matter as the court may, having regard to the particular circumstances, consider fit
to impose for preventing a repetition of the same offence or a commission of other offences by
the offender. The court making a supervision order under sub-section (3) shall explain to the
offender the terms and conditions of the order and shall forthwith furnish one copy of the
supervision order to each of the offenders, the sureties, if any, and the probation officer
concerned
Q12a) Discuss the constitution of Juvenile Justice Board.

A12a) Legal provisions regarding Constitution of the Juvenile Justice Board under Section 4 of
the Juvenile Justice (Care and Protection of Children) Act, 2000. Board shall consist of a
Metropolitan Magistrate or a Judicial Magistrate of the First Class, as the case may be, and two
social workers of whom at least one shall be a woman, forming a Bench and every such Bench
shall have the powers conferred by the Code of Criminal Procedure, 1973 on a Metropolitan
Magistrate or, as the case may be, a Judicial Magistrate of the First Class and the Magistrate on
the Board shall be designated as the principal Magistrate.

No Magistrate shall be appointed as a member of the Board unless he has special knowledge or
training in child psychology or child welfare and no social worker shall be appointed as a
member of the Board unless he has been actively involved in health, education, or welfare
activities pertaining to children for at least seven years.

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Q12b) Discuss the powers of the Juvenile Justice Board.

A12b) The powers and functions of the Juvenile Justice board are as follows:-

1. Ensure informed participation of the child and the parent/ guardian, in every step of the
process. (Section 8(3)(a))

2. Ensure that the child‘s rights are protected throughout the process of apprehending the child ,
enquiry, after care and rehabilitation. (Section 8(3)(b))

3. Ensure availability of legal aid for the child through legal service institution. (Section 8(3)(c))

4.Wherever necessary, provide an interpreter or translator, having such qualifications,

experience, and on payment of such fees as may be prescribed, to the child if he fails to
understand the language used in the proceedings. (Section 8(3)(d))

5. Direct Probation Officer/Child Welfare Officer/Social Worker to conduct social investigation

to ascertain the circumstances in which the alleged offence was committed and to submit report
within 15days from the date of first production of the child before the JJB. (Section 8(3)(e))

6. adjudicate and dispose of cases of children in conflict with law in accordance with the process
of inquiry in section 14. (Section 8(3)(f)

7. When a CCL is in need of care and protection, JJB will simultaneously transfer such matters
to Child Welfare Committee. (Section 8(3)(g))

8. Include an individual care plan for the child‘s rehabilitation in a final order disposing of the
matter. (Section 8(3)(h))

9. Conduct enquiry for declaring fit persons regarding case of children in conflict with law.
(Section 8(3)(i))

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10. Conduct at least one monthly inspection of the residential facilities of children in conflict
with law and recommend action for improvement in quality of services to the DCPU and the
State Government. (Section 8(3)(j))

Q12c) What is shelter home and fit person?

A12c) Section 37 of the Juvenile Justice (Care and Protection of Children) Act, 2000 states that
the State Government may recognize, reputed and capable voluntary organizations and provide
them assistance to setup and administer as many shelter homes for juveniles or children as may
be required. The shelter homes referred in sub-section (1) shall function as drop-in-centers for
the children in the need of urgent support who have been brought to such homes through such
persons as are referred to in sub-section (1) of section 32. As far as possible, the shelter homes
shall have such facilities as may be prescribed by the rules.

Section 52 of the Juvenile Justice (Care and Protection of Children) Act, 2000 states that the
Board or the Committee shall, after due verification of credentials, recognize any person fit to
temporarily receive a child for care, protection and treatment of such child for a specified period
and in the manner as may be prescribed. The Board or Committee, as the case may be, may
withdraw the recognition granted under sub-section (1) for reasons to be recorded in writing.

Q12d) What are the powers and duties of child welfare committee?

A12d) In accordance with the provisions under section-27 of the Juvenile Justice (Care &
Protection of Children) Act, 2015 and read with rule-15 of the Juvenile Justice (Care &
Protection of Children) Model Rules, 2016, the State Government constitutes Child Welfare
Committees in districts time to time, for exercising the powers & to discharge duties, conferred
on such committees in relation to Children in Need of Care & Protection under this Act and
Rule.

As per Section 30 of the Juvenile Justice (Care & Protection of Children) Act, the committee
shall perform the following functions, namely:-

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a. taking cognizance of and receiving the children produced before it;

b. conducting inquiry on all issues relating to and affecting the safety and well being of the
children under this Act;

c. directing the Child Welfare Officers or probation officers or District Child Protection Unit
or non-governmental organisations to conduct social investigation and submit a report
before the Committee;

d. conducting inquiry for declaring fit persons for care of children in need of care and
protection;

e. directing placement of a child in foster care;

f. ensuring care, protection, appropriate rehabilitation or restoration of children in need of care

and protection, based on the child‘s individual care plan and passing necessary directions to
parents or guardians or fit persons or children‘s homes or fit facility in this regard;

g. selecting registered institution for placement of each child requiring institutional support,
based on the child‘s age, gender, disability and needs and keeping in mind the available
capacity of the institution;

h. conducting at least two inspection visits per month of residential facilities for children in
need of care and protection and recommending action for improvement in quality of
services to the District Child Protection Unit and the State Government;

i. certifying the execution of the surrender deed by the parents and ensuring that they are
given time to reconsider their decision as well as making all efforts to keep the family
together;

j. ensuring that all efforts are made for restoration of abandoned or lost children to their
families following due process, as may be prescribed;

k. declaration of orphan, abandoned and surrendered child as legally free for adoption after
due inquiry;

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l. taking suo motu cognizance of cases and reaching out to children in need of care and
protection, who are not produced before the Committee, provided that such decision is
taken by at least three members;

m. taking action for rehabilitation of sexually abused children who are reported as children in
need of care and protection to the Committee by Special Juvenile Police Unit or local
police, as the case may be, under the Protection of Children from Sexual Offences Act,
2012;

n. dealing with cases referred by the Board under sub-section (2) of section 17;

o. co-ordinate with the police, labour department and other agencies involved in the care and
protection of children with support of the District Child Protection Unit or the State
Government;

p. in case of a complaint of abuse of a child in any child care institution, the Committee shall
conduct an inquiry and give directions to the police or the District Child Protection Unit or
labour department or childline services, as the case may be;

q. accessing appropriate legal services for children;

r. such other functions and responsibilities, as may be prescribed;

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