Internal Exam topics

1.Bailable / Non Bailable

2. Investigation/ Trial / Inquiry

3. Classes of Criminal Court, Powers

4. Definition of Victim

5. Executive Magistrate and Powers

6. Maintenance
7. summons case and warrant case

ABSTRACT

Summons and warrants are two forms of criminal proceedings in the Indian legal system that differ
in the methods used to initiate and conduct a trial. The issuance of a summons to the accused
initiates a summons case, whereas the issuance of an arrest warrant initiates a warrant case. The
purpose of this article is to present a thorough comparison of summons cases and warrant cases,
including the legal rules controlling each type of case, the procedures followed during the trial, and
the outcomes of the cases. The study will also look at the benefits and drawbacks of each form of
case, as well as the elements that influence the decision between summons and warrant cases.

Keywords-Summons, Warrant, criminal proceeding, legal rule

INTRODUCTION

In the Indian legal system, there are two types of criminal cases: summons and warrant cases.
While both types of cases are used to prosecute individuals for criminal charges, the tactics utilised
in each differ dramatically. The decision between summons and warrant cases is influenced by a
number of variables, including the type and degree of the offence, the available evidence, and the
likelihood of the accused appearing in court. While summons is normally less serious than
warrants, they can also be more time-consuming and ineffective in guaranteeing the accused’s
appearance in court.

The paper aims to understand the differences between summons and warrant cases, as well as how
they are utilised in the Indian legal system to pursue criminal offences. We can make informed
decisions on the most effective strategies to secure justice for all if we understand the strengths and
weaknesses of each type of case.

SUMMON

A summons is a legal document issued by a magistrate under Section 204 (1) (a) of the law that
orders a person to appear in court when a complaint is filed against him. According to Section 61 of

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the code, the summons must be in writing, signed by the presiding officer of the relevant court, and
display the seal of that court. It would be ruled invalid otherwise.

Reiteratively, the punishment tenure for summons cases would not exceed two years in prison,
indicating the less serious character of the crime and so requiring a rapid resolution without
jeopardising the procedures of a fair trial. The method is outlined in Chapter XX of the Code of
Criminal method. Section 2(w) of the Code of Criminal Procedure defines summons cases as cases
relating to an offence that is not a warrant case. It is important to understand that every offence
punishable with INR 50 is considered a summons case. The procedure to be followed when dealing
with such problems is outlined in the code between Sections 251 and 259. In terms of technique, it
is similar to other trials, but noticeably less formal in order to provide quick resolutions.

TRIAL OF SUMMON CASE

Section 251 of the code requires the court to explain the particulars to the accused and record the
accused’s plea. In the case of State of Gujarat v. Lalit Mohan[1], this was confirmed. Though this
clause does not require the laying of charges, it does require that the details be communicated to the
accused when he is brought before the court. However, in the case of Manbodh Biswal v. Samaru
Pradhan[2], the court clarified that the rule itself stipulates that a trial is not vitiated just because
this provision was not followed if such non-compliance did not create any prejudice to the accused.

If the accused pleads guilty, Section 252 comes into action, which provides for the accused’s
conviction after recording his plea and examining both prosecution and defence witnesses. In the
case of Thangjam v. Irabot Singh[3], it was determined that a joint statement made by all of the
accused persons could not be considered a plea of guilty. Section 253 dealt with the method for
convicting an accused in a minor matter based on his guilty plea in his absence. The dilemma here
is, what if the accused pleads ‘not guilty’? Section 254 of the statute addresses this.

If the accused has not been convicted on his or her plea under Sections 252 or 253, the magistrate is
required to hear the prosecutor and his witnesses. The accused cannot be acquitted without the
examination of the complainant’s witnesses, as the magistrate is required to question all witnesses
submitted by both the prosecution and the accused. Failure to hear the accused renders the criminal
trial invalid under Section 465. The magistrate shall issue summons to any witnesses on the
application of the relevant party to the case, and he shall create the memorandum of evidence under
Section 274 of the code.

WARRANT CASE

A warrant is an order given to a specific person who is required to apprehend the accused and bring
him before the court. The purpose of the warrant is to bring the accused before the court who has
not appeared even after the summons has been issued. Only the magistrate has the authority to carry
out the order. The court seal and the presiding officer’s signature should appear on such an order. A
warrant case is one in which the committed offence is punishable by a term of not less than two
years in prison. The warrant is valid until the date it is rescinded by the same court. Warrant cases
fall under Chapter XIX and are defined in Section 2(X) of the Code. A warrant case trial begins
with the filing of a FIR at the police station or the filing of a complaint with the magistrate. The
charge is framed against the accused in a warrant action. There are two sorts of warrant trials:
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  On the police report
 Other than the police report

The procedure for a warrant case has been dealt with under section 238 to 250 of the code of
Criminal Procedure.

TRIAL OF WARRANT CASE

CASE INSTITUTED ON POLICE REPORT

Section 238 of the law states that when a warrant case is filed on the police report and the accused
is brought before the magistrate, the magistrate is required to follow Section 207 of the code. The
following Section 239 discusses when an accused shall be discharged; it states that if the magistrate
determines that the charges framed against the accused are without merit after reviewing the police
report and the associated documents under Section 173 and considering all relevant arguments of
the parties, the accused shall be discharged. The court concluded in Century Spinning and
Manufacturing Co. Ltd v. State of Maharashtra [4]that this section of the CrPC must be read in
conjunction with Section 240.

Section 240 addressed the formulation of charges following examination and consideration. If the
magistrate believes there are sufficient grounds to believe the accused committed the offence, he
shall frame a charge in writing against the accused. It is worth noting that Section 240 allows a
magistrate to not only assess the police report and other documents supplied under Section 173, but
also to examine the accused at his discretion.

Section 241, like Section 252, provides for the conviction of the accused on the plea of guilty in
summons instances. The procedure for cases where the accused pleads ‘not guilty’ is outlined in
Section 242. In accordance with the aforementioned law, the magistrate shall set a date for the
examination of both sides’ witnesses. Section 242 of the code has dealt extensively with
prosecution evidence, whereas Section 243 of the code explains the method for producing evidence
from defence counsel.

CASES INSTITUTED OTHER THAN POLICE REPORT

Sections 244 to 247 of Chapter XIX are entirely devoted to dealing with the procedure for warrant
cases trials that are not based on a police report. Section 244 covers the magistrate’s duty to request
witnesses to be interrogated before concluding evidence and drafting the charge. Nonetheless, it is
worth noting that the magistrate is under no need to invite any witnesses on his own, as the
prosecution is responsible for doing so.

Section 245 specifies when the accused may be released. In the case of Muhammad v.
Balkrishna[5], the Court explained that this Section does not vest the Magistrate with any arbitrary
authority of release; rather, there must be ground or substantial documents to infer that no offence
is made out. Thus, if all of the evidence presented by the prosecution within four years of the case’s
inception does not provide a legitimate basis to dismiss the accused, the magistrate may acquit the
accused at his discretion. In contrast, if the magistrate decides, after reviewing the evidence, that
there is a reasonable foundation to infer that the accused committed the offence, Section 246

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becomes applicable since it specifies what happens if the accused is not released. The subsequent
clause, Section 247, has dealt with the evidence for the defence; this occurs only after the
formulation of charges, when the accused is given the opportunity to cross-examine the prosecution
witnesses. Finally, the warrant trial, like all other trials, finishes with the accused being acquitted or
convicted under Section 248 of the code.

DIFFERENCE BETWEEN SUMMON AND WARRANT CASE

Points of
Summon Case Warrant Case
difference

Punishment Less than two years of

More than two years of imprisonment
Tenure imprisonment

Dealt with under Chapter –XX of Dealt with under Chapter – XIX of
Procedure
CrPC from Section 252 to 259. CrPC from Section 238 to 250.

Framing of charges against the

Framing of Criminal charges
accused is not necessarily to be
Charge Framing against accused person is mandatorily
done. But, only the particulars must
to be done.
be conveyed to the accused.

It notifies the accused person that It brings the accused person before the
Object he is legally obliged to appear in court, who has ignored the summon
court. has been duly issued to him.

It instructs to produce the relevant In general, it authorizes a police

Content documents and others before the officer to bring the accused person
court. before the court.

· Absence of the complainant. · If no

Discharge of the
Absence of the complainant. On charges are framed. · If the offence is
accused person,
the death of the complainant. non-cognizable and compoundable.
when?
ADVERTISEMENT

Conversion of A summon case can be converted By no mean, a warrant case can be

case into a warrant case. cannot be converted into summon case

CONCLUSION

In conclusion, while both warrants and summonses are legal orders utilised by law enforcement,
they differ significantly. A warrant is a document issued by a judge or magistrate that authorises
police enforcement to do something specific, such as make an arrest or conduct a search. A
summons, on the other hand, is a legal notice requiring a person to appear in court at a certain time
and date. The circumstances under which they are issued, the types of acts they authorise law

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enforcement to do, and the repercussions for noncompliance are some of the fundamental
differences between warrants and summons. Warrants are often issued when law enforcement
believes that a crime has been committed. whereas summonses are issued in less serious
circumstances, such as traffic violations or minor offences. Overall, recognising the distinctions
between warrants and summonses is critical for both law enforcement and those who may be
subject to these legal procedures. Individuals can defend their rights and respond correctly to legal
orders if they understand the circumstances under which they can be issued and the repercussions
of noncompliance.

Executive Magistrates and Their Powers Under CrPC

A Criminal Court is a court that has the jurisdiction and authority to try and punish the persons
accused of committing a crime as per criminal law. Generally, the government files a case in
Criminal Courts against a person who has committed any crime. The reason behind this is that
whenever a crime is committed, it is considered an act against a state and not only the victim. It is
the paramount duty of the state to protect its citizens. Therefore, the state becomes operative when a
crime is committed. In this article we shall discuss Executive Magistrates and their powers under
CrPC.

Classes of Criminal Courts in India:

Section 6 CrPC:

Classes of Criminal Courts:

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

(i) Courts of Session;

(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

Criminal courts can be categorized or classified, in the hierarchy, as given below:

o Supreme Court.
o High Court.
o Sessions Court (also called Court of Session).
o Judicial Magistrates of First Class (called Metropolitan Magistrates in metropolitan areas).
o Judicial Magistrates of Second Class.
o Executive Magistrates

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Executive Magistrate:

As per the Criminal Procedure Code, the allocation of magisterial functions is divided into two
categories of Magistrates – “Judicial Magistrates” under the control of High Court and
“Executive Magistrates” under the control of state government.

Appointment of executive magistrates is by the by executive branch of the government and their
superintendence and control also vests with the executive. The state government also has powers to
appoint special executive magistrates for a particular area or for the performance of particular
functions.

Section 20:

Executive Magistrates:

(1) In every district and in every metropolitan area, the State Government may appoint as many
persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District
Magistrate.

(2) The State Government may appoint any Executive Magistrate to be an Additional district
Magistrate, and such Magistrate shall have all or any of the powers of a District Magistrate under
this Code or under any other law for the time being in force.

(3) Whenever, in consequence of the office of a District Magistrate becoming vacant, any officer
succeeds temporarily to the executive administration of the district, such officer shall, pending the
orders of the State Government, exercise all the powers and perform all the duties respectively
conferred and imposed by this Code on the District Magistrate.

(4) The State Government may place an Executive Magistrate in charge of a sub-division and may
relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-
division shall be called the Sub-divisional Magistrate.

(5) Nothing in this section shall preclude the State Government from conferring, under any law for
the time being in force, on a Commissioner of Police, all or any of the powers of an Executive
Magistrate in relation to a metropolitan area.

In every District, the following Officers are appointed as Executive Magistrates by the Government
under Section 20 CrPC.

o Collector
o Joint Collector
o District Revenue Officer
o Revenue Divisional officer
o Tahsildar

Sr. No. Designation Appointed as Local Jurisdiction

1 Collector District Magistrate Entire District

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 2 Joint Collector Addl.Dist. Magistrate Entire District

3 Dist.Rev.Officer Addl.Dist. Magistrate Entire District

4 Rev.Divil.Officer Sub Divisional Magistrate Entire Revenue

5 Tahsildar Mandal Executive Magistrate Entire Mandal

Additional District Magistrates shall have such of the powers of a District Magistrate under this
code or under any other law for the time being in force. Additional District Magistrates are not
empowered to issue detention order under NSA and Preventive Detention Act.

All Executive Magistrates other than the Addl. District Magistrate shall be subordinate to the
District Magistrate. And every executive Magistrate (other than S.D.M), exercising powers in a
sub-division shall also be subordinate to the Sub Divisional Magistrate, subject, however, to the
general control of the District Magistrate. District Magistrate may from time to time give special
orders, consistent with this Code, as to the distribution of business among the Executive
Magistrates subordinate to him and as to the allocation of business to an Additional District
Magistrate.

Section 21:

Special Executive Magistrates:

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

Generally, Deputy Collectors and Tahsildars and Deputy Tahsildars are appointed as Special
Executive Magistrates to handle urgent Law and Order problems on the special occasions.

Section 22:

Local Jurisdiction of Executive Magistrates:

(1) Subject to the control of the State Government, the District Magistrate may, from time to time,
define the local limits of the areas within which the Executive Magistrates may exercise all or any
of the powers with which they may be invested under this Code.

(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such
Magistrate shall extend throughout the district.

Under Section 22 of the CrPC, the local jurisdiction of the Executive Magistrate is determined by
the District Magistrate, subject to the control of the State Government, within which the Executive
Magistrate may exercise all or any of the powers invested under the code. Unless so determined, the
jurisdiction and powers of every such Magistrate shall extend throughout the district.

Section 23:

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Subordination of Executive Magistrates:

(1) All Executive Magistrates, other than the Additional District Magistrate, shall be subordinate to
the District Magistrate, and every Executive Magistrate (other than the Sub-divisional Magistrate)
exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate,
subject, however, to the general control of the District Magistrate.

(2) The District Magistrate may, from time to time, make rules or give special orders, consistent
with this Code, as to the distribution of business among the Executive Magistrates subordinate to
him and as to the allocation of business to an Additional District Magistrate.

All executive magistrates, excluding the additional district magistrate, shall report to the district
magistrate, and every executive magistrate, excluding the sub-divisional magistrate, shall report to
the sub-divisional magistrate when exercising powers within a sub-division, subject, however, to
the general control of the district magistrate.

The District Magistrate may occasionally issue regulations or special orders regarding the division
of responsibilities among the Executive Magistrates under his supervision and the assignment of
responsibilities to an Additional District Magistrate, as long as they are consistent with this Code.

Powers of Executive Magistrates

The executive magistrates have been assigned various powers under the CrPC, some of which are
as follows:

o Power of arrest u/s 44 CrPC

o Power to compel appearance u/s 61 CrPC
o Power to compel production of documents or things u/s 91 CrPC
o Power of search and seizure u/s 93-105 CrPC
o Power of contempt u/s 345 CrPC
o Power of personal inspection u/s 310 CrPC
o Power demand security u/s 107-110.
o Power to disperse unlawful assemblies (using Civil Force u/s 129 CrPC. or u/s 130 CrPC
Armed Force)
o Power to order removal of public nuisance u/s 133 CrPC
o Power to issue order in urgent cases of nuisance or apprehended danger u/s 144 CrPC
o Power to intervene in a dispute concerning land or water – likely to cause breach of peace
u/s 145 CrPC
o Power to attach subject of dispute u/s 146 CrPC
o Power to enforce warrants of outside Courts u/s 79 CrPC
o Endorsement of warrants by the Executive Magistrate u/s 79 CrPC
o Power of remand for not exceeding 7 days u/s 167 of CrPC
o Power to hold inquest u/s 174 (1) CrPC
o Power of enquiry into the cause of death u/s 176 CrPC

Incidental powers:

o Taking and recording evidence in inquiries u/s 254 CrPC

o Disposal of property pending inquiry and at the conclusion of the inquiry u/s 451-459 CrPC

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 o Forfeiture of bonds furnished to the Executive Magistrates u/s 446 CrPC.
o Issuing commission for examination of witness u/s 284 CrPC
o Holding local inspection u/s 310 CrPC
o Discharge of sureties u/s 444 CrPC
o Punishing for criminal contempt of court in view or in the face of the court u/s 345 CrPC

Power to attest Affidavit.

Affidavit to be used before any court under the CrPC may be sworn or affirmed before and
Executive Magistrate u/s 297 CrPC

Powers on Public Tranquillity:

Usually, the preventive powers are used in conjunction with other provisions of CrPC like
provisions of law:

o Section 144 – Power to issue order in urgent cases of nuisance or apprehended danger –
o Dispersal of unlawful assemblies (Section 129)
o Section 145 – Dispute concerning land or water is likely to cause breach of peace.
o Section 147 – Dispute concerning right of use of land or water
o Section 149 – Police to prevent cognizable offences
o Section 150 – Information of design to commit cognizable offences,
o Section 151 – Arrest to prevent the commission of cognizable offences
o Section 152 – Prevention of injury to public property

Conclusion:

The provisions granting power to the Executive Magistrates have been built along the lines of–
“Prevention is better than cure”. This is indicative of how the role of an executive magistrate is
pertinent to the functioning of the justice system in whatever capacity that they
work in. The powers granted to the Executive Magistrate are limited and are mainly administrative
in nature. There is a difference between the Executive and the Judicial Magistrates with the former
focussing on the administrative functions relating to the maintenance of peace and order
while the latter plays a crucial, inseparable role in the process of investigation.

General Provisions as to Investigation, Inquiry and Trial

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Introduction
This article covers Investigation, Inquiry and trial along with the mode of taking and
recording evidence, its provisions and cases along with acquittal of the person again for the
same offence, appearance by public prosecutors, permission to conduct a prosecution
along with their provisions to give a detailed view to the reader.

Investigation, Inquiry and Trial

An investigation is the first step taken by the police officer. in any matter of offence and
the culprit thereof. Inquiry includes everything done by a Magistrate, irrespective of
whether the case has been challenged or not. A trial is a judicial proceeding that ends
either with conviction or acquittal.

Chapter XXIV of The Code of Criminal Procedure, 1973 deals with the general provisions
of Inquiries and trials. Inquiries and trials are just two stages out of the various stages that
help in deciding the due course of a criminal nature.

Investigation

Investigation has been defined under Section 2(h) of CrPC. Investigation includes all the
proceedings under the Code required for the collection of evidence. It is conducted by a
Police Officer or by any person other than a magistrate, who has been authorized by the
magistrate on this behalf.

Steps of Investigation

Proceeding to the spot where the offence has been committed.

Ascertain the facts and circumstances of the case.
Discovery and arresting the suspected offender.
Collecting evidence of the offence that may consist of:
o Examination of various persons (including accused) and reduction of
his statement into writing, if it is deemed fit by the officer.
o The search and seizure that are considered necessary for investigation
and to produce before trial.

Who has the Authority to Investigate?

The police officer or any other person who has been authorized by a Magistrate on his
behalf is competent to investigate.

Commencement of Investigation

There are two ways to commence the investigation:

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 The police officer in charge has the authority to investigate when the FIR is lodged.
When the complaint has been made to the Magistrate then any person who has
been authorized by the Magistrate can investigate in this regard.

Malafide Investigation

If investigating agencies conduct mala fide investigation, then it is open to correction by

invoking the jurisdiction of the High Court.

Gurman Singh v. State of Rajasthan, 1968

In this case, the Investigating Officer and the Station House Officer had received
information about a murder from an unknown place. It was held that before the
investigation commences a Magistrate should take cognizance of the offence.

State v. Pareshwar Ghasi, 1967

In this case, it was observed by the court that etymologically, the meaning of term
investigation is that which includes any process involving sifting of materials or search of
any relevant data for the purpose of ascertaining facts in issue in a matter in hand.

Inquiry

An inquiry is done either by a Magistrate or it is done by the Court but not by a police
official. Investigation differs from inquiry.

According to Section 2(g) of The Code of Civil Procedure, Inquiry includes every inquiry
except for a trial conducted under this Code, that is done either by a Magistrate or by the
Court. The inquiry relates to the proceedings that are carried out by the Magistrate before
a trial is done.

Inquiry includes all the enquiries that are conducted under this code but it does not
include the trials that are conducted by a Magistrate.

Section 159 of CrPC empowers the Magistrate on a receipt of a police report under Section
157 of CrPC, to hold a preliminary enquiry to ascertain whether an offence has been
committed. If the offence has been committed then, whether any person should be put
upon trial.

Types of Inquiry

Judicial Inquiry
Non-Judicial Inquiry/ Administrative Inquiry
Preliminary Inquiry
Local Inquiry
Inquiry into an offence

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 Inquiry related to matters other than an offence
Under Section 159 of CrPC, the Magistrate is empowered to hold a preliminary inquiry on
receipt of the police report under Section 157 of CrPC, to ascertain whether an offence is
committed and if an offence has been committed then whether any person has to be put
upon trial.

The cases which are triable by the Session Court, the commencement of their proceedings
take place before a Magistrate. The proceedings can be in the nature of an inquiry
preparatory to send the accused for trial before the court of Session.

Magistrate also conducts an enquiry in the cases which are triable by himself
under Section 302 of CrPC. If a complaint is filed before a Magistrate, the Magistrate
examines the witnesses and the complainant on an oath to find out if there is any matter
for the investigation that has to be carried out by a criminal court.

If the Magistrate distrusts the statement made by the complainant and the witnesses, the
Magistrate may dismiss the complaint.

The result of the investigation or inquiry does not establish sufficient ground to proceed
with the case. All these proceedings are done in the nature of the inquiry.

Difference between Investigation and Inquiry

Object: The object of investigation is to collect the evidence related to the case, whereas
the object of inquiry is to determine the truth or falsity of certain facts related to the
offence, in order to take a further step.

Authority: An investigation is done by a Police Officer or by any person other than a

Court or a Magistrate, whereas inquiry must be done by a Magistrate or Court.

Stage: Investigation is the first stage of any case and the Magistrate further proceeds with
an inquiry.

Commencement: Investigation commences after the FIR is lodged or a complaint is

made before a Magistrate, whereas Inquiry commences after the complaint has been filed
to a Magistrate.

Trial

The Code of Criminal Procedure does not define the term trial. A trial is a judicial
proceeding that ends in either a conviction or acquittal but does not discharge anyone. It is
examination and determination by a judicial tribunal over a cause which has jurisdiction
over it.

The trial begins in a warrant case with the framing of the charge when the accused is called
to plead thereto. In a summons case, it is not necessary to frame a formal charge, the trial
starts as soon as the accused is brought before the magistrate and the particulars of the
offence are stated to him. The case which is exclusively triable by a session court, there the

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trial begins only after committal proceedings done by the Magistrate. Appeal and revision
are included in the term trial, they are a continuation of the first trial.

In a criminal trial, the function of the court is to find out whether the person who is
produced before the court as accused, is guilty of the offence with which he has been
charged. To hold that the accused is guilty of the offence with which he has been charged,
the purpose of the court is to scan the material on record to find out whether there is any
trustworthy and reliable evidence on the basis of which it is possible to find the conviction
of the accused.

There are generally three types of trials:

Trial by Court of a session.

Trial by a magistrate (can we summon or warranty case).
Summary trials.

Mode of taking and Recording Evidence

Section 272 to 283 of CrPC read with rules under Chapter XII of General Rules and
Circular Order Volume I, explains the Mode of taking and recording Evidence in criminal
cases. The following are the modes of recording evidence:

Section 273– It is mandatory to record all the evidence only in the presence of the accused
when his personal attendance has been dispensed, the evidence must be recorded in the
presence of a pleader.

Section 274– Magistrate shall record a memorandum of the substance of evidence in the
court language and must be signed by the Magistrate.

Section 275(1)– In all the warrant cases, the evidence of each witness shall be in writing by
Magistrate or under his direction if the Magistrate is unable to do so due to some physical
or other incapacities, under his direction and superintendence, by the officer of the court
who is appointed by the Magistrate on his behalf. The evidence under this subsection is to
be recorded by audio-video electronic.

Section 275(3)– This section permits the Magistrate to record evidence in question and
answer form.

Section 276– In Session Court, the recording should be done in a narrative form. The
presiding officer at his discretion can take down any part of the evidence in question and
answer format which has to be signed by him

Section 278– When the evidence of a witness is completed, it should be read over to the
accused or his pleader. This shouldn’t be done at the end of the day when all the witnesses
have been examined. The evidence if needed can be corrected by the accused.

Section 280– The presiding judge or magistrate is empowered to record the remarks.

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Marking of Exhibits

Some evidence shall be submitted by the prosecution, this evidence has to be marked with
the number in the order in which they are submitted. The documents that are admitted on
behalf of defence shall be marked with capital letter alphabets. If in case neither party does
not accept the evidence then the evidence shall be marked as Ext C-I, C-II etc.

If more than one number of documents are of similar nature, then the small letter or small
number is added in order to distinguish each document in the series. After the evidence is
proved and admitted it shall be marked with a Roman number. Example MO-I, MO-II etc.
the bench clerk of the court shall prepare the list of articles which shall be signed by the
Judge.

Cases

Javer Chand and Ors. V. Pukhraj Surana, 1961

In this case, it was held that the Court does not proceed further whenever an objection is
raised in the court without passing any order on such an objection. If there is an objection
on the stamp duty of a document, then objection will be decided then and there before
proceeding further.

State of Madhya Pradesh v. Budhram, 1995

In this case that accused was convicted for an offence under Section 302 of IPC and was
subjected to a death sentence. The conviction was set aside evidence was not recorded in
his presence, later the case was remanded back for trial.

Banchhanidhi Singh v. State of Orissa, 1989

This case was reported in 1990 Criminal Law Journal. In this case, the accused was facing
trial u/s 379 of IPC. During the time of examination, the lawyer who was representing the
accused was not present and the personal attendance of the accused was dispensed with.
The entire trial was held to be vitiated by the High Court, as the examination was
conducted in gross violation of the mandatory provision of Section 273 of CrPC.

Acquittal of the person again for the same offence

The French terms Autrefois Acquit and Autrefois Convict, meaning “previously acquitted”
and “previously convicted” respectively. A plea of autrefois acquit means that a person
cannot be tried for an offence for the reason that he has been acquitted previously in the
same offence and such a plea combined or taken with a plea of not guilty.

Whereas, a plea of autrefois convict means that a person cannot be tried for an offence for
the reason that he has been convicted previously in the same offence and such a plea
combined with a plea of not guilty.

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Autrefois Acquit and Autrefois Convict are jointly termed as Doctrine of Autrefois Acquit
and Autrefois Convict. This doctrine is basically a rule against double jeopardy, which
means a person cannot be tried once again for the same offence if he has either been
acquitted or convicted in a trial relating to the similar offence.

It is provided under Article 20(2) of The Indian Constitution that “No person shall be
prosecuted and punished for the same offence more than once”. The same principle has
been provided under Section 300 of The Code of Criminal Procedure, 1973 and in Section
26 of The General Clauses Act, 1897.

Section 300 of CrPC is based upon the maxim “nemo debet bis vexari” which means that a
person shall not be brought into danger more than once for the same offence.

Section 300(1) of CrPC

According to Section 300(1), a person should be tried by a Court of competent jurisdiction

for an offence. At the same time, a person cannot be tried for an offence for which he has
been previously convicted. In Section 300(1) the second trial of the person is barred even if
it is the same offence, but then if it is based on same facts for such any other offence for
which charge might have been created against him under Section 221(1) or for which the
accused might have been convicted under Section 221(2).

Section 221(1) provides that if there is a doubt on the facts of the case, as to what offence
has been committed, the accused may be charged with all such offences or any of such
offences or he may be given alternative charge of committing any one of such offences.

Section 221(2) provides that if the accused has been charged with one offence, and it
appears from the evidence that he has committed a different offence, the offence for which
he might have been charged under Section 221(1), he may be convicted of the offence
committed by him, though he might not have been charged with that offence.

Following points are covered under Section 300:

There must be a trial of the accused on the hearing and determination on merits.
There is a ban on the subsequent trial under Section 300(1). But there should be
a trial of the accused, and he must have been convicted or acquitted on a previous
trial. In case, there is no trial then the subsequent trial is not barred for the same
offence.
The charge must be by a Court of competent jurisdiction, if it is not by a court of
competent jurisdiction then it is void ab initio and accused if he has been
acquitted, he will be tried again for the offence. If it is held by the Court that the
first trial was not by a court of competent jurisdiction then it goes for the second
trial.
The person in order to take a plea under this section to bar the second trial for the
same offence, he must have either been convicted or acquitted in the first trial. A
person who has been discharged can be charged again if some other testimony
has been discovered against him.

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 If the competent court has passed a judgement either convicting or acquitting an
accused, but if an order or judgement is set aside by a Court either on revision or
appeal, then such person can be tried again for the same offence, as the previous
trial is annulled.
The acquittal or conviction in the previous case cannot bar the trial of the same
person for a different offence.
State of Tamil Nadu v. Nalini, 1999

In this case, there was a criminal trial for offences under The Terrorist and Disruptive
Activities (Prevention) (TADA),1985 Act now The Prevention of Terrorism Act, 2002
(POTA), and offences under IPC. The subsequent trial for the offences under TADA was
barred as they were based on the same facts and the conviction of the accused was set
aside in the subsequent trial.

Section 300(2) of CrPC

Section 300(2) of CrPC contemplates a situation in which a person is charged and tried
according to Section 220(1) of CrPC. In such a case, the person who is so charged can be
tried again even after the conviction or acquittal order given in the previous case, but there
should be a prior consent of the State Government.

Section 220(1) of CrPC provides that if one series of acts connected together to form the
same transaction if more than one offence is committed by the same person, he may be
charged with and tried at a trial for each such offence.

If a person has been convicted of any offence and for another offence, a separate charge
could have been made, but it was not made in the formal trial against the accused, the
accused is not liable to be tried again for another offence as a matter of course because this
itself might lend to abuse. Thus, due to this reason the later part if this section envisages
the provision that there should be prior consent of State Government before going for a
second trial. It is required by the State Government to give consent only after due
consideration of facts and circumstances of the case with a view of the promotion of
justice.

Section 300(3) of CrPC

Section 300(3) provides a situation where a person is convicted of any offence causing
such consequences, that the act along with the consequences constitutes a different offence
other than the one for which the accused had been convicted. In such situations, if the
consequences did not occur or the court is not aware of such consequences at the time
when the person was convicted, then afterwards the person may be tried for such an
offence.

Section 300(3) only uses the words “a person convicted” and not acquitted. Therefore, the
rule does not apply in situations where the person has been acquitted.

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Illustration

S is tried for causing grievous hurt to R, S is convicted for this offence. It is found
later that R dies due to the grievous hurt. Here, in this case, S may be tried
separately once again for culpable homicide.
If S is acquitted of causing grievous hurt to R, S cannot be tried once again for
culpable homicide under this Section, if later it is found that R dies due to the
grievous hurt.

Section 300(4) of CrPC

Section 300(4) provides where a person has been convicted or has been acquitted of any
offence constituted under any act, he may be charged with and tried again for the same for
an offence based on the same facts notwithstanding his conviction or acquittal, if the Court
in which he was previously tried was not competent to try the offence with which he has
been subsequently charged.

Illustration
X is tried for robbery by a first-class Judicial Magistrate. Later on, the same facts he is
charged with the offence of dacoity. In this case, since a Judicial Magistrate of first class
cannot try the subsequent offence of dacoity as it is triable only by a court if it is a Sessions
court, hence, the subsequent trial of X irrespective of whether he has been convicted or
acquitted, will not get barred.

Section 300(5) of CrPC

Section 300(5) provides a situation where a person who has been discharged under
Section 258 of CrPC, he cannot be tried for the same offence once again without the
previous consent of the court which gave an order of discharge or any other court which is
subordinate of former Court. This provision provides a check against the abuse of power of
a fresh prosecution, especially in discharge cases under the said provisions, thus, it treats
discharges differently under the other provisions of the law.

This section does not apply to discharge cases which have been instituted on a complaint.
Discharge under Section 258 can never be regarded as an acquittal under Section 300(5).
It has been provided in the explanation of Section 300 that discharge of an accused or
dismissal of a complaint does not refer to acquittal under this section.

Section 300(6) of CrPC

Section 300(6) provides specifically that “nothing in section 300 shall affect the provisions
of section 26 of the General Clauses Act, 1897 or of section 188 of this code.” If the accused
got acquitted in the first trial on a specific charge for an offence that has been constituted
under the same facts under a different enactment.

State of M.P. v. Veereshwar Rao Agnihotry, 1957

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In this case, it was held that under Section 409 of IPC there cannot be any prohibition to a
trial and a conviction, in a case where the accused had been tried and acquitted of an
offence under Section 52 of The Prevention of Corruption Act, 1947 that has been
constituted on identical facts.

Appearance by public prosecutors

Section 2(u) of CrPC defines Public Prosecutor. It includes any person acting as per the
directions of the Public Prosecutor.

Section 24 of The Code of Criminal Procedure defines Public Prosecutor. A Public

Prosecutor is considered as an agent of a State, he represents the interest of the common
people in the criminal justice system. They serve the principle of audi alteram partem i.e.
no person shall be condemned unheard.

Babu v. State of Kerala, 2010

In this case, it was observed by the Court that the Public Prosecutors are ministers of
justice whose duty is to assist the judge in the administration of justice.

Directorate of Public Prosecutor supervises as well as scrutinise the functions of various

prosecution agencies at Session level and Assistant Session level except for the High
Court.

Section 24 of CrPC gives the hierarchy of Public Prosecutor

Public Prosecutor appointed by the Central Government.

Public Prosecutor appointed by the State Government.
Additional Public Prosecutor appointed by the State Government.
Special Public Prosecutor appointed by the Central Government.
Special Public Prosecutor appointed by the State Government.
Section 24 talks about the appointment of Public Prosecutor in District Court and the High
Court by the State Government and Central Government respectively.

Section 24(3)– The Public Prosecutor needs to be appointed in every district and an
Additional Public Prosecutor may be appointed.

Section 24(4)– The District Magistrate in consultation with the Session Judge has to
prepare a panel of names that are considered fit for such an appointment.

Section 24(5)– The person can not be appointed as a Public Prosecutor or as an Additional
Public Prosecutor in a district by the State Government unless the person’s name appears
on the panel that is prepared under subsection 4.

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Section 24(6)– Explains a case where a state has a local cadre of the prosecuting officers, if
in the cadre there is no such suitable person for an appointment, the appointment must be
made from the panel that is prepared under subsection 4.

Section 24(7)– The person can be appointed as a Public Prosecutor only after practising as
an Advocate for a minimum 7 years period.

It is stated in Section 25 of CrPC that an Assistant Public Prosecutor in the district is

appointed for the purpose of conducting a prosecution in a Magistrate Court. For the
purpose of conducting a case, the Court may appoint more than one Assistant Public
Prosecutor.

The District Magistrate may appoint any other person in absence of Assistant Public
Prosecutor to act as an Assistant Public Prosecutor.

The permission is granted under Section 321 of CrPC to Public Prosecutor or Assistant
Public Prosecutor to withdraw from the case or prosecution with the Court permission
before the pronouncement of a judgement.

Functions of Public Prosecutor

Public Prosecutor- supervises the functions of an Additional Public Prosecutor in

Session Court and High Court.
ChiefProsecutor- supervises the functions of an Assistant Public Prosecutor in a
Metropolitan Magistrate Court.
Additional Prosecutor- conducts criminal proceedings in a Session Court.
Assistant Public Prosecutor- examine the charge sheet that is operated by the
agencies and submits acquittal or discharge. They are even responsible for the
evaluation of evidence as well as filing of petitions. They even conduct criminal
proceedings in Metropolitan Magistrate Court.
Directorof Prosecution- This is the head office, they exercise overall control and
supervision of officers of Directorate. They look after the accounts branch.

Role of a Public Prosecutor

The role of a public prosecutor is divided into parts:

In the investigation process.

During trial.

Role of a Public Prosecutor during the investigation process

To obtain an arrest warrant by making an appearance in the Court.

To obtain a search warrant in order to conduct a search in the specified premises.

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 To obtain remand of police custody for the interrogation that includes custodial
interrogation of the accused.
To initiate a proceeding for declaring the non-traceable offender as a proclaimed
offender.
To record in the police report the evidence of the accused with regard to the
advisability of the prosecution.

Role of a public prosecutor at the time of trial

If the accused is proven guilty then the Public Prosecutor and the defence counsel
argue further to decide the quantum of the punishment.
The prosecutors have a responsibility to call upon all the witnesses whose evidence
is an essential element in deciding the case. They also have to cross-examine the
witness and make sure that no witness is left unexamined and to produce all
necessary documents.

Cases

Vineet Narain v.Union of India, 1997

In this case, high political dignitaries were involved. There was a failure in the
investigation by the CBI. The Court held that there are no restrictions or limitations in
launching prosecutors to initiate the investigation proceedings.

Zahira Habibullah and Anr v. State of Gujarat and Ors, 2006

This case is also known as Best Bakery case. In this case, there was a death of fourteen
persons in Vadodara due to burning down of a construction. The matter went to the
Supreme Court, where the court held that “Public Prosecutors acted more as the defence
rather than focusing on presenting the truth before the Court”.

Jitendra Kumar @ Ajju v. State (NCT of Delhi) and Anr, 1999

In this case, it was stated by the High Court “the Public Prosecutor acts on the behalf of the
state. The Public Prosecutors are ministers of justice who play a pivotal role in the
administration of criminal justice”.

Tikam Singh v. State and Ors, 2006

In this case, there is a public element attached to the office of the Public Prosecutor. The
public prosecutor does not act as a complainant but as a representative if a state. The role
of Private Counsel is different from the role of a Public Prosecutor.

Kunja Subidhi and Anr v. Emperor, 1928

In this case, it was held that the duty of the Public Prosecutor is to place all relevant
evidence before the Court. Whether the evidence is in favour of or against the accused, it
should be left upon the Court to decide.

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Permission to conduct a prosecution
Section 302 of CrPC grants permission to the Magistrate who is inquiring into or trying a
case may permit the prosecution to be conducted by any person who is not a police officer
but should be below a rank of Inspector. But no person other than Advocate-General or a
Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be
entitled to conduct prosecution without such permission.

A police officer cannot be permitted to conduct the prosecution if he took part in the
investigation process of the offence with respect to the offence with which the accused is
being prosecuted.

A Magistrate has the power to allow any person or a complainant to appear personally or
through a pleader, to conduct the prosecution.

Section 302 of CrPC and two Judgements of the Supreme Court of M/s J.K. International
vs. State, Govt of NCT of Delhi and Ors. are the answer to the proposition that a trial by a
Magistrate, a complainant or any other person in addition to a Public Prosecutor can assist
the Court and can also participate in the conduct of a trial. The Supreme Court also
adhered to the law of the land binding on all Courts.

M/s J.K. International v. State, Govt of NCT of Delhi, 2001

In this case, the Supreme Court held that the scope of allowing any private person who is
intending to participate in the conduct of prosecution is wider under Section 302. If the
court thinks that on a request of a party, the cause of justice could be served better if such
permission is granted then such permission should generally be granted by the Court.

Dhariwal Industries Ltd v. Kishori Wadhwani and Ors., 2012

In this case, it was held that the scheme under the Code indicates that a person aggrieved
of an offence is not altogether wiped out from the trial scenario, merely on the ground that
the investigation was Section 225 carried out by police and the charge sheet was laid by
them. The fact that the Court had taken cognizance of the offence, even this is not
sufficient to debar him from reaching the court to ventilate his grievance.

Even in the Sessions Court where the only authority is the Public Prosecutor, is
empowered to conduct prosecution under Section 225 of the Code. A private person
aggrieved of an offence who is involved in the case is not debarred altogether from
participating in a trial.

The private person who has the permission to conduct prosecution in the Magistrate Court
can engage a counsel on his behalf to do the needful.

It is further amplified that if a private person is aggrieved of an offence that has been
committed against him or against a person whom he is interested in, he can approach the
magistrate and seek permission to conduct the prosecution himself. The Court can accept
or reject the request, it is open to the Court decision.

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If the Court is of the opinion that the justice can be served better if such permission is
granted then generally such permission is granted by the Court. This wider amplitude is
limited to Magistrate Courts, as the private person’s right to participate in the Session
Court for the conduct of prosecution is restricted as it is subject under the control of the
Public Prosecutor.

Conclusion
The article describes investigation, inquiry and trial, provisions related to the mode of
taking and recording evidence, the acquittal of the person for the same offence, an
appearance by the public prosecutor and permission to conduct a prosecution, their
provisions under the Code along with related cases.

Superintendent of Customs (Audit) सीमा शुल्क अधीक्षक (लेखापरीक्षा)

गोविन्द कु मार अहिरवार Govind Kumar Ahirvar

सीमा शुल्क अधीक्षक (लेखापरीक्षा) Superintendent of Customs (Audit)

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