CODE OF CRIMINAL PROCEDURE

APPEAL
Section 341 of CODE OF CRIMINAL PROCEDURE, 1973 defines Appeal. Until there is an complaint
under Section 340 of this code there is no Right to Appeal. An appeal, Review and Revision are under the
rights bestowed on each and every citizen. In simple term an appeal is a case that has been filed to the
superior court to make correction in the decision of the inferior court. An “Appeal” means the right of
carrying a particular case from an inferior to a superior court with a view to ascertain whether the judgment
is sustainable or nor. An appeal is a statute that only exists where expressly given. Besides the present
chapter there are other provisions of the code which also gives Right to Appeal such as Sec 86, 250,
351,449,454,458(2).Therefore, through the Right to appeal is integral to fair procedure, natural justice and
normative universality. The provisions relating to criminal appeals are contained in Chapter 29 Section 372-
394 of the Code of Criminal Procedure. Thus this chapter is divided into two parts
1. Types of Appeals- When an appeal lies or not under section 372-380
2. Procedure for dealing with an appeal and powers of appellate court under section 381-394
OFFENCES FROM THE CONVICTION AGAINST WHICH APPEAL LIES-
 SEC 372 OF THE CODE OF CRIMINAL PROCEDURE, 1973 provides that no appeal shall lie from
any judgment or order of a criminal court except as provided for by this code or by any other law for
the time being forced. Basically where the Right of appeal is not exercised no proceeding by way of
revision can be entertainment.
 Any person who has been ordered under Section 117 to give security for keeping the peace or for
good behaviour or who is aggrieved by any order refusing to accept or rejecting a surety under
Section 121 may appeal against such order to the Court of sessions .
 SEC 373 states that nothing in this section shall apply to persons the proceedings against whom are
laid before a sessions judge in accordance with the provision of Section 122(2) and 122(4).
 The District Magistrate may in case direct a public prosecutor to present an appeal to the court of
session from an order of acquittal passed by a magistrate in respect of a cognizable and non-bailable
offence.

 Who can Appeal:

 A person who has been judicially convicted can appeal the sentence. Filing an appeal does
not mean that the matter will be reconsidered. Issues raised in the court record are used for
appeal. The court may hear new evidence from the applicant if the circumstances require it.
To prove this, the court must submit witnesses detailing their prepared statements for the
new trial. It is the applicant's duty to convince the court that:

 · claims that the jury’s judgement should be overturned because it was arbitrary or not
supported by the evidence,

 · the judge made an error in interpreting the law, or

 · there was a miscarriage of justice.

  When an appeal is filed, the court can do almost anything. The court can confirm the
decision, cancel the decision, replace the acquittal or order a new trial. Even if the court rules
in favor of the appellant due to a technicality of the law, it may still decide to dismiss the
appeal if it finds that no serious error has occurred. The head of the prosecution can also file
a complaint with the appellate court and request that the appellate court overturn the
acquittal and re-examine the case or appeal the provisional decision.

 Subsequent appeals

 A person convicted in court may file a second or subsequent appeal with the permission of
the Court of Appeal. The person applying for leave to appeal must demonstrate to the court
that there is new and convincing evidence that must be taken into account. If the court finds
that there has been a material error in sentencing, it can hear a new appeal, overturn the
conviction and replace the acquittal, or order a new trial.

1. APPEAL BY STATE GOVERNMENT & DISCUSS THE PROVISION OF APPEAL AGAINST

ACQUITTAL
• For enhancement of sentence – Section 377
• Against the acquittal of accused – Section 378

Section 377 CrPC – Appeal Against Sentence

The section empowers the State Government to file an appeal through a Public Prosecutor at the
Court of Session or High Court on the grounds of insufficiency of the sentence:
• If an order of sentence is given by Magistrate, then appeal to lie to Court of Session.
• If an order of sentence is given by any other court, then appeal to lie to High Court.
If someone disagrees with the judge's decision, he has the right to appeal to the administrative court. If the lower
court makes a decision, it can be appealed to the Supreme Court.
The direction will be given to the Public Prosecutor by the central government if the investigation
is done by Delhi Special Police Establishment or any other central agency.
When such appeal or order for enhancement of punishment is filed, such order will not be passed
until a reasonable opportunity of being heard is given to the accused. Defendants are expected to receive a fair trial
before an appeal or decision to increase their sentence.

Section 378 CrPC – Appeal in Case of Acquittal

In this section, District Magistrate is empowered to direct the Public Prosecutor to file an appeal
to the Court of Session for the order of acquittal done by any Magistrate in a matter of cognizable
and non-bailable offence.
The State is also empowered to direct the Public Prosecutor to file an appeal for the order acquittal
done by any court other than High Court for appeal or revision.
• If the investigation is done by Delhi Special Police Establishment or any central agency,
the direction to file an appeal will be given by the Central Government.
• It is to be noted that prior permission of the High Court will be taken before filing an appeal at the HC.
• If an order of acquittal is given in a matter of case instituted on complaint, and High Court grants special
permission to present the appeal, then such appeal can be presented by the complaint.
• If the complainant is a government servant, then the application can be moved within six months from the order
of acquittal.
• If the complainant is not a government servant, then the application can be moved within 60 days from the order
of acquittal. If such appeal is rejected, no appeal from an order of acquittal shall lie.
If a judge makes an acquittal in a case involving a cognizable and a non-cognizable offence, the district judge can
order the prosecutor to appeal the decision to the Sessions Court. If the acquittal decision is made by a court other
than the Supreme Court, the state can still request a review of the decision by appealing to that court.
It is worth mentioning that the permission of the Supreme Court is requested before filing an appeal there.
If the Supreme Court grants special leave to appeal, the appeal may be filed if the case initiated on the basis of the
appeal is later dismissed. An acquitted civil servant may file a new application within six months of being
acquitted.
(ii) As per section 377 of the Cr.PC, the State Govt. or the Central Govt. as the case may be, may direct the public
prosecutor to present an appeal to the High Court against the sentence passed by a trial court on the ground of
inadequacy. The High Court may enhance the sentence to a sentence of death after giving an opportunity of
hearing to the convict. (Sec.386(c) (iii), Cr.PC).
High Court can enhance the sentence passed by a trial court not only where the State has preferred an appeal
against the sentence, but also where no appeal has been preferred by the State on the ground of inadequacy of
sentence, in exercise of its suo-motu revisional power vested in it under section 397 read with section 401 Cr.PC.
The Supreme Court in Nadir Khan vs. The State (Delhi Admn.), AIR 1976 SC 2205 , has held that High Court
58while exercising its criminal revisional jurisdiction has power to act suo-motu to enhance the sentence in
appropriate case even in absence of an appeal against the adequacy of sentence as provided in section 377 of the
Cr.PC.
Again in Sahib Singh vs. State of Haryana, AIR 1990 SC 1188 , the Supreme Court has observed that the failure
on the part of the State Govt. to prefer an appeal does not, however, preclude the High Court from exercising suo-
motu power of the revision under section 397 read with section 401 of the Cr.PC, since High Court itself is
empowered to call for the record of proceedings of any court subordinate to it.
But before enhancing the sentence the High Court has to give notice and opportunity of hearing on the question of
sentence to the convict, either in person or through counsel. (see also Surjit Singh vs. State of Punjab, AIR 1984
SC 1910 (2)) It is evident that High Court can enhance the sentence under its suo-motu revisional power, even
without an appeal filed by the State. But where the High Court enhances the sentence passed by trial Court and
passes even sentence of death, no appeal, as of right can be preferred in the Supreme Court against the order of
enhancement of sentence.

SECTION 378
 Section 378 of the Code of Criminal Procedure, 1973 (CrPC):
o Direction by District Magistrate and State Government
 The District Magistrate may, in any case, direct the Public Prosecutor to present an
appeal to the Court of Session from an order of acquittal passed by a Magistrate in
respect of a cognizable and non-bailable offence.
 The State Government may, in any case, direct the Public Prosecutor to present an
appeal to the HC from an original or appellate order of an acquittal passed by any
Court other than a HC not being an order under clause (a) or an order of acquittal
passed by the Court of Session in revision.
o Appeal in Cases Investigated by Special Agencies
 If such an order of acquittal is passed in any case investigated by the Delhi Special
Police Establishment constituted under the Delhi Special Police Establishment Act,
1946 or by any other agency empowered to make investigation into an offence under
any Central Act other than this Code, the Central Government may, subject to the
provisions of Sub-Section (3), also direct the Public Prosecutor to present an appeal to
the Court of Session or to the HC as specified.
o Leave of High Court for Appeal
  No appeal under Sub-Section (1) or Sub-Section (2) shall be entertained except with
the leave of the HC.
o Special Leave to Appeal
 If such an order of acquittal is passed in any case instituted upon complaint and the
HC, on an application made to it by the complainant, grants special leave to appeal
from the order of acquittal, the complainant may present such an appeal to the High
Court.
 No application under Sub-Section (4) for the grant of special leave to appeal from an
order of acquittal shall be entertained by the HC after the expiry of six months, where
the complainant is a public servant, and sixty days in every other case, computed from
the date of that order of acquittal.
o Consequences of Refusal of Special Leave
 If, in any case, the application under Sub-Section (4) for the grant of special leave to
appeal from an order of acquittal is refused, no appeal from that order of acquittal shall
lie under Sub-Section (1) or under Sub-Section (2).
 Section 379 of CrPC:
o Where the HC has, on appeal reversed an order of acquittal of an accused person and
convicted him and sentenced him to death or to imprisonment for life or to imprisonment for a
term of ten years or more, he may appeal to the SC.
 In an appeal under this section the High Court has full power to review the supportive evidence on
which the order of acquittal was based and come to its conclusion. The High Court always gives
proper weight and consideration to such matters as the credibility of witnesses and the presumption of
innocence.
 Under Indian Constitution Article 132, 134 and 136 it is possible to present an appeal to the Supreme
Court against the order of acquittal passed by the High Court. An appeal against the acquittal must be
filed in the limitation period prescribed under the Article 114 of the Limitation Act, 1963. No
application will be entertained for grant of leave by High Court after the expiry of 6 months and after
60 days in other cases.Appeal against an order of acquittal is an extraordinary remedy. Where the
initial presumption of innocence in favour of the accused has been duly vindicated by a decision of
competent court, an appeal against such decisions of acquittal means putting of interests of the
accused once again in serious jeopardy.

In Mallappa & Ors. v. State of Karnataka, Supreme Court,

 Appreciation of evidence is the core element of a criminal trial, and such appreciation must be
comprehensive inclusive of all evidence, oral or documentary;
 Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a
ground of challenge;
 If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the
accused shall ordinarily be followed;
 If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not
justify the reversal of acquittal;
 If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it
must specifically address all the reasons given by the Trial Court for acquittal and must cover all the
facts;
 In a case of reversal from acquittal to conviction, the appellate Court must demonstrate illegality,
perversity or error of law or fact in the decision of the Trial Court.
Statutory Provisions
 Section 378(1) of the Criminal Procedure Code 1973 (in short called “CrPC”) provides for presenting an appeal by
the Public Prosecutor on the direction of the State Government before the High Court against an order of acquittal,
be it original or appellate, passed by any court other than the High Court.
Section 378(2) of the CrPC vests power to issue directions to the Public Prosecutor in the Central Government in
cases where the investigation is conducted by the Central Bureau of Investigation, or any other investigating
agency, like NIA, or ED.
Section 378(3) of the CrPC provides the discretion to the High Court to grant leave for entertaining such an appeal.
Section 378(4) of the CrPC provides that the complainant may present an appeal to the High Court when the case
was instituted on a complaint. A case is instituted on a complaint under Section 200 of the Criminal procedure
Code 1973. But, before the appeal may be presented, a petition for special leave to appeal against the order of
acquittal has to be filed before the High Court. If such special leave is granted, only then the appeal shall be heard
on merits.
Section 378(5) of the CrPC provides a time limit for approaching the High Court against an order of acquittal
under Section 378(4). In a case where the complainant is a public servant, the time limit is 6 months. In all other
cases, the time limit is 60 days from the date of order of acquittal.
Section 378(6) of the CrPC bars any appeal by the Public Prosecutor under subsection (1) or (2) if the appeal by
the complainant under subsection (4) of Section 378 CrPC has been refused.
High Court’s Powers in deciding appeals against Acquittals
The Hon’ble Apex Court has laid down in various cases that the High Court shall tread lightly while interfering in
cases where trial courts have given acquittals.
Though the High Courts have the power to scan through the evidence and re-appreciate the evidence in its entirety.
However, the Court shall do so only when it finds an absolute assurance of guilt on the basis of evidence on
record, and not merely because the High Court can take one more possible view or a different view.
In the case of State of Madhya Pradesh vs. Ramesh and another, the Supreme Court held that if two reasonable
views are possible on the basis of the evidence on record, then the Court shall not disturb the findings of the
acquittal.
In the case of Minal Das and others vs. State of Tripura, the Supreme Court held that after reappreciating,
reconsidering, and reviewing the entire evidence, the High Court shall give cogent and adequate reasons for setting
aside the Acquittal.
In Rohtash vs. State of Haryana, it was held that the High Court shall interfere with the acquittal only in
exceptional cases where there are compelling circumstances and the judgment is found to be perverse.
In the case of Chandrappa and others vs. State of Karnataka, it was held that though the High Court has full power
to reconsider, reappreciate, and review the entire evidence, it must bear in mind that there is double presumption in
favor of the accused. Firstly, the one available to him under the fundamental principles of Criminal Jurisprudence
that every person must be presumed innocent until proven guilty, and secondly, when the presumption has been
further reinforced by securing an acquittal.
Conclusion
It is safe to conclude that the jurisprudence of intervention by the High Court has evolved since the findings in
Sheo Swarup vs. King-Emperor, where the principles of intervention were first laid down.
It is further pertinent to say that the High Court, being the first appellate court, shall reappreciate the evidence on
record in its entirety. However, there are two factors that act as filters for the cases in which the acquittal must not
be overturned. These are:
1. Double Presumption of Innocence must be borne in mind by the High Court.
2. If the evidence produces two Reasonable Views, then the High Court shall not intervene.

3) Does an appeal lie in petty cases?

The word appeal has not been defined in the Criminal Procedure Code. Neither the definition is available in the
General Clauses Act. Criminal appeal has been discussed in chapter 29 of the Criminal Procedure Code under
sections 372 to 394. The chapter is not absolute and exhaustive, as many provisions related to appeals are provided
out of this chapter, for instance, sections 86, 250, 351, 449, 454, 458(2). An appeal can be defined as a complaint
made to a higher court with the intent that the order, finding, sentence passed by the lower court is illegal or
erroneous (wrong, incorrect). Fundamental Principles of Appeal The fundamental principles of appeal under CrPC
are as follows: • An appeal is a creature of statute. • No inherent right to file an appeal. • No appeal only against
conviction. • No appeal in petty cases. • Generally, there is no appeal on conviction on a plea of guilt
Section 376 CrPC- No appeal in petty cases
Petty misdemeanours shall not be subject to appeal. The procedures for handling petty matters vary by jurisdiction.
The following are examples of minor offences:
 In the instance of the High Court, the possible penalties include either imprisonment for up to 6
months or a fine of up to Rs 1000, or both.
 Up to three months in jail time, a Rs. 200 fine, or both if found guilty in court of session.
 Up to 3 months in jail, or a fine of Rs. 200, whichever is greater, if prosecuted by a metropolitan
magistrate.
 There is a Rs 100 fine if you are caught breaking a law in front of a judicial magistrate.
 Up to Rs. 200 in the instance of a Magistrate authorised under Section 260 of the Criminal Procedure
Code.
Further, revision can be filed in the superior court by the aggrieved party of any judgment passed by the
subordinate court where no appeal lies. Revision is the discretionary and supervisory power of the superior court.
Unlike an appeal, it does not warrant any statutory right to the aggrieved part.

3. What are the provisions regarding appeal against conviction?

Section 374 CrPC – Appeal from convictions
 High Court orders of conviction issued while exercising original criminal jurisdiction have the right
to be appealed to the Supreme Court.
 Conviction orders issued by the Court of Session or Additional Court of Session are appealable to the
High Court.
 If the Court of Session or the Additional Court of Session imposes a sentence of more than seven
years in prison, the defendant may appeal the decision to the High Court.
 Appeals may be taken to the Court of Session from convictions handed down by the Metropolitan
Magistrate, Judicial Magistrate I, or Judicial Magistrate II.
 The court of session hears appeals from anyone who is dissatisfied with the results of a criminal
proceeding under Sections 325 and 360 of the Criminal Procedure Code.
Exception to Section 374
The exceptions to Section 374 of the Criminal Procedure Code are found in Sections 375 and 376 of the
CrPC as given below:
1. There is no right to appeal a conviction where the defendant has made a guilty plea and been found
guilty on the basis of that plea.
2. A person who has been found guilty and sentenced by a high court to a period of imprisonment of not
more than six months or a fine of not more than one thousand rupees, or to both such imprisonment
and fine, shall not be permitted to file an appeal against that sentence.
 3. A person who has been found guilty and sentenced by a court of the session or a metropolitan
magistrate to a period of imprisonment of not more than three months or a fine of not more than two
hundred rupees, or to both such imprisonment and fine, shall not be permitted to file an appeal against
that sentence.
4. A person who has been fined by a first-class magistrate of not more than one hundred rupees shall not
be permitted to file an appeal against that sentence.

5. Exception to Section 374 CrPC

Section 375 and section 376 of the Criminal Procedure Code are exceptions to sections

374 of the Criminal Procedure Code, elaborated as follows.

6. Section 375 CrPC – No Appeal in Certain Cases Where the Accused Pleads Guilty

7. If the accused pleads guilty at High Court and the court takes the plea on record and

convicts the person, then no appeal shall lie.

8. Where the accused pleads guilty at a court other than High Court, an appeal for the

sentence is allowed.

Appeal on sentence is allowed based on:

1. Extent.

2. Legality of the sentence.

9. APPEAL IN PETTY CASES

4. Explain 'Revisional Jurisdiction' of a Court

Sections 397 to 401 of the Code of Criminal Procedure (CrPC), 1973, are concerned with the High Court’s
revisional jurisdiction. The revisional jurisdiction is drawn from three sources:
1. Sections 397, 398, 399, 400 and 401 of the Criminal Procedure Code;
2. Article 227 of the Constitution of India; and
3. The power to issue the writ of certiorari.
In this article, we will be especially dealing with Section 397 of the CrPC, which talks about the power of the high
court and session court with regard to revisional jurisdiction. In order to eliminate the potential for any miscarriage
of justice in circumstances when no right of appeal is available, the Code has established another review
mechanism, namely, “revision.” Sections 397, 398, 399, 400, 401, 402, 403, 404 and 405 deal with the higher
courts’ “revision” powers and the method for using these powers. The upper courts have broad revisionary powers
that are discretionary in nature. As a result, no party has an opportunity to be heard before any court exercising
such powers.
Scope of revision under Section 397 CrPC
In the case of Amit Kapoor v. Ramesh Chander (2012), the Supreme Court highlighted the scope of revision under
Sections 397 and 401 CrPC read with Section 482 CrPC, where it was stated that if one looks into the judicial
pronouncements of this Court, it arises that the revisional jurisdiction can be exercised where the judgements under
issue are hugely inaccurate, there is no adherence with the provisions of law, the recorded finding is not supported
by evidence, relevant evidence is omitted, or judicial discretion is used arbitrarily or perversely. Though the
provision does not contain the phrase “prevent abuse of any court’s procedure or otherwise to achieve the goals of
justice,” the power of Section 397 is quite restricted. “The legality, validity, or accuracy of a court order is the
basic cornerstone of exercising authority under Section 397, but justice must also be done.“
Section 397 CrPC: an overview
The power of the revisional or appellate court [Subsection (1)]
Section 397 empowers the high court or the court of session to call and investigate the record of any proceeding
before any subordinate court for the purpose of ascertaining:
1. The accuracy, legal validity, or prudence of any order passed by the lower court; or
2. The consistency of any proceedings of such a court.
The high court or court of session may also order that the implementation of any judgement or order be suspended
and that the accused be freed on bail or his own bond pending the examination of the record. Section 397 of the
Code also empowers revisional courts to grant bail.
All magistrates are subordinate to the sessions judge for the purposes of this Section [explanation]
Section 397(1) emphasises that, for the purposes of Sections 397 and 398, all magistrates, whether executive or
judicial, are regarded as subordinate to the sessions judge. Where there is no appeal, the only choice is revision.
Interlocutory orders may not be revised [Subsection (2)]
Subsection (2) prohibits the use of the revision authority in connection with any interlocutory order made in any
appeal, inquiry, trial, or other action. This provision was enacted in order to expedite the resolution of criminal
cases. It was believed that revision petitions against interlocutory orders would not only prolong but even
occasionally destroy justice. For example a bail order, a call for a document, and so on. These orders are not
particularly important, and the merits of the case will not be altered by them. In general, revision is based on a
non-interlocutory order. However, if an interlocutory order is issued without jurisdiction (i.e., because the court
lacks the authority to issue the order), a revision will be granted. For example, the rejection of the complaint is a
substantial order since it directly affects the merits of the case as a whole, thus it is not an interlocutory order and
revision will be granted.
The Supreme Court in K.K. Patel and Anr. v. State of Gujarat (2000) ruled that an order issued during an interim
stage is not the exclusive test. If a party’s objection results in the conclusion of the action, the order issued in
response to that objection is not an interlocutory order. Where, in a revision filed by the appellant against the
magistrate’s order taking cognizance of the offences alleged in the respondent’s complaint, the appellant brought
up an objection that the claim was precluded by limitation under Section 161 of the Bombay Police Act, 1951, and
the objection, if affirmed, would have the impact of dismissing the whole prosecution proceedings against the
appellant, the magistrate’s order could not be treated as an interlocutory order. It was not covered by Section
397(2).
No further applications for revision are allowed after one application [Subsection (3)]
According to sub-section (3), one cannot submit a revision application in both the high court and the court of
sessions at the same time; hence, parallel applications are not permitted. If the court of session denies the
application, the applicant may appeal to the high court, but not the other way around.
The term “made” implies creation, entertainment, and decision-making. If a session judge determines that a
request should be brought to the high court, a new application to the high court is competent. The sub-section
expressly prohibits the high court from entertaining an application from anybody who has applied to the session
judge, and vice versa.
Objective of revisional jurisdiction u/s 397 CrPC
The purpose of the revision provisions is to rectify a legal deficiency or a jurisdictional or legal mistake. There
must be a well-founded violation, and it may not be appropriate for the court to investigate orders that, on the
surface, show thorough study and appear to be in compliance with the law. Revisional jurisdiction can be sought
when decisions are severely inaccurate, there is no conformity with the legal provisions, the judgement recorded is
based on no proper evidence, important evidence is omitted, or judicial power is exercised arbitrarily or perversely.
These are not exhaustive classifications, but rather examples. Each case would have to be decided individually.
Another widely acknowledged standard is that the higher court’s revisional authority is extremely limited and
cannot be used on a regular basis. One of the limitations is that it cannot be used against an interim or interlocutory
order.
Limitations of revisional jurisdiction
Although the revisional powers are broad, they are constrained by some limits. For example,
1. Where an appeal exists but no appeal is filed, usually, no proceeding by way of revision shall be
entertained at the request of the party who might have appealed;
2. Revisional powers are not operative in regard to any interlocutory order passed in any appeal, inquiry,
or trial;
3. The court exercising revisional powers is not permitted to transform an acquittal finding into a
conviction finding;
4. A person may make only one revision application, either to the court of session or to the high court; if
such a request is made to one court, no additional application from the same party will be heard by
the other court.
Suo moto exercise of power
The high court cannot reject a revision on the technical grounds of limitation. The high court should use its suo
moto revision power because it cannot permit irregularities and a miscarriage of justice to continue. Subsection (2)
expressly prohibits the reconsideration of interlocutory orders. In the matter of Naresh Kumar v. Registrar
(2008), the Punjab and Haryana High Court ruled in favour of the petitioner. The suo moto authority of revision
does not extend to converting suo moto revision procedures into an appeal against acquittal and subsequently
convicting the accused. The High Court should have reversed the acquittal ruling and remanded the case for retrial.
The Supreme Court overturned the conviction decision and remanded the matter to the trial court for further
proceedings in conformity with the law. The appellant was permitted to seek bail.
Section 397 read with Section 482 CrPC
The Supreme Court agreed with the legal argument in Dhariwal Tobacco Products Ltd v. State of Maharashtra
(2008) that the existence of an additional option of criminal revision under Section 397 of the CrPC cannot be a
valid reason to dismiss an application under Section 482 of the CrPC. However, in the case of Mohit alias Sonu v.
State of Uttar Pradesh (2013), an opposite opinion was held that when an order under issue is not interlocutory in
character and is amenable to the high court’s revisional jurisdiction, there should be a bar to using the high court’s
inherent jurisdiction. Because of this dispute, these matters were sent to the Hon’ble Chief Justice for referral to a
bigger bench.
A three-judge bench in Prabhu Chawla v. State of Rajasthan (2016) held that Section 482 starts with a non-
obstante clause, which states, “Nothing contained in this Code shall be considered to restrict or actually impact
the inherent jurisdiction of the High Court to make such orders as may be required to give effect to any order
under this code, to stop the abuse of the procedure of any Court, or otherwise to safeguard the ends of justice.”
Because Section 397 of the CrPC applies to all orders other than interlocutory ones, a contrary interpretation
would restrict the availability of inherent powers under Section 482 of the CrPC to minor interlocutory orders. It
was decided that the case of Mohit alias Sonu did not adequately articulate the law with respect to the High
Court’s inherent power under Section 482 of the CrPC.
So it can be said that the power of the High Court under Section 482 CrPC cannot be applied in regard to
interlocutory orders since the bar of Section 397(2) CrPC also extends to Section 482 CrPC: When Section 397(2)
CrPC bans interference with interlocutory orders, Section 482 CrPC cannot be used to accomplish the same goal.
In other words, because Section 397(2) CrPC prohibits interfering with interlocutory orders, recourse to Section
482 CrPC is not authorised. To set aside an interlocutory order, the prohibition in Section 397 CrPC shall prevail.
Recent judicial pronouncements on Section 397 CrPC
The State Of Gujarat v. Afroz Mohammed Hasanfatta (2019)
In this case, the Gujarat High Court overturned an order by a Chief Judicial Magistrate who had taken notice of the
criminal offences on the grounds of the police’s second supplementary charge sheet and commanded the issuing of
the process to the suspect. The bench of R. Banumathi and Indira Banerjee held that the High Court should not
have gotten into the details of the case when it was still in its early stages. The Supreme Court stated that, when
hearing a revision under Section 397 CrPC, the High Court does not act as an appellate court and does not have the
power to appreciate the evidence except if the lower court’s decision is erroneous.

Q: When a Court can pass an order for paying compensation in favour of an arrested person? [4]
SECTION 358 AND 250 (accused person)

Q: Can a Court alter its own judgement? Explain [4]

Ans: section 362 (Ratanlal Dhirajlal)

Q: Maintenance under section 125 Crpc

A: Scope and objective of Proceedings
Scope and objectives of proceedings for maintenance of wives, children and parents are the following:
 The proceedings are not punishable in nature. The main objective of Chapter IX of Cr.PC is not to
punish a person who is not maintaining those whom he is bound to maintain.
 The main objective is to prevent homelessness by way of procedure to provide a speedy remedy to
those who are in pain.
 It does not make any distinction between persons belonging to different religions or castes.
 It has no relation to the personal laws of parties.
Order for maintenance of wives, children and parents
Section 125 of Cr.PC deals with “Order of maintenance of wives, children and parents”. In this Section, it is given
the name of parties who are entitled to get maintenance, essential ingredients to claim and get maintenance and
order of the first-class magistrate.
In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court delivered a judgement favouring
maintenance given to an aggrieved divorced Muslim woman.
Who can claim and get maintenance?
Section 125 of Cr.PC deals with “Order for maintenance of wives, children and parents”. According to Section
125(1), the following persons can claim and get maintenance:
 Wife from his husband,
 Legitimate or illegitimate minor child from his father,
 Legitimate or illegitimate minor child (physical or mental abnormality) from his father, and
 Father or mother from his son or daughter.
Maintenance to Wife
 Section 125 (1) (a) of Criminal Procedure Code, 1973 provides that if any person having sufficient
means neglects or refuses to maintain his wife, who is unable to maintain herself, then in such a
case a magistrate of the first class may upon proof of such neglect or refusal, order such person to
pay a monthly allowance at such monthly rate which the magistrate thinks fit.
 Wife here includes a woman who has been divorced by or has obtained divorce from
her husband and has not remarried.
  The ‘wife’ under Section 125 (1) (a) means a legally married wife and can be of any age, minor or
major.
 The wife is not allowed to receive an allowance from her husband in three cases-
o if she is living in adultery, or
o if she refuses to live with her husband and without any sufficient cause, or
o if they are living separately by mutual consent.
 While passing any order under Section 125(1) (a) it has to be kept in mind that the husband have
sufficient means and also that the wife after separation does not sufficient money to maintain
herself.
 The order for interim maintenance can also be passed by the court while the case is pending.
Maintenance to Child
 Section 125(1)(b) provides for maintenance to a child unable to maintain itself. The child here can
be legitimate or illegitimate, whether married or not.
 Section 125 (1)(c) provides for maintenance to legitimate or illegitimate child (not being a
married daughter) who has attained majority but due to physical or mental abnormality or injury is
unable maintain itself.
 The magistrate, on proof of neglect or refusal to maintain the child, passes an order to pay monthly
allowance at such fixed rate as it deems fit to be paid from time to time and to such person as the
magistrate directs.
 However, the Magistrate may order the father of a minor female child referred to in Section 125(1)
(b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the
husband of such minor female child, if married, is not possessed of sufficient means.
 Here 'minor' means a person who, under the provisions of the Indian Majority Act, 1875 is deemed
not to have attained his majority.
 A Muslim minor girl would be entitled to get maintenance from her father even after
the enforcement of Muslim Women (Protection of Rights on Divorce) Act, 1986.
 The word child is not defined in the code. It means a male or female person who has not reached
full age, i.e., 18 years as prescribed by the Indian Majority Act, 1875 and who is incompetent to
enter into any contract or to enforce any claim under the law.
Maintenance to Parents
 Section 125(1) (d) provides for maintenance to father and mother who is unable to maintain
himself or herself.
 A magistrate on proof that there has been refusal or neglect on the part of such person who has
sufficient means may order to pay monthly allowance at such fixed rate as it thinks fit which would
be paid from time to time to such person as the magistrate.
  The daughter whether married or unmarried would also be liable to maintain the parents as the
Indian society casts a duty on the children to maintain the parents and this social obligation equally
applies to a daughter.
 Section 125 of the code does not clearly state whether 'father' or 'mother' include 'adoptive
father' or 'adoptive mother' or 'stepfather' or 'stepmother'.
 Though the 'mother' shall not include 'stepmother', a childless stepmother may claim maintenance,
under Section 125 of the code, from her stepson provided she is a widow or her husband, if
living, is also incapable of supporting and maintaining her and if has natural born sons and
daughters and her husband is alive and capable of earning, she cannot claim maintenance from her
stepson.
 If there are two or more children the parents may seek the remedy against anyone or more of them, at
the place or places where they live.
 Section 125 does not contemplate the mother to pay maintenance to father or son and daughter, as
the case may be
Essential conditions for granting maintenance
There are some essential conditions which should be fulfilled for claiming and granting maintenance:
1. Sufficient means for maintenance are available.
2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain himself/herself.
4. Quantum of maintenance depends on the standard of living.
Sufficient means to maintain the person
If any person has sufficient means for maintenance, then it is his duty to maintain his wives, children and parents.
If sufficient means are not available, then it will be a perfect and valid defence for people who are legally bound
for maintenance of wife, children and parents.
Neglect or refusal to maintain
Any person neglects or refuses to maintain his wives, children and parents in malafide intention or in any type of
egoistic behaviour on the demand for maintenance by them.
The person who claims maintenance must be unable to maintain himself/herself
It is a very important condition for granting maintenance that a person who is claiming maintenance must be
unable to maintain himself/herself. For example- If a wife is earning well, then she can not claim maintenance
under this Section. In the case of Abdulmunaf v Salima, it was held that the wife who is hale and healthy and is
sufficiently educated to earn for herself but refuses to earn from own and claim maintenance from her husband will
be entitled to claim maintenance but that her refusal to earn under the circumstances would disentitle her to get
complete amount of maintenance.
Special provision for maintenance of minor married girl
If the husband of a minor daughter does not have sufficient means to maintain her, then it is the duty of her father
to give maintenance. In these circumstances, married minor daughter is entitled to get maintenance from the father.
In the case of Alok Banerjee v Atoshi Banerjee, a person who is unable to maintain themselves.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of maintenance depends on the standard of
living. For example- If any issues raised in a rich family, then demand for maintenance will be more as compared
to poor family according to their standard of living in a prior life.
In simple words, the Court should also make sure that whether maintenance granted is justified according to the
status of a family or not?
Jurisdiction of Magistrates to deal with maintenance proceedings
According to Section 125(1)(d), If any person neglects or refuses to maintain his wife, children or parents, then a
Magistrate of the First Class can order such person to make a monthly allowance for the maintenance of his wife,
children or parents, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the
direction of magistrate.
Procedure for maintenance
Section 126 of Cr.PC deals with “Procedure for maintenance”. This Section says the following:
 Proceeding under Section 125 may be taken in the following district:
1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
 Evidence to be taken in the presence of a person against whom maintenance is to be ordered.
 If a person is wilfully avoiding summons, then ex-parte evidence is taken in that case.
Alteration in allowance
Alteration in allowance means an order to increase, decrease or remove/cancel the allowance which was ordered
by the Magistrate under Section 125.
According to Section 127(1), if a magistrate ordered to give allowance for maintenance under Section 125
according to the conditions of parties at that time, but if the present conditions of parties have changed, then he can
also order to alter the allowance. For example-
1. Husband had a well-settled job and means for maintenance, on this basis the Court has ordered him to
maintain his wife and to allowance under Section 125. But in the present condition, the husband has
no job and means for maintenance. Then, the Court can alter the allowance and can reduce the
amount of allowance.
2. If a wife was not having any job or she was unable to maintain herself and she got the order of
allowance under Section 125. But after some months, she is well settled and she has the means to
maintain herself. In this case, the Court can order to remove or cancel allowance.
According to Section 127(2), Magistrate shall cancel or revoke any order given under Section 125 by him, if it
appears that it should be cancelled in consequences of any decision of the competent Civil Court. For example- If
Magistrate has ordered to give allowance to wife after divorce but Civil Court has ordered to live together. Then,
Magistrate has to revoke his order which was given under Section 125.
According to Section 127(3), where an order has been made in favour of women under Section 125, then the
magistrate can cancel the order in the following case:
1. If a woman is remarried after divorce.
2. If a woman has taken allowance under any personal laws after divorce.
3. If a woman has voluntary leave her right to maintenance.
According to Section 127(4), the Civil Court shall take into account the sum which has been paid to such person as
monthly allowance for maintenance and interim maintenance under Section 125 at the time of making any decree
for the recovery of any maintenance or dowry.
Enforcement of order of maintenance
Section 128 deals with “Enforcement of order of maintenance”. According to this Section, the following are the
conditions for enforcement of the order of maintenance:
 Copy of order under Section 125 is given to that person free of cost in whose favour it is made. In
case the order is in favour of children, then the copy of the order will be given to the guardian of
children.
 If any Magistrate has made an order under Section 125, then any Magistrate of India can enforce this
order where that person lives who have to give maintenance.
 The Magistrate has to satisfy two conditions before enforcement of order:
 1. Identity of parties, and
2. Proof of non-payment of allowances.

Q: ) Explain the provisions regarding asking security for good behaviour from a convicted person by the Court.
[6/16]
A: 106-124 crpc book https://blog.ipleaders.in/security-for-keeping-peace-and-behaviour-under-109-110-111-of-
crpc/

1. Q) ) State the circumstances when police can arrest a person without warrant. [8/16]
Persons Authorised to Arrest
Code of Criminal Procedure empowers three people to issue the process of arrest. They are as follows:
 A police officer with or without a warrant.
 A magistrate.
 A private person.
Meaning of Term Arrest
We use the term ‘arrest’ quite often in our day to day business. Normally we see a person who does or has
done something against the law to be arrested. The term arrest can be defined as, “a seizure or forcible
restraint, an exercise of power to deprive a person of his or her liberty”. In the criminal arrest of a person is an
important tool for bringing an accused before the court and prevent him from escaping.
Thus after an arrest, a person’s liberty is under full control of arrester. But every deprivation of liberty or
physical restraint should not be interpreted as the arrest. Only the deprivation of liberty by a legal authority in a
professionally competent and skilful manner amounts to arrest.
The major purpose of arrest is to bring the person before a court and secure administration of law. An arrest
also serves the purpose of notifying the society that a particular individual has committed an act which is
against the society and act as a remark to deter crime in the future.
However, even if a person against whom no accusation has been made can also be arrested for certain purposes
like removal in safe custody from one place to another. For example, removing a minor girl from a brothel.
Arrest should not be confused with custody because both have different meanings. Judicial custody of a
person is followed after the arrest of a person by a magistrate on appearance. In every arrest, there is custody
but not vice versa.
Arrest without a Warrant
Yes, a person can be arrested by police officers or any private person without warrant ordered by the court.
Particularly the police officers may arrest a person without a warrant under certain conditions. The conditions
to arrest a person without warrant mentioned under Section 41 of the Code of Criminal Procedure are as
follows.
 A person who is concerned with any cognizable offences such as murder, rape, theft etc. can be
arrested without a warrant. Cognizable offences are the offence, for which a police officer in
accordance with the first schedule of CrPC or guided by any other law for the time being in force,
can arrest without warrant.
 Cognizable offences are those offences which are very serious in nature. Example unnatural offences,
rape, kidnapping etc. If any cognizable offence has been committed, a police officer can investigate
without the magistrate’s permission.
Arrest by the police without a warrant (Section 41: CrPC)
Section 41 of the Code of Criminal Procedure (the Code from hereinafter) contains the law for arrest by
the police without a warrant. A long list has been provided. Following are some of the items from the
list:
1. When a person commits a cognizable offense in the presence of a police officer
The cognizable offense is defined in section 2(c) of the Code. When a particular offense is designated as
such in Schedule I of the Code as a cognizable offense, it is called a cognizable offense. Cognizable
offenses are usually offenses that are serious in nature.
2. When a reasonable complaint is made against a person or credible information has been received, or a
reasonable suspicion exists that such person has committed a cognizable offense punishable with
imprisonment for a term which may be less than seven years or which may extend to seven years whether
with or without fine if the following conditions are satisfied:
 the police officer has reason to believe based on such complaint, information, or suspicion that such
person has committed the said offense;
 the police officer who is arresting is satisfied that the following conditions have been fulfilled-
a. To prevent such person from committing any additional crime; or
b. For proper facilitation of the investigation of the crime; or
c. To stop such person from causing the proof of the crime to disappear or tampering with such
evidence in any manner; or
d. To restrain such person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to stop him from disclosing such facts to the Court or to the police
officer; or as unless such person is arrested, his presence in the Court whenever required cannot be
ensured;
And the police officer shall record while making such arrest, his reasons in writing, and when the police
officer does not make an arrest, he shall also write the reasons for not making the arrest.
1. Against whom credible information has been received that he has committed a cognizable offense
punishable with imprisonment for a term which may extend to more than seven years whether with or
without fine or with a death sentence, and the police officer has reason to believe based on that
information that such person has committed the said offense.
2. The person so being arrested is a proclaimed offender by the Central or the State Government.
3. When the person being so arrested is in possession of the stolen property and who may reasonably be
suspected of having committed an offense with reference to such thing.
4. When the person being so arrested obstructs a police officer while in the execution of his duty.
5. When the person being so arrested has escaped or attempted to escape from lawful custody.
 6. When the person being arrested is reasonably suspected of being a deserter from any of the Armed
Forces of the Union.
7. Who has been concerned in, or against whom a reasonable complaint has been made, or credible
information has been received, or a reasonable suspicion exists, of his having been concerned in, any
act committed at any place out of India which, if committed in India, would have been punishable as
an offense, and for which he is, under any law relating to extradition, or otherwise, liable to be
apprehended or detained in custody in India.
8. When the person being arrested is a released convict, commits a breach of any rule under subsection
(5) of section 356.
9. A requisition is made or received from any other police officer. The requisition must specify the
person to be arrested with the crime that was committeed by him. The requisition may be in writing
or be oral.
For all the above situations, the police have the power to make arrests. In all the other cases, a warrant is
required from the magistrate before making an arrest. The section is not exhaustive. There are various
other Acts like Arms Act, Explosives Act, etc, which confer such powers on police officers.
The power to arrest is also given to public servants under other statutes. The Custom Officers, Officers of
Enforcement Directorate, Narcotic Officers, etc also have the right to arrest persons under different
statutes.
As it can be observed from the above provision, the words, ‘reasonable suspicion’ and ‘credible
information’ have been used several times. These words have been inserted to keep a check on the
powers of the police. The police cannot arrest on a whim or to exact revenge against the arrestee. The
information so received must be solid. The suspicion on which the arrest is made must also be based
upon solid grounds and not mere fiction.
Section 154 of CrPC provides that, “under a cognizable offenses, if the police officer receives any information
relating to the commission of a cognizable offence, if given orally shall be reduced to writing and be read over
to informant, whether given in writing shall be reduced to writing and shall be signed by the informant and
substance shall be entered in a book to be kept by officer in form prescribed by state government”.
Section 154 provides further that, “if any person aggrieved by a refusal on the part of the officer in charge of
police station, may send the substance of such information by post to Superintendent of Police, who is satisfied
that such information discloses any commission of cognizable offences, shall either investigate himself or
direct an investigation to be made any police officer subordinate to him”.
 Who has been in possession of any housebreaking weapon without any lawful excuse?
 Who has been proclaimed as an offender either under CrPC or any other order by State government
or any law in force?
 Who obstructs any police officer while performing his duty or who have escaped or make attempts to
escape from lawful custody.
 Who has been concerned in any law or against whom a reasonable complaint has been made or
credible information has been received, of his having been involved in an act committed at any place
outside India, if committed in India would be punishable of an offence and for which he is under law
relating to extradition or otherwise, liable to be apprehended or detained in custody of India.
  Who is reasonably suspected of being a deserter from any of the Armed forces of Union?
 Who, being released as a convict, commits a breach of any rule mentioned under sub-section 5 of
section 356 i.e. the state government may be notification make rules to carry out the provisions of
this section relating to the notification of residence or change of or absence from, residence by
released convicts.
 For whose arrest any requisition has been received from another police officer, provided that the
requisition must specify the person to be arrested and the reason for which the arrest is to be made
and therefrom it appears that the person must be lawfully be arrested without a warrant.
The police also have the power to arrest a person if he denies giving his correct name and residential address or
the police have a reason to believe that the furnished information is wrong. Police are empowered
under section 42 of the Code of Criminal Procedure to arrest a person to identify the actual place of residence.
Provisions in section 42 are:
Section 43, 44 and 45 of Crpc, 1973
The police officers are empowered by virtue of section 151 of the Code of Criminal Procedure to arrest a
person to prevent the commission of cognizable offences. Provisions under section 151 are:
“(1) A police officer knowing of design of any cognizable offence may arrest the person so designing it,
without any orders from a magistrate and without a warrant, if it appears to such officer that the commission
of offence cannot be prevented otherwise.
(2) No person arrested shall be detained in custody for a period exceeding twenty-four hours from the time of
his arrest unless his further detention is required by any other provisions of Code or any law for the time being
in force”.
Important Case Law
D.K. Basu v State of West Bengal(1)
Despite various to attempts to issue proper guidelines to eradicate the possibility of committing torture by
police officials, there were frequent instances of custodial deaths and police atrocities. The apex court, in this
case, issued some guidelines which are to be followed under all cases of arrest or detentions. Important
guidelines are as follows:
 The person to be arrested must be informed of the grounds of arrest as per Section 50 of
CrPC and Article 22 of the Indian Constitution. It is a fundamental right of an individual to be
informed of the grounds of arrest. It is the duty of the officer in charge to inform the person whether
the offence is Bailable or Non- Bailable. Bailable offences are the offence in which it is the right of a
person to be granted bail whereas in the non-bailable offence it is at the discretion of the court.
 Under section 41 police have the power to arrest a person without a warrant where an immediate
arrest is needed and there is no time to approach the magistrate and obtain a warrant. For example
where a serious crime has been perpetrated by a dangerous person and there are chances of him being
escaped unless immediately arrested. Later due to misuse of powers conferred by police officers
accorded to them, this section got amended and put restrictions upon the power of officers such as
police officer must act reasonably while deciding whether the arrest is necessary or not. The notice
should be made if credible information is received (section 41 a).
  The arrested person has a right to meet an advocate of his choice during interrogation under section
41 D and section 303 of CrPC.
 The person so arrested has a right to inform his family member, relative or friend of his arrest under
section 50 of CrPC.
 The arrested person has a right not to be detained for more than 24 hours, without being presented
before a magistrate to prevent unlawful and illegal arrests. This right is also the fundamental right of
an individual under Article 22 of the Constitution.
 The arrested person has a right to remain silent during police enquiry provided by Article 20(3) of the
Indian Constitution so that police cannot extract any self- incriminating information against him.
Q) ) How arrest in made? What are the statutory duties of a police officer to perform after arrest?
A: add section 42, 43, 44, 45. section 46(1) provides that in an action of arrest the police officer or the person
making the arrest shall actually touch or confine the body of the person arrested. In the case of women, her
submission to the custody of an oral intimation of arrest shall be presumed and unless the police officer is
female, she shall not be touched by the police officer at the time of time.
According to Section 46(2), the police are authorised to use reasonable amount or means of force to effect the
arrest in cases where the person being arrested forcibly resists or attempts to evade arrest.
Section 46(3) does not give the right to cause the death of the person who is not accused of an offence. The
punishment in such cases is death or imprisonment for life.
Section 46(4) says that except in certain conditions a woman cannot be arrested after sunset and before sunrise
and where such exceptional conditions exist, the woman police officer by making a written report can obtain
the prior permission of the Judicial Magistrate with the local jurisdiction to make an arrest.
Additional powers for effecting arrest search of place
Section 47 of CrPC provides for the search of place entered by place sought to be entered. It further provides
that the person having the warrant has the duty to enter the premises of the person being arrested. If the person
is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open
the door. It is done to take the person by surprise.
But if there is any female occupying the premises then the person arrested has to give notice to that female to
withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.
Any police officer or person making the arrest is authorised to break open the door in order to liberate himself
if he is detained in that process.
Pursuit of offenders
Pursuit is the action of pursuing someone or something. In this case, it basically talks about the
offenders. Section 48 authorizes the police officers to pursue offenders in any place in India whom he is
authorised to do so without a warrant.
Deputing subordinate to arrest
When any police officer who is in charge of a police station or any police officer making an investigation
under Chapter XII requires any subordinate to him arrest without warrant any person who is lawfully arrested
has to give in writing the reason specifying for which he is arrested. The subordinate before making such arrest
is required to notify the person being arrested the substance of the order and if requires show him the order.
This is given in Section 55 of CrPC.
Power, on escape, to pursue and retake
Section 60 of CrPC– If there is a person who is in the lawful custody of the police tries to escape or is rescued,
may be immediately pursued and arrested in any place in India.
Post arrest procedures / Duty of police officer post arrest
Firstly, according to Section 50(1) of CrPC, it is the duty of the police officer or any person arrested without
warrant to inform the person arrested about the grounds of the offence for the arrest.
Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is
required to inform the person arrested about the substance of arrest and if required to show the order. If it is not
done the arrest will become unlawful.
The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It
prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says
that no person who is arrested shall be detained in custody without being informed about the reason for arrest
and consult a legal practitioner of his choice.
Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the
magistrate without unnecessary delay(usually within 24 hours). It is also mentioned that the person arrested
cannot be taken to any place other than the police station before presenting before the magistrate. This is
provided in Article 22 with Section 56 and Section 76 of the CrPC.
Apart from this, the police officer always has to bear the clear, visible and proper identification of his name
which may facilitate his easy identification. As soon as the arrest is made a memo should be prepared which is
to be attested by at least one witness and countersigned by the person arrested.
The arrested person also has the right to consult an advocate of his choice during interrogation under section
41D and Section 303 of CrPC. Apart from these, there are many other rights and procedures mentioned in the
further part of the article.
Search of an arrested person
Section 51(1) provides that the person arrested can be searched for articles on the body and the receipt of all
those articles is to be provided to that person.
Section 51(1) says that in case of a search of female, it will happen only by a female maintaining some amount
of decency.
Seizure of offensive weapons
The officer or the person arresting has the power to seize any offensive weapon which he possesses and deposit
all weapons to the court or the officer before whom the person making the arrest is required by the Code to
produce the person arrested(Section 52).
Medical examination of accused
Section 52(1) provides that when a person who is arrested for a charge of the offence of such a nature that there
are reasonable grounds for believing that such examination will produce evidence related to the commission of
the offence. It is lawful for a registered medical practitioner under the request of the police officer, not below
the rank of sub-inspector to carry about an examination with the use of reasonable force. But this force cannot
be too much.
Section 52(2) says that when the examination is done of a female, it should only be done by a female or under
the supervision of a female registered medical practitioner.
Section 53A discusses the method of medical examination of a person accused of rape.
Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence
against himself. This provision comes into play in relation to this section.
Identification of an arrested person
According to Section 54A, when a person is arrested on charge of committing an offence and his identification
by any other person is deemed necessary then the court for the purpose of investigation, having jurisdiction,
can direct the person so arrested to subject himself to identification in front of any person or persons as the
court may think fit. When the person identifying the arrested person is mentally or physically disabled, in that
case, the process of identification will happen before a Judicial Magistrate who will ensure that he identifies
with the help of a medium he considered it comfortable. And this identification needs to be recorded in a form
of video.
Procedure when delegated person arrest without warrant
When a delegated person arrests the accused without warrant, any person thus arrested lawfully be delivered to
the officer in writing the reason specifying the arrest. The officer needs to notify the person arrested the,
substance of the arrest and if required to show the order of substance to the person arrested.
Report of arrests to be sent to DM and the procedure
Section 58 states that officers who are incharge of police stations shall report to the District Magistrate or if he
directs to the sub-divisional magistrate, the cases of all persons arrested without a warrant within their local
jurisdiction and whether they have been admitted to bail or otherwise.
Statutory duty of a police officer after arrest
Procedure to be followed by a police officer after arrest -
1) No unnecessary restraint (Section 49) -
According to Section 49 of the code of criminal procedure, the Person arrested shall not be subjected to
more restraint than is necessary to prevent his escape.
2) Person arrested to be informed of grounds of arrest and of right to bail (Section 50) –
Section 50 of the code of criminal procedure provides -

(a) Every police officer or other person arresting any person without warrant shall forthwith communicate to
him full particulars of the offense for which he is arrested or other grounds for such arrest.

(b) Where a police officer arrests without warrant any person other than a person accused of a non-bailable
offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for
sureties on his behalf.
3) Obligation of persons making arrest to inform about the arrest, etc. to a nominated person (Section
50A) -

Section 50A of the code of criminal procedure provides :

(1) Every police officer or other person making any arrest under this Code shall forthwith give the
information regarding such arrest and place where the arrested person is being held to any of his friends,
relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of
giving such information.

(2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is
brought to the police station.
(3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be
kept in the police station in such form as may be prescribed in this behalf by the State Government.

(4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself
that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested
person.

4) Search of arrested person (Section 51) -

Section 51 of the code of criminal procedure 1973 provides that whenever a person is arrested by a police
officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the
taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or
by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the
officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes
over the person arrested, may search such person, and place in safe custody all articles, other, than necessary
wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing
the articles taken in possession by the police officer shall be given to such person. Whenever it is necessary to
cause a female to be searched, the search shall be made by another female with strict regard to decency.
5) Seizure of offensive weapons (Section 52)
According to Section 52 of the code of criminal procedure 1973, the officer or other person making any
arrest under this Code may take from the person arrested any offensive weapons which he has about his person,
and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person
making the arrest is required by this Code to produce the person arrested.
6) Examination of accused by medical practitioner at the request of police officer (Section 53) -
Section 53 of the code of criminal procedure 1973, provides that –
(1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been
committed under such circumstances that there are reasonable grounds for believing that an examination of his
person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical
practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person
acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is
reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is
reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made
only by, or under the supervision of, a female registered medical practitioner.

Explanation -

(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual
offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests which the registered medical practitioner thinks
necessary in a particular case;

(b) "registered medical practitioner" means a medical practitioner who possesses any medical
qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and
whose name has been entered in a State Medical Register.

7) Examination of person accused of rape by medical practitioner (Section 53A) -

Section 53 of the code of criminal procedure provides -

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape
and there are reasonable grounds for believing that an examination of his person will afford evidence as to the
commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run
by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen
kilometres from the place where the offence has been committed, by any other registered medical practitioner,
acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good
faith in his aid and under his direction, to make such an examination of the arrested person and to use such
force as is reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay, examine such person
and prepare a report of his examination giving the following particulars, namely:

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and
 (v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who
shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of
sub-section (5) of that section.

8) Identification of person arrested (Section 54A)-

According to Section 54 of the Code of Criminal Procedure 1973, where a person is arrested on a charge of
committing an offence and his identification by any other person or persons is considered necessary for the
purpose of investigation of such offence, the Court, having jurisdiction may, on the request of the officer in
charge of a police station, direct the person so arrested to subject himself to identification by any person or
persons in such manner as the Court may deem fit:

Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of
identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to
ensure that such person identifies the person arrested using methods that person is comfortable with:
Provided further that if the person identifying the person arrested is mentally or physically disabled, the
identification process shall be video graphed.
9) Discharge of person apprehended (Section 59)-
According to Section 59 of The Criminal Procedure Code 1973, no person who has been arrested by a
police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.
Q: Discuss the rights of an arrested person under the Criminal procedure Code. 1973.
A: Rights of an Arrested Person
1)Right to know the grounds of Arrest
 Section 50 of CrPC says that every police officer or any other person who is authorised to arrest a
person without a warrant should inform the arrested person about the offence for which he is arrested
and other grounds for such an arrest. It is the duty of the police officer and he cannot refuse it.
 Section 50A of CrPC obligates a person making an arrest to inform of the arrest to any of his friends
or relative or any other person in his interest. The police officer should inform the arrested person that
he has a right to information about his arrest to the nominated person as soon as he is put under
custody.
 Section 55 of CrPC states that whenever a police officer has authorised his subordinate to arrest any
person without a warrant, the subordinate officer needs to notify the person arrested of the substance
of written order that is given, specifying the offence and other grounds of arrest.
  Section 75 of CrPC says that the police officer(or any other officer) executing the warrant should
notify the substance to the person arrested and show him a warrant if it required.
 Article 22(1)of the Constitution of India also states that no police officer should arrest any person
without informing the ground of arrest.
click above
2) Right to be produced before the Magistrate without unnecessary delay
 Section 55 of CrPC states that a police officer making an arrest without a warrant should produce the
arrested person without unnecessary delay before the Magistrate having jurisdiction or a police
officer in charge of the police station, subject to the conditions of the arrest.
 Section 76 of CrPC states that the police officer executing a warrant of arrest should produce the
arrested person before the court before which he is required by law to produce the person. It states
that the person should be produced within 24 hours of arrest. While calculating the time period of 24
hours, it must exclude the time which is required for the journey from the place of detaining to the
Magistrate Court.
 Article 22(2) of the Constitution states that the police officer making an arrest should be produced
before the Magistrate within 24 hours of arrest. If the police officer fails to produce before Magistrate
within 24 hours, he will be liable for wrongful detention.

3) Rights to be released on Bail

Subsection(2) of Section 50 of CrPC states that when a police officer arrests any person without a warrant for
an offence other than non-cognizable offence; he shall inform him that he has a right to release on bail and to
make an arrangement for the sureties on his behalf.
4) Rights to a fair trial
Any provision related to the right to a fair trial is not given in CrPC, but such rights can be derived from the
Constitution and the various judgements.
 Article 14 of the Constitution of states that ”all persons are equal before the law”. It means that all
the parties to the dispute should be given equal treatment. The principle of natural justice should be
considered in respect of both the parties. Right to a speedy trial is recognized in the case Huissainara
khatoon vs Home Secretary, State of Bihar [4], the court held- “the trial is to be disposed of as
expeditiously as possible”.
5) Right to consult a lawyer
 Section 41D of CrPC states the right of the prisoners to consult his lawyer during interrogation.
 Article 22(1) of the constitution states that the arrested person has a right to appoint a lawyer and be
defended by the pleader of his choice.
 Section 303 of CrPC states that when a person is alleged to have committed an offence before the
criminal court or against whom proceedings have been initiated, has a right to be defended by a legal
practitioner of his choice.
6) Right to free Legal Aid
 Section 304 of CrPC states that when a trial is conducted before the Court of Session, and the accused
is not represented by the legal practitioner, or when it appears that the accused has no sufficient
means to appoint a pleader then, the court may appoint a pleader for his defence at the expense of the
State.
 Article 39A obligates a state to provide free legal aid for the purpose of securing justice. This right
has also been explicitly given in the case of Khatri (II) VS State of Bihar [5]. The court held that “to
provide free legal aid to the indigent accused person”. It is also given at the time when the accused is
produced before the Magistrate for the first time along with time commences. The right of the
accused person cannot be denied even when the accused fails to apply for it. If the state fails to
provide legal aid to the indigent accused person, then it will vitiate the whole trial as void. In the case
of Sukh Das vs Union Territory of Arunachal Pradesh [6], the court held:- “The right of indigent
accused cannot be denied even when the accused fails to apply for it”. If the state fails to provide
legal aid to the indigent accused person it will vitiate the whole trial as void.
7) Right to keep silence
Right to keep silence is not recognized in any law but it can derive its authority from CrPC and the Indian
Evidence Act. This right is mainly related to the statement and confession made in the court. Whenever a
confession or a statement is made in the court, it is the duty of the Magistrate to find, that such a statement or
the confession was made voluntarily or not. No arrested person can be compelled to speak anything in the
court.
Article 20 (2) states that no person can be compelled to be a witness against himself. This is the principle of
self- incrimination. This principle was reiterated by the case of Nandini Satpathy vs P.L Dani [7]. It stated,
“No one can force any person to give any statement or to answer questions and the accused person has a right
to keep silence during the process of interrogation”.
8) Right to be Examined by the medical practitioner
Section 54 of CrPC states that when the arrested person alleges that examination of his body will lead to a fact
which will disapprove the fact of commission of an offence by him, or which will lead to commission of an
offence by any other person against his body, the court may order for medical examination of such accused
person at the request of him (accused) unless the court is satisfied that such a request is made for the purpose of
defeating the justice.
Other Rights
 Section 55A of CrPC states that it shall be the duty of the person, under whose custody the arrested
person is to take reasonable care of the health and safety of the accused.
 The arrested person is to be protected from cruel and inhuman treatment.
 Section 358 of CrPC gives rights to the compensation to the arrested person who was groundlessly
arrested.
 Section 41A of CrPC states that the police officer may give the notice to a person suspected of
committing a cognizable offence to appear before him at such date and place.
  Section 46 of CrPC prescribes the mode of the arrest. i.e submission to custody, touching the body
physically, or to a body. The police officer should not cause death to the person while making an
arrest unless the arrestee is charged with an offence punishable with death or life imprisonment.
 Section 49 of CrPC states that the police officer should not make more restrained than in necessary
for the escape. Restrain or detention without an arrest is illegal.
In D.K Basu vs State of West Bengal and others [8], this case is a landmark judgement because it focuses “on
the rights of the arrested person and it also obligates the police officer to do certain activities”. The court also
states that if the police officer fails to perform his duty then he will be liable for contempt of court as well as
for the departmental actions. Such matter can be instituted in any High Court having the jurisdiction over the
matter.
In spite of various efforts in protecting the accused from the torture and inhuman treatment, there are still
instances of custodial deaths and the police atrocities. So, the Supreme court issued 9 guidelines for the
protection of accused person and the amendment of various sections of CrPC:-
1. Section 41B– The police officer who is making an investigation must bear visible, clear and accurate
badge in which the name of the police officer along with his designation is clearly mentioned.
2. The police officer making an arrest must prepare a cash memo containing a date and time of arrest
which should be attested by at least one members who can be his family member or any respectable
person of a locality. The cash memo should be countersigned by the arrested person.
3. Section 41D:- The arrested person is entitled to have a right to have one friend, or relative or any
other person who is having interest in him informed about his arrest.
4. The arrestee must be informed about his right to have someone informed about his right immediately
when he is put under the custody or is being detained.
5. Entry is to be made in the diary which shall disclose the information relating to the arrested person
and it shall also include the name of the next friend to whom information regarding the arrest is made.
It also includes the name and the particulars of the police officers under whose custody the arrestee is.
An examination is to be conducted at the request of the arrestee and the major and minor injuries if
any found on the body must be recorded. The inspection memo must be signed by the police officials
and the arrested person.
6. The arrestee has the right to meet his lawyer during and throughout the interrogation.
7. Copies of all documentation are to be sent to Magistrate for his record. It also includes a memo of the
arrest
8. Section 41C:- The court ordered for the establishment of state and district headquarters, the police
control room where the police officer making an arrest shall inform within 12 hours of arrest and it
needs to be displayed on the conspicuous board.
Q: When can the police start investigation without permission from the Court? [8] (14)
Ans: Role of police in the investigation of a crime
The police play the most important role in the investigation of a criminal case. Police have to investigate the
cognizable case and find the truth as per the provisions of Indian laws. As mentioned earlier police have the
power to investigate only cognizable cases, in non-cognizable cases prior permission has to be taken from the
Magistrate. Police perform myriad duties while performing investigations in a criminal case, like, making arrests,
dispersing an unlawful assembly, taking preventive action and many more. The investigation by police in
cognizable offences is a normal preliminary to the trial.
The police have been empowered to investigate cognizable cases under Section 156 of CrPC. The Section states
that any officer who is in charge of a police station can start investigating cases consisting of cognizable offences
without the permission of the Magistrate. The police officer shall not be brought into question at any stage of
ongoing trial on the ground that he was not empowered to investigate under this Section.
The investigation once commenced will only end after the police file a report as stated under Section 173 of
CrPC. Under Section 156 the police have the power to investigate a cognizable offence even without the order of
a Magistrate. Also, in a situation where the police do not start the investigation by themselves then the Magistrate
can order the initiation of investigation as stated under Section 190 of CrPC. The police under this Section can
also initiate the investigation process in absence of FIR, provided that the offence must be cognizable.
It is to be noted that if the police are investigating the Magistrate cannot interrupt or control the investigation
process. The right provided to the police is statutory and cannot be controlled by the Court, but is at the discretion
of the Court whether it takes action or not after filling out the charge sheet. However, the Court’s function does
not begins until the charge sheet is filed. The police also have the power to investigate cognizable offences
beyond their territorial jurisdiction as stated under Section 156(2) of CrPC.
In the case of Prabal Dogra v. Superintendent of Police, Gwalior and State of M.P (2018), it was held that the
High Court in the exercise of powers u/s 482 of CrPC cannot order or direct the police to search for a particular
point of view or in a particular direction. The Court also cannot supervise the investigation by issuing directions
as it pleases to do so. It further stated that investigation exclusively comes under the domain of police and the
sanctity of same should be maintained. However, in the case of T.T. Antony v. State of Kerala (2001), the Court
stated that the police should not overreach and transgress the power given to them. If done so, the High Court
may in the interest of justice under Section 482 of CrPC or under Article 226/ 227 of the Indian Constitution
prohibit the police from conducting further investigation to prevent the abuse of power.
The police by conducting such investigation ensure justice, as it is a well-settled principle that even the accused
has a right to a fair investigation. Commencement of investigation is a crucial step to test the truthfulness and
accuracy of the commission of an offence. The process of law must not be hindered in any way as it will be
tantamount to the miscarriage of justice. In general, police are also empowered to start the investigation before the
lodging of FIR, however, in cases of unnatural death registration of FIR is a mandate.
The provisions of the code extend to the limit that they are not inconsistent with the provisions of the Narcotic
Drugs and Psychotropic Substances Act, 1985. The reason behind this is that it is a special Act and hence it has a
separate procedure to deal with the offences mentioned in this Act.

Q: Discuss the classification (constitution) and powers of the various criminal courts under the Criminal
procedure Code, 1973.

A: Chapter 2nd Section 6 to 35 of Code of Criminal Procedure deals with the Constitution of Criminal Courts and
their powers although section 6 of Code of Criminal Procedure deals with the classification of criminal Courts.
According to section 6 there are 4 kinds of Criminal Courts i.e. Court of Session, Court of judicial Magistrate,
Court of Metropolitan Magistrate and Executive Magistrate.

Hierarchy Of Criminal Courts

 Supreme Court
 High Court
 Session Court
 Additional Session Judge
  Assistant Session Judge
Metropolitan Area:
 Chief Metropolitan Magistrate
 Metropolitan Magistrate
>Other than Metropolitan Area
 Chief Judicial Magistrate
 Judicial Magistrate First Class
 Judicial Magistrate Second Class

Establishment And Powers Of Supreme Court And High Court

The establishment of Supreme Court is given under article 124 of the Constitution of India and establishment of
High Court is given under article 214 of the Constitution of India. As being a Constitutional Courts there is no
restrictions on the power of Supreme Court and High Court and even the powers of High Court mention in section
28(1) of Code of Criminal Procedure. According to section 28(1) High Court may pass any sentence authorized
by law.

Establishment And Powers Of Court Of Session

The establishment of Court of Session given under section 9 and 10 of Code of Criminal Procedure. According to
section 9 Court of Session established by State government.

Appointment of District Judges

According to article 233 of the Constitution of India all district judges shall be appointed by Governor in
consultation with High Court

Powers of Court of Session:

According to section 28(2) of Code of Criminal Procedure deals with Session Judge or Additional Session Judge
may pass any sentence authorized by law and if Session Judge or Additional Session Judge pass sentence of death
then such sentence shall be subject to confirmation of High Court.

According to section 28(3) Assistant Session Judge may pass any sentence authorized by law except the sentence
of death, life imprisonment or imprisonment more than 10 years.

Establishment, Appointment And Powers Of Court Of Judicial Magistrate

Section 11 of Code of Criminal Procedure deals with the establishment of Court of Judicial Magistrate. According
to section 11 Court of Judicial Magistrate established by state government.

Appointment of Court of Judicial Magistrate:

The appointment of Judicial Magistrate are given under article 234 of the Constitution of India. According to
article 234 all judges other than district judges shall be appointed by the Governor in consultation with State
Public Service Commission and the High Court.
Now according to section 12 of Code of Criminal Procedure any Judicial Magistrate first Class shall be appointed
as Chief Judicial Magistrate by High Court.

Powers of Court of Judicial Magistrate

The power of Chief Judicial Magistrate given under section 29(1). According to section 29(1) Chief Judicial
Magistrate may pass any sentence authorized by law except the sentence of death, life imprisonment and
imprisonment more than 7 years.

Section 29(2) of Code of Criminal procedure deals with Judicial Magistrate 1st class may pass any sentence
authorized by law except the sentence of death, life imprisonment and imprisonment more than 3 years and he
may also impose fine upto 10,000 Rs and in Maharashtra and Rajasthan they may impose fine upto Rs.50,000/-

Section 29(3) talks about Judicial Magistrate 2nd Class may pass any sentence authorized by law except the
sentence of death, life imprisonment and imprisonment more than 1 year and he may also impose fine upto 5,000
Rs and in Maharashtra he may impose fine upto Rs.10,000/-

Establishment, And Powers Of Court Of Metropolitan Magistrate

The establishment of Court of Metropolitan Magistrate is given under section 16 of code of Criminal Procedure
and according to section 17 any Metropolitan Magistrate shall be appointed as a Chief Metropolitan Magistrate by
High Court.

Powers of Court of Metropolitan Magistrate

According to section 29(4) the Chief Metropolitan Magistrate and Metropolitan Magistrate shall possess the same
power of Chief Judicial Magistrate and Judicial Magistrate First Class i.e Chief Metropolitan Magistrate may pass
sentence of imprisonment upto 7 years and Metropolitan Magistrate may pass sentence of imprisonment upto 3
years and fine upto 10,000 Rs and in Maharashtra and Rajasthan Rs.50,000/-

Power And Function Of Executive Magistrate

Section 20 of Code of Criminal Procedure deals with Executive Magistrate. In every district and in every
Metropolitan area State Government may appoint the executive Magistrate and shall appoint one of them to be
District Magistrate.
The function of Executive Magistrate is given under section 129,130,131 and 144 in Code of Criminal Procedure,
1973.

Powers of court – (section 26-35)

Q) Discuss the provisions relating to power of a Magistrate to issue order in urgent cases of
nuisance or apprehended danger. [16]
Ans: A magistrate has been vested with wide powers under Section 144 of the Code of Criminal Procedure, 1973.
It grants certain powers to a magistrate which entails passing an order in cases of nuisance or apprehended danger
in society. In order to maintain public peace and public tranquillity, preventive measures can be taken. Any order
passed by the magistrate should be in writing and consist of facts of the case.
Section 133 CrPC and its meaning
According to the provision, a District Magistrate, a Sub-Divisional Magistrate or even any other Executive
Magistrate as specified by the State Government is empowered to do the following provided sufficient evidence
has been presented:
 That any nuisance causing any obstruction should be removed from any public place, channel or river
that lawfully belongs to the public.
 That conducting a trade, occupation, or possession of certain merchandise has a direct negative
impact on the physical comfort of the public and, in consequence, the carrying out of such a trade,
occupation or possession of such merchandise must be prohibited.
 That the construction of any property or the disposal of substances in connection with such
construction is likely to result in an explosion and therefore must be stopped or prevented.
 That any building, tree, or structure is likely to fall and cause damage, and therefore the repair,
removal, or support of such a building, tree or structure becomes necessary.
 That any dangerous animal must be confined or disposed of as the case may be.
 That any well, excavation or tank that causes any obstruction to the public shall be accordingly
removed to prevent any danger to the public.
Therefore, as per Section 133 CrPC, a magistrate can take action if any information regarding any nuisance is
received through either a police report or any other credible source. It is also interesting to note that an order
made under this provision cannot be challenged before a Civil Court and is therefore considered to be a rigorous
remedy against public nuisance. Moreover, the provision also clarifies that a “public place” includes property that
belongs to the State, camping grounds, or even grounds that are left unused for sanitary or recreational activities.
Remedies under Section 133 CrPC
A Magistrate on receiving such information can direct a conditional order with the following remedies-
 To immediately remove the interference or disturbance within a reasonable time period.
 To either stop the construction of such a building or completely dispose of such a building.
 To remove or repair the building or the trees, tents or structures.
 To fence the pits, tanks or excavations.
 To eliminate or dismantle the animal causing any danger to the public.
 To stop or control the functioning of any trade/activity by either ordering the removal of goods or
services or managing the storage of such goods in a prescribed manner.
Punishment under Section 133 CrPC
Section 268 to 294A of the Indian Penal Code, 1860 provides for the punishment for offences pertaining to public
nuisance. The offence of public nuisance is punishable except for the offences laid down in Section 290 of the
Indian Penal Code, 1860. Under this provision, the fine can be extended up to Rs. 200. The offence under this
Section is bailable, non-cognizable and non-compoundable.
Section 144 CrPC empowers the magistrate to prohibit a gathering of people which extends to more than four
people. Such wide powers are given to the magistrates to deal with situations of emergency. This section, in a
way, empowers the magistrate to curb the liberty of people where it has become necessary because not doing so
will lead to disruption and nuisance. However, this curbing of liberty is subject to some grounds which we will be
discussing further in the article.

KEY FEATURES OF SECTION 144

· Movement of public and opening of educational institutions is not allowed under this section.
· There will be an absolute prohibition to the holding of any public meetings and gatherings.
· Law enforcement mechanisms can disband such assemblies and gatherings which have been formed after the
invocation of section 144.
· Under this section, the authorities can also block internet access.
· The main purpose of this section is to take necessary steps to keep the peace of a particular area in order.

GROUNDS TO IMPOSE RESTRICTIONS UNDER THIS SECTION

· The restrictions under this section cannot be arbitrary. The restrictions have to be reasonable. There is no doubt
that the magistrate is empowered to impose restrictions curbing the liberty and freedom of people under article 19
of the constitution. But at the same time, such rights are fundamental and hence cannot be curbed unless the
restrictions imposed are reasonable.
· The order under this section can be passed only when the danger is imminent and the apprehension of that
danger is based on genuine grounds. The requirement of the danger being urgent is necessary for an order to be
passed under this section.
· The objective behind this section is to give priority to public and societal rights over the private rights of
individuals. The orders made under this section are made for the benefit of society at large.
· When the authorities are convinced that there is an annoyance that can take place in the immediate future. The
annoyance in these cases can be both physical and mental. In the case of physical annoyance, the person being
annoyed has to have some proximity to the annoyance caused whereas no such requirement is necessary for
mental annoyance.
· When there is an imminent danger to human life, then also this section can be invoked. The magistrate has to
be satisfied that passing the order will prevent the under person from getting hurt or any property getting
damaged.

ANALYSIS OF SECTION 144

· The orders made under this section are ex parte in nature. However, the orders are temporary in their duration
because they can subsist only till the emergency exists for which the orders were passed. The duration of the
orders made under this section is generally two months but in exceptional cases, it can be extended to six months.
· A plain reading of this section provides that the section was drafted to curb any urgent situation of disruption.
Hence, the orders passed under this section come with immediate effect and these orders don’t need to be
subjected to procedural and administrative detailing.
· This section is anticipatory. This means that the orders can be passed under this section even before the
disruption has happened. Anticipatory orders and restrictions are passed only in situations where an emergency
exists.
· This section cannot be used in cases of defamatory pieces of articles which will cause a breach of the peace
because the right to freedom and expression is guaranteed under article 19.

THE CONSTITUTIONAL VALIDITY OF SECTION 144 DISCUSSED THROUGH A CASE LAW

In the case of Madhu Likaye vs. S.D.M. Monghyr, the apex court held that just because this section has the
capability of being exploited does not mean that the section in itself is unconstitutional and should be struck
down. The criminal procedure code is in line with the fundamental rights guaranteed under the constitution and
that is the reason behind such sections being held valid.

It cannot be said that just because this section gives wide powers to the magistrate, it puts an unreasonable burden
and restrictions on the fundamental rights of the citizens of the country. In the case at hand, the magistrate issued
an order under this section to prevent a fight between two labour unions. The validity of this order was challenged
based on it being arbitrary and wide. The court while upholding the validity of this order stated that this section is
not unconstitutional in itself. The capacity of it being abused doesn’t make it unconstitutional. The powers of the
magistrate even though wide are still restricted under this section. The magistrate cannot invoke this section
unless there is an urgent threat to the peace and tranquillity of the public and the restrictions put are reasonable.

RELEVANT CASE LAWS

1. Dr. Ram Manohar Lohia Vs State of Bihar & Ors.- In this court, the court held that a scuffle between two
people who are intoxicated is a disruption to order but does not include the public at large. Hence, an order under
this section to prevent a fight between two intoxicated people is not valid.
Re Ramlila Incident Vs. Home Secretary, Union of India & Ors. – The necessary prerequisites before invoking
section 144 are that sufficient grounds should exist, the order should be served in writing and should state the
reasons for the passing of the order, the imminent danger persists and immediate intervention is required.
Duration:
 No order under this section can remain in force for a period of more than 2 months.
 Under the State government’s discretion, it can choose to extend the validity for two more months
with the maximum validity extendable to six months.
 Once the situation becomes normal, Section 144 levied can be withdrawn.
Purpose:
 The ultimate purpose of Section 144 is to maintain peace and order in the areas where trouble could
erupt to disrupt the regular life.
 It prevents, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed,
or danger to human life, health or safety or a disturbance of public tranquility, or a riot, or an affray.

Q: What procedure is to be followed under such circumstances?

A: Conditional order—Section 133 provides for a rough and ready procedure to be used in urgent cases for
removal of public nuisances. According to this section whenever a District Magistrate or a Sub-Divisional
Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on
receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit,
considers—
(a) that any unlawful obstruction or nuisance should be removed from any public place or from anyway, river or
channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the
health or physical comfort of the community, and that in consequence such trade or occupation should be
prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration
or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause
injury to persons living or carrying on business in the neighborhood or passing by, and that in consequence the
removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary;
or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as
to prevent danger arising to the public; or
f) that any dangerous animal should be destroyed, confined or otherwise disposed of,
such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or
carrying on such trade or occupation or keeping any such goods or merchandise, or owning, possessing or
controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such
animal or tree, within a time to be fixed in the order—

(i)to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or
occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be
directed; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;
or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a
time and place to be fixed by the order, and show cause why the order should not be made absolute.
No order duly made by a Magistrate under this section shall be called in question in any civil court. This section
is designed to afford a rough and ready procedure for removing public nuisances. It is interesting to note the
observations of the Punjab & Haryana High Court on the nature and consequences of orders made under Section
133.
The Court observed—
“The proceedings are just to maintain peace and tranquility and the orders rendered under these sections are
merely temporary orders. The orders of the courts are coterminous with the judgment or decree of the civil court.
No sooner the civil court declares the right of the parties the temporary orders rendered by the courts under
Sections 133, 145 and 147 of the Code come to an end.”
In fact, the section has been formulated to deal with emergent situations. In order to invoke Section 133(l)(a), the
nuisance has got to be a public nuisance and then only it can be stated to affect the members of the public and
hence can be removed from the public place. The phrase “public nuisance” has been defined in Section 268 of the
Indian Penal Code and this definition can very well be imported for the purposes of Section 133. According to
that definition, in order to constitute a public nuisance, the injury, danger or annoyance must be caused to the
public, or to the people in the vicinity or to persons who may have occasion to exercise any public right.
The object and public purpose behind Section 133 are to prevent public nuisance that if the magistrate fails to take
immediate recourse to Section 133, irreparable damage would be done to the public. However, under Section 133
no action seems possible if the nuisance has been in existence for a long period. In that case, the only remedy
open to the aggrieved party is to move the civil court.
According to Section 12 of the Indian Penal Code, the word “public” includes any class of the public or
community; but that class must be numerically sufficient to be designated “the public”. Therefore, if a particular
individual or his family is only affected by the nuisance, such nuisance cannot be considered to be a public
nuisance and hence its removal from any public place cannot be ordered under Section 133. It has been held that a
place in order to be public must be open to the public, i. e., a place to which the public have access by right,
permission, usage or otherwise.
Clause (b) of Section 133(1) is applicable only in such cases where the conduct of any trade or occupation, etc., is
injurious to the health or physical comfort of the community. Where the trade of auctioning vegetables was
carried on in a private house, and the noise caused by auctioning disturbed the comfort of the persons living in the
locality, an order restraining such trade under Section 133 was held to be not justified by the Supreme Court.
According to the Supreme Court, the conduct of trade in vegetables was not that injurious to the health or
physical comfort of the community so as to attract preventive action under Section 133.
The Madhya Pradesh High Court has held that the working of a glucose saline manufacturing unit in a residential
area was a nuisance causing disturbance to the people. The court reinstated the SDM’s order asking the firm to
remove the unit from there.
The word “regulated” in clause (b) of Section 133(1) indicates that the court, instead of prohibiting the trade, etc.,
completely, can regulate the same in such a way as not to become a nuisance.
It has been ruled by the M. P. High Court that Section 133 cannot be invoked to remove the public nuisance of
water pollution caused by industrial waste discharged by an industry inasmuch as there are other laws such as
Water (Prevention and Control of Pollution) Act, 1974 to deal with it.
The object and purpose behind S. 133 of the Code are essential to prevent public nuisance and involves a sense of
urgency in the sense that if the magistrate fails to take recourse immediately irreparable damage would be done to
the public. It applies when the nuisance is in existence. Sometimes, there is confusion between S. 133 and S. 144.
While the latter is a more general provision, the former is more specific. While the order under the former is
conditional the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than
criminal.
The Supreme Court dwelt with the question of application of pollution laws vis-a-vis criminal procedural law.
The Court explained that the areas of operation of the Code and the pollution laws are different with wholly
different aims and objects and though they alleviate nuisance that is not of identical nature. There is no
impediment for their existence side by side.
Section 133(l) (c) does not specify the minimum number of persons that should be living or carrying on business
in the neighborhood, etc. Therefore the requirement of the section is satisfied even if the danger is confined to the
members of a single household.
Service or notification of order —The order shall be served on the person against whom it is made in the
manner provided for service of a summons. If it cannot be so served, it shall be notified by proclamation duly
published, and a copy thereof shall be stuck at such place as may be fittest for conveying the information to such
person. [S. 134]
Person to obey the order or to show cause —The person against whom such an order is made shall—
(a) perform, within the time and in the manner specified in the order, the act directed thereby, or
(b) appear and show cause against the order. [S. 135]
The consequence of his failure to do so. —If such a person does not perform such act or appear to show cause,
he shall be punishable under Section 188, IPC and the order shall be made absolute. [S. 136]
PROCEDURE WHERE EXISTENCE OF PUBLIC RIGHT IS DENIED
Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the
public in the use of any way, river, channel or place, the Magistrate shall, on appearance of the person against
whom the order was made, question him as to whether he denies the existence of any public right in respect of the
way, river, etc., and if he does so, the Magistrate shall inquire into the matter.
If in such inquiry the Magistrate finds reliable evidence in support of such denial, he shall stay the proceedings
until the matter of the existence of such right has been decided by the competent court; and if he finds no such
evidence, he shall proceed in accordance with Section 138. A person who has failed to deny the existence of such
a public right or who even after such denial has failed to adduce reliable evidence in its support, shall not be
allowed to make any such denial in the subsequent proceedings. [S. 137]
The inquiry as contemplated by Section 137 above is confined only to the denial of the public right and it has
nothing to do with the inquiry made for determining whether or not the conditional order made under Section
133(1) is reasonable or proper. This latter inquiry can be made after the inquiry contemplated by Section 137 has
resulted in a finding against the person to whom the conditional order was issued.
The object of Section 137 is that if the denial of the public pathway, etc. involves a bona fide claim on the part of
the person denying the public right, the matter should be decided by a competent civil court and not by a
Magistrate in a summary inquiry provided under Section 137.
PROCEDURE WHERE HE APPEARS TO SHOW CAUSE
If the person against whom an order under Section 133 is made appears and shows cause against the order, the
Magistrate shall take evidence in the matter as in a summons case. If the Magistrate is satisfied that the order is
reasonable and proper the order shall be made absolute; if he is not so satisfied, no further proceedings shall be
taken in the case. [S. 138]
It is imperative for the Magistrate to take evidence in the matter and therefore he cannot just dispose of the matter
without taking any evidence. His inspection of the site will not be of any use. It is not permissible to adduce
evidence by way of affidavits and the Magistrate is bound to record evidence in the same manner as is recorded in
a summons case.
LOCAL INVESTIGATION AND EXPERT EVIDENCE
The Magistrate may for the purposes of an inquiry under Section 137 or Section 138 (i. e., as mentioned in para 2
and 3 above)— (a) direct a local investigation to be made; or (b) summon and examine an expert. [S. 139]
Where the Magistrate directs a local investigation by any person under Section 139, the Magistrate may—
(a) furnish such person with such written instructions as may seem necessary for his guidance;
(b) declare by whom the expenses of the local investigation shall be paid. The report of such person may be read
as evidence in the case. [S. 140(1)and (2)]
Where the Magistrate summons and examines an expert, he may direct by whom the costs of such summoning
and examination shall be paid. [S. 140(3)]
PROCEDURE ON ORDER BEING MADE ABSOLUTE AND CONSEQUENCES OF DISOBEDIENCE
When an order has been made absolute under Section 136 or Section 138, the Magistrate shall give notice of the
same to the person against whom the order was made, and shall require him to perform the act directed by the
order within the time fixed in the notice, and inform him that, in case of disobedience, he shall be liable to
punishment under Section 188, IPC. [S. 141(1)]
If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover
the costs of performing it, either by the sale of any building, goods or any other property removed by his order, or
by the distress and sale of any other movable property of such person. [S. 141(2)]
No suit shall lie in respect of anything done in good faith under the above provisions. [S. 141(3)]
It has been held that the order passed by a court cannot be reviewed by itself. Nor could the order be amended
without giving notice to the parties.
INJUNCTION PENDING INQUIRY
If a Magistrate making an order under Section 133 considers that immediate measures are necessary to prevent
imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against
whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of
the matter. In default of such person forthwith obeying such injunction, the Magistrate may himself use such
means as are necessary to obviate such danger or to prevent such injury. [S. 142(1) & (2)]
Though there is no specific provision to give notice to the person concerned before an injunction is issued, justice
and fairness demand that order of injunction should ordinarily be issued only after affording an opportunity to the
affected person of being heard.
No suit shall lie in respect of anything done in good faith by a Magistrate under the above provision. [S. 142(3)]
MAGISTRATE MAY PROHIBIT REPETITION OR CONTINUANCE OF PUBLIC NUISANCE
A District Magistrate or Sub-Divisional Magistrate, or any other Executive Magistrate duly empowered in this
behalf, may order any person not to repeat or continue a public nuisance as defined in the Indian Penal Code or
any special or local law [S. 143].
Such an order can be passed only if the matter has been adjudicated by a competent court. Disobedience of the
order is punishable under Section 291 of the IPC.

Q) Describe the procedure which a Magistrate has to adopt in an enquiry relating to public
nuisance?
A: section 39 and Section 40

Q) ) Explain the term Charge. What are the contents of Charge?

 Charge in simple words means ‘accusation’.
o It is a formal recognition of a concrete accusation by the magistrate or court based upon a
complaint or information against the accused.
 Section 2(b) of the Code of Criminal Procedure, 1973 (CrPC) defines ‘charge’ which states that,
the charge includes any head of charge when the charge contains more than one head.
 In case the accused is not informed about the charge against him it will lead to injustice as the
accused is not aware of the charge against him and th us, he would not be able to prepare his defense.
 One of the basic requirements of a fair trial in criminal cases is to give precise information to the
accused as to the accusation against him and then the ‘charge’ is to be read and explained to the
accused.
Purpose of Framing Charge
 The Supreme Court in the case of V. C. Shukla v. State (1979) held that the purpose
behind framing charge is to give clear, unambiguous, or precise notice of the nature
of accusation that the accused is called upon to meet in the course of a trial.
Contents of Charge: Section 211of CrPC
 Section 211 constitutes essential elements of charge:
o It must state the offence with which the accused is charged.
o The charge framed shall specify the exact offence name for which the accused is charged.
o In case there is no specific name given under any law for the offence with which the accused
is charged off, then the definition of the offence must be clearly stated so as to bring to
the knowledge of the accused the exact matter with which he has been charged.
o The law and the section of the law against which the offence is said to be committed shall be
mentioned in the charge.
o The mere fact that a charge has been filed equates to a declaration that every legal
condition necessary by law to create the alleged offence has been met in this case.
o The charge must be written in the language of the court.
 o If the accused has been previously convicted of any offence, then the fact, date and
place of previous conviction should be stated in the charge for enhanced punishment which
the court might pass if it finds the accused guilty of the offense charged.
Particulars as to Time, Place and Person: Section 212
 The charge framed shall contain the particulars as to the time and place of the alleged offence and
the person against whom the offence is committed in order to give the accused precise
information and clear notice of the matter for which he is charged.
 The exact time need not be mentioned in the charge form when the accused is charged with criminal
breach of trust or dishonest misappropriation of money or any other movable property, the gross
sum specified and the dates on which such alleged offence has been committed will be sufficient.
o For example, in case of murder the date and time of murder and the details of the
accused and the deceased will be sufficient.
When the Manner of Committing Offence Must be Stated: Section 213
 When the nature of the case is such that the particulars indicated in Section 211 and Section 212 do
not provide the accused with adequate notice of the allegation with which he is charged,
the charge shall contain such particulars of how the alleged offence is committed as would provide
for that purpose.
o For example- A is accused of cheating B at a given time and place. The charge must set out
the manner in which A cheated B.
Alteration of Charge and the Procedure to be followed
Power of the Court to Alter Charge: Section 216
 This section explains that the court shall have the power to alter or add to a charge at any
time before the pronouncement of judgement.
 After such alteration or any addition made to the charge, the charge shall be explained to
the accused.
 If an alteration or addition to a charge is such that proceeding of the trial immediately would not
prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may, in its
discretion, proceed with the trial as if the altered or added charge was the original charge after the
alteration or addition has been added.
 If an addition or alteration to a charge is such that proceeding of the trial immediately would
prejudice the accused in his defence or the prosecutor in the conduct of the case, the court may either
order a new trial or adjourn it as it deems fit.
 If the offence stated in the altered or added charge is one for the prosecution, the case shall not
move forward unless sanction has been obtained for prosecution in respect of facts constituting the
offence on which the altered or added charge is founded.
 The principle that has to be kept in mind is that the charge so framed by the Magistrate is in
accordance with the material produced before him or if subsequent evidence comes on record.
 Unless the evidence has been let in, charges already framed cannot be altered, as that is not the
intent of Section 216 CrPC.
 It is obligatory on the part of the court to see that no prejudice is caused to the accused, and he is
allowed to have a fair trial.
 The trial court or the appellate court may either alter or add to the charge provided the only
condition is:
o The accused has not faced charges for a new offence.
o The accused must have been given the opportunity of defending the charge against him.
Q: ) When Court may alter Charge?
A: The charge sheet contains the substance of the specific complaint as to the date, time, and place of the alleged
crime, the person or things against whom the crime is allegedly committed, the circumstances of the crime, the
law and sections allegedly violated, and is read over and explained to the accused in order to make him aware of
the full particulars of the allegation against him so that he can properly defend himself. The Judge or Magistrate is
unsure whether to formulate the charge based solely on the police charge sheet.
Amendment/Alteration of charge

Any charge can be changed or added to by the Court at any moment before judgement is rendered. Every such
change or addition must be read to the accused and explained. If the modification or addition to a charge is such
that proceeding with the trial immediately would not, in the Court's opinion, prejudice the accused in the defence
or the prosecutor during the course of the case, the Court may, in its discretion, proceed with the trial as if the
improved or added charge had been the original charge after the modification or addition has been made.

The case may not be prosecuted if the offence indicated in the revised or added charge is one for which prior
penalty is required. Unless prior consent has been acquired for a prosecution based on the same evidences as
those used to establish the revised or added charge, with until such permission is secured.
When a charge is altered or added to by the Court after the start of a trial, the prosecutor and the accused
are both allowed to:
(a) Re-summon and examine any witness who may have been examined with reference to such alteration or
addition, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as
the case may be, desires to recall or re-examine such witness for the purpose of the trial.

a. To summon any further witnesses the Court deems relevant.

b. If a charge is changed, the accused has the right to recall any witness who the prosecution or the
accused wishes to recall, and the Court is required to do so.
Following a charge change or addition, the prosecution's and accused's interests must be protected by allowing
them to re-examine or cross-examine previously examined witnesses, as appropriate, and by allowing them to call
additional witnesses. And the Court has the authority to deny a prosecutor's or an accused's motion to recall
witnesses based on three factors: vexation, delay, or defeating the interests of justice.

When a charge containing more than one head is framed against the same person, and one or more of them is
convicted, the complainant, or the officer leading the prosecution, may, with the Court's consent, remove the
lasting charge or charges, or the Court may, on its own accord, stay the review into, or trial of, such charge or
charges, and such removal shall have the effect of a discharge on such charge.

When the accused is convicted of one of multiple offences before the other charges are tried, this section is
suitable. The charges must be for separate offences, and the provision will not apply if the charges are brought
under Sections 220(3), 220(4), or 221.
Legal Position
Under the code of criminal procedure, how does the court modify the charge? If the court finds that there is
sufficient evidence on record to prove the occurrence of any offence not charged by the court, the charge may be
changed during the trial.

Under section 216 of the Code of Criminal Procedure, the court has the authority to change or add to the charge at
any moment until the verdict is rendered.

The term "at any time before judgement is announced" suggests that the authority is broad. This power should
only be exercised in suitable circumstances, and the court should ensure that its order does not harm the accused.
The ultimate purpose of this power should be to serve the interests of justice. Sections 228 and 240 of the Code,
respectively, deal with the formulation of the charge during a trial before a Court of Sessions and the trial of
Warrant -cases by Magistrates. Whenever such a change or addition is made, it must be read out and the accused
must be told.

The legal position is well established that the Trial Court is not required to examine and assess the materials
placed on record by the prosecution in detail at the stage of charge framing, nor is it required to consider the
sufficiency of the materials to establish the offence alleged against the accused persons. The Court is only
required to review the documents at the charge stage in order to be satisfied that a prima facie case of commission
of the claimed offence has been made out against the accused individual.

Tulsabai v. the State of M.P.: [1]The Court does not need to conduct an extensive investigation when
formulating the charge. Even if prima facie materials are discovered, the framing charge order cannot interfere.
In Thakur Shah v. Emperor [2]: The Privy Council spoke on alteration or addition of charges as follows:
"The alteration or addition is always, of course, subject to the limitation that no course should be taken by reason
of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given
full opportunity of meeting it and putting forward any defence open to him on the charge finally preferred."

Q: The Charge shall contain particular as to time, place and person" – Comment

According to Section 212 of the Code, in order to give sufficient notice of the matter to the accused of which he is
charged, then the charge shall contain the following components:
 Time and place of the alleged offence;
 The person (if any) against whom the offence was committed;
 The thing (if any) in respect of which the offence was committed by the accused.
It should be noted that in case an offence is committed which is of the nature of the criminal breach of trust or
dishonest misappropriation when the exact amount in question cannot be determined, then, in the said charge it
shall be sufficient to specify the gross sum of money or movable property, as the case may be, in respect of which
the offence was committed.
In addition, the dates between which the said offence was committed shall also be mentioned in the charge sheet.
It shall also be noted that it shall not be necessary to specify the exact items in question or the exact dates,
provided that the time included between the first and the last date of such dates does not exceed one year.

Q: Joinder of charge [4]

A: This topic comes under Part B of Chapter XVII of the Criminal Procedure Code, 1973. Section 218 to Section
224 deals with “Joinder of Charges”. This part is inserted in this Code to prevent any kind of prejudice that might
develop in the Magistrate’s mind regarding the character of the accused person due to his offences. Section 218
explains thst every distinct offence shall be a separate charge and every charge shall be tried separately. In
Kamalanantha v. State of Tamil Nadu [(2005)5 SCC 194: AIR 2005 SC 2132], it was upheld that if a trial is
proceeded without framing separate charges for each distinct offence then it is an irregularity and this can be
cured under Section 464 and 465 of Cr.P.C provided that there was no failure of justice. This section also
highlights a proviso for the accused that he can submit a writing to the Magistrate to try together all or any
number of charges framed against him if it would cause no prejudice as such. Application can be given under this
provision only when the all the distinct offences of that person is tried under the same Magistrate. This was
mentioned in the case of State of Punjab v. Rajesh Syal [(2002) 8 SCC 158]. EXCEPTIONS OF SECTION 218
Section 219 states if a person is accused of committing three offences of same kind within a year then all of the
offences may be charged with and tried at one trial. Section 220 elaborates that offences which are committed in
the course of same transaction may be charged with and tried at one trial. It lists out several provisions related to
this. Section 221 provides that if a single act or a series of act is of such a nature that it is doubtful which of
several offences the facts should be proved, then the accused may be charged with having committed all or any of
such offences. Any number of such charge may be tried at once or he may be charged in the alternatively. Section
222 says that if the accused is charged with an offence that consist several particulars, some of which if combined
and proved to be a minor offence then the accused shall be convicted for that minor offence even if it was not
mentioned. Section 223 specifically handles the class of persons who can be tried jointly. This section permits a
joint trial of several persons under specified circumstances. Section 224 states that when a charge containing mire
heads than one is framed against the same person then the officer conducting the prosecution may with the
remove the remaining charges with the consent of the Court provided that conviction of one or more of them has
already been performed against him.
JUDICIAL ANALYSIS OF JOINDER OF CHARGES: a. In the case of Subrahmania Ayyar v. King Emperor,
[21]it was held that disregard of an express provision of law as to the mode of the trial (under Sections 233 &
243) should not be regarded as a mere irregularity. Still, an illegality and such trial shall be regarded as conducted
in a manner prohibited by law. b. In Kamalanantha & Ors. V. State of Tamil Nadu, the Court observed, “It is true
that Section 218 CrPC prescribes that for every distinct offence, there shall be a separate charge and every charge
shall be tried separately…if joinder of charges is in contravention of procedure prescribed under Section 218, it
would be misjoinder of charges…To ascertain that, it is the duty of the court to see whether the accused knew
what he was being tried for, whether the main facts sought to be established against him were explained to him
fairly and clearly and whether he was given a full and fair chance to defend himself.”

Q: "For every distinct offence of which any person is accused there shall be a separate charge and
every such charge shall be tried separately" - Explain.
A: Section 318 crpc

Q: Discuss, in details, the provisions for Trail before the Court of Session.

Ans: District court referred to as sessions court when it exercises its jurisdiction on criminal matters under
Code Of Criminal Procedure 1973. As per section 9 of Code of Criminal Procedure, 1973, the State
government establishes court for every session division. The court presided over by a Judge, appointed by
the High Court of that particular state. The High Court may also appoint Additional Sessions Judges and
Assistant Sessions Judges in this court. In India, the Sessions Court has responsibility for adjudicating
matters related to criminal cases.

The court takes the responsible for cases relating to murders, theft, dacoity, pick-pocketing and other such
cases. Trial is an important process to determine whether the accused is guilty of an offence. Basing on the
seriousness of the offence, criminal cases are categorized under two heads viz:

1. Summons cases; and

2. Warrant cases.

Among warrant cases, the cases which are more serious in nature are triable by the Court of Session, while
less serious cases are triable by the Courts of Magistrate. A Court of Session cannot take cognizance of any
offence, though it is triable by it. A competent Magistrate takes cognizance of any offence and commits the
case for trial by a Court of Session. Trial of Criminal cases may be explained with reference to the following
heads:

1. Trial (of Warrant-Cases) before a Court of Session.

2. Trial of Warrant-Cases by Magistrates.
3. Trial of Summons-Cases by Magistrates.
 4. Summary Trials.

The code lays down the procedure for trial before a court of session as follows:
a. Parties (sec. 225): In a trial before a court of session, the prosecution shall be conducted by a public
prosecutor. The accused has a right to engage a counsel of his choice. If he cannot afford to engage
the defence counsel, the court engaged at the state expenses. Before commencing the trial, the
accused in supplied with the copies of documents like police report, F.I.R etc.

b. Opening the case (sec. 226): The public prosecutor opens the case by describing accusation against
the accused. He states briefly by what evidence, he proposes to prove the guilt. The prosecutor duty is
not to secure a conviction but simply to lay the facts of the case before the tribunal, which is to judge.

c. Discharge of the accused (sec. 227): After hearing from both the parties if the court considers that
there is no sufficient ground to proceed against the accused, discharges him and records the reason for
doing so. There is no scope for examination of any witness but there is scope for both sides to argue
their case in favour of framing charge or discharge.

d. Framing of charge (sec. 228): After hearing from both the parties if the court presumes that the
accused might have committed the offences:
i) If frames a charge in writing, if the offence is exclusively triable by the Court of Session.

ii) If the offence is not triable exclusively by the session’s court, it frames charge and transfers the
case to the Chief Judicial Magistrate. It was held in Kanti Bhadra Shah & anr v. State of West Bengal
{1}while exercising power under Section 228 CrPC, the Judge is not required to record his reasons
for framing the charges against the accused.

While framing charges, only the prima facie case has to be seen. At this stage, the Judge is not
required to record a detailed order necessary to see whether the case is beyond reasonable doubt as
held by the Supreme Court in Bhawna Bai v. Ghanshyam & Ors.(2)

In Rukmini Narvekar v. Vijaya Satardekar {3} it was ruled by the Court that the accused cannot
produce any evidence at the stage of framing of charge and only those materials can be taken into
consideration which is specified in Section 227 at the time of framing charges.

e. Explaining the charge and enquiry about plea (sec. 228(2)): The contents of the charge have to be
explained to the accused as to enable him to plead guilty of the offence or claim to be tried.
In Banwari v. State of UP, {4} the Court held that default in reading out or explaining the charge to
the accused would not vitiate the trial unless it has been shown that non-compliance with Section 228
has resulted in prejudice to the accused.

f. Conviction on plea of guilty (sec. 229): If the accused pleads guilty, the judge shall record the plea
and may in his discretion convict him thereon. It was held in Queen Empress v. Bhadu {5} that the
plea of guilty must be in unambiguous terms otherwise such a plea is considered as equivalent to a
plea of not guilty. Section 229 states that if an accused pleads guilty then the Judge shall convict him
as per his discretion and shall record the same. The Court cannot convict an accused on the basis of
the plea of guilty where the offence is of a nature in which the punishment is death or imprisonment
for life. In Hasaruddin Mohommad v. Emperor,{6} the Court held that it will be reluctant for the
 Court to convict a person accused of an offence in which the punishment is death or life
imprisonment on the basis of his plea of guilty. The right of appeal of the accused is curtailed by
Section 375 If the accused is convicted on the basis of his plea of guilty.

g. Date for prosecution evidence (sec. 230): If the accused refuses to plead or does not plead or claims
to be tried or is not convicted under sec. 229, the judge shall fix at date for the examination or witness
or may order for compelling appearance of any witness or production of a thing/document.

h. Evidence for prosecution (sec.231):

It consists of two points:
i) On the date so fixed as above, the judge takes all such evidence is support of the prosecution.
ii) The judge may in his discretion, permits the cross examination of any witness to be deferred until
any other witness have been examined or recall any witness for further cross examination.

In Ram Prasad v. State Of U.P , {7} The Supreme Court was held that, if the court finds that the
prosecution had not examined witness for reasons not tenable or proper, the Court would be justified
in drawing an inference adverse to the prosecution.

The Court observed in Statep of Kerala v. Rasheed {8} that a balance must be struck between the
rights of the accused and the prerogative of the prosecution to lead the evidence while deciding an
application under Section 231(2). The following factors must be considered:
1. The possibility of undue influence,
2. Threats,
3. That non-deferral would enable subsequent witnesses giving evidence on similar fact to tailor their
testimony to circumvent the defence strategy,
4. Loss of memory of the witness whose examination-in-chief has been completed.

i. Arguments of the prosecution (sec. 314(2)): The prosecution after the close of witnesses submits a
memorandum of his oral arguments. A copy of the same if is supplied to the opposite party.

j. Examination of the accused: It is to be made without administering oath. It is to give an opportunity

to him to explain the circumstances alleged against him by prosecution.

k. Acquittal (sec. 232): After hearing from both the parties if the judge considers that the accused has
not committed the offence, record an order acquitting the accused.

l. Entering upon defence (sec. 233): If the accused is not acquitted, he shall be called upon to enter on
his defence. The court may summon or examine at any stage any person as court witness.

m. Arguments (sec. 234): After recording defence, the prosecutor sums up his case and the accused or
his pleader shall be entitled to reply. The prosecutor may be allowed to make his submission in case
any law point is raised by the defence.

n. Judgment of acquittal or conviction (sec. 235): After hearing arguments from both the sides, the
court delivers judgment of acquittal or conviction. On this point, the Apex Court in Santa Singh v.
State of Punjab {9} held that the Judge should first pass a sentence of conviction or acquittal. If the
 accused is convicted he shall be heard on the question of sentence and only then the Court shall
proceed to pass a sentence against him.

In Bacchan Singh v. State of Punjab, {10} it was ruled by the Court that this Section provides for a
bifurcated trial and specifically gives to the accused person a right of pre-sentence hearing which may
not be strictly relevant to or connected with the particular crime under inquiry but may have a bearing
on the choice of the sentence.

o. Previous Conviction (sec. 236): In a case where a previous conviction is charged under the
provisions of sub Sec. (7) of Sec. 211, and the accused does not admit that he has been previously
convicted as alleged in the charge, the judge may take evidence in respect of the alleged previously
conviction and shall record a finding there on:
Provided that no such charge shall be read out by the judge not shall the accused be asked to plead
thereto nor shall the previous conviction be referred to by the prosecution or in any evidence adduced
by it unless and until the accused has been convicted under sec. 299 or sec. 235.

p. Procedure in cases instituted under sec. 199(2) (sec. 237):

i) A Court of Session taking cognizance of an offence under sub sec. (2) of sec 199 shall try the case
in accordance with the procedure for the trial of warrant cases instituted otherwise than on a police
report before a court of magistrate.

ii) Every trial under this section shall be held in camera if either party thereto so desires or if the court
thinks fit so to do.

iii) If, in any such case, the court discharges or acquits all or any of the accused and is of the Opinion
that there was no reasonable cause for making the accusation against them or any of them, it may try
its order of discharge or acquittal, directs the person against whom the offence was alleged to have
been committed to show cause why he should not pay compensation to such accused or to each or any
of such accused, when there are more than one.

iv) The court shall record and consider any cause which may be shown by the person so directed and
if it is satisfied that there was no reasonable cause for making the accusation, it may make an order
that compensation to such amount not exceeding Rs.1000 it may determine, be paid by such person to
the accused or to each or any of them.

v) Compensation awarded under sub sec. (4) shall be recovered as if it were a fine imposed by a
magistrate.

vi) No person directed to pay compensation under sub sec (4) shall be exempted from any civil or
criminal liability 1n respect of the compliant made under this section.

vii) The person who has been ordered under sub sec. (4) to pay compensation may appeal to the High
Court.

viii) When an order for payment of compensation to an accused person is made, the compensation
 shall not be paid to him before the period allowed for the presentation of the appeal has elapsed, or if
an appeal is presented, before the appeal has been decided.

Q: ) What types of offences are tried before it?

1. Ans: Types of Offences: Offences commonly tried by the Sessions Court under the CrPC include:
o Murder (Section 302 IPC)
o Attempt to Murder (Section 307 IPC)
o Culpable Homicide not amounting to Murder (Section 304 IPC)
o Rape (Section 376 IPC)
o Kidnapping for Ransom (Section 364A IPC)
o Dacoity with Murder (Section 396 IPC)
o Grievous Hurt (Sections 325, 326 IPC)
o Robbery (Section 392 IPC)
o Arson (Sections 435, 436 IPC)
o Drug Trafficking (NDPS Act)
o Economic Offences involving large sums of money
2. Powers of the Sessions Judge: The Sessions Judge has the authority to pass any sentence authorized
by law, including the death penalty, but any death sentence passed by the Sessions Judge is subject to
confirmation by the High Court.
3. Appeals and Revisions: The Sessions Court also hears appeals from judgments and orders of
Magistrate Courts and can revise orders to ensure the correct application of law and justice.
4. Trials: The trial procedure in the Sessions Court is more formal and elaborate compared to
Magistrate Courts. It includes framing of charges, examination and cross-examination of witnesses,
and the presentation of evidence.
The Sessions Court thus serves as a critical component of the criminal justice system in India, dealing with the
most serious and complex criminal cases under the CrPC.

Q) SUMMARY TRIAL

Ans: Summary Trials

Summary trial means speedy trial or without any delay of formal proceedings i.e. in an informal manner.

Chapter XXI containing sec. 260 to 265 of the code of criminal procedure I973 lays down the provisions relating
to summary trials as stated below:
a. Magistrate competent to try summarily (sec 260(1)): According to see. 260(1) of the code the
following magistrates can try summarily:
i) Any Chief Judicial Magistrate.
ii) Any metropolitan magistrate.
iii) Any magistrate of first class specifically empowered in this behalf by the High court.
iv) Any magistrate of the second class empowered by the High Court in this behalf may try
summarily any offence punishable with fine or with imprisonment for a term not exceeding 6 months
with or without tine and any abetment of or any attempt to commit any such offence.

b. Offences triable summarily (sec. 260(1)): According to see. 260(1) of the code the following
offences are triable summarily:
i) Offences not punishable with death, imprisonment for life or imprisonment for a term exceeding 2
 years.
ii) Theft under sec. 379, sec. 380 or see. 381 of the IPC where the value of the property stolen does
not exceed Rs. 200.
iii) Receiving or retaining stolen property under sec. 411 of I.P.C where the value of such property
does not exceed Rs. 200.
iv) Assisting in the concealment or disposal of stolen property under sec. 414 of the IPC where the
value of such property does not exceed Rs. 200/-.
v) Offences under sec. 454 and 456 of I.P.C.
vi) Insult with intent to provoke a breach of the peace, under sec. 504 and criminal intimidation under
sec. 506 of IPC.
vii) Abetment of any of the foregoing offences. . viii) An attempt to commit any of the foregoing
offences, when such attempt is an offence. ix)'Any offence constituted by act in respect of which a
complaint may be made under sec. 20 of the cattle Tresspass Act 1871.

c. Procedure for summary trials (sec. 262(1)): The procedure for summary trial shall be the same as
in summons cases except in so far as it is modified by the provisions of this chapter XXI.

d. Punishment (sec. 262(2)): The punishment under summary trial shall not exceed 3 month
imprisonment.

e. Record in summary trials (sec. 263): In summary trial, a formal charge is not framed nor is the
evidence of the witness recorded. The magistrate must himself write these particulars in the register.
He cannot depute that duty to his clerk. Further he is not authorized to affix his signature to the record
or judgment by a stamp. The record should be made at the time of trial and afterwards.

f. Judgment (sec. 264): Sec. 264 provides for judgment in cases tried summarily.

g. Language of record and judgment section 265: section 265 prescribes the language and record of
judgment in respect of summary cases.

Q: ) Define Bail. In what cases bail will be granted?

Bail’ connotes the process of procuring the release of an accused charged with certain offence by ensuring his
future attendance in the court for trial and compelling him to remain within the jurisdiction of the court.[1] The
concept of bail has come under the scope of human rights since the UN declaration of Human Rights of 1948.
The objective of an arrest is to ensure the appearance of the accused before the court for justice to be delivered.
However, if a person’s appearance can be guaranteed without him having to be arrested, there is no reason to
violate his liberty. Therefore, a bail can be granted as a conditional release to the accused person.
Section 436 to 450 of the Criminal Procedure Code mentions the provisions with respect to Bail and Bail bonds.
Bail has been defined by Black’s Law Dictionary as “the security required by a Court for the release of a prisoner
who must appear at a future time”. It further says that, verb Bail means “to obtain the release of oneself or another
by providing security for future appearance.”
Bail therefore presupposes the deprivation of liberty of the person to be released and when he is released from
such restraint or custody he is said to be released on bail.
Types of Bail In India
Depending upon the sage of the criminal matter, there are commonly three types of bail in India:
1. Regular bail- A regular bail is generally granted to a person who has been arrested or is in police
custody. A bail application can be filed for the regular bail under section 437 and 439 of CrPC.
2. Interim bail- This type of bail is granted for a short period of time and it is granted before the hearing
for the grant of regular bail or anticipatory bail.
 3. Anticipatory bail- Anticipatory bail is granted under section 438 of CrPC either by session court or
High Court. An application for the grant of anticipatory bail can be filed by the person who discerns
that he may be arrested by the police for a non- bailable offence.

Conditions For Grant of Bail In Bailable Offences

Section 436 of Code of Criminal Procedure, 1973, lays down that a person accused of bailable offence under IPC
can be granted bail.

Conditions for bail in bailable offence are:

1. There are sufficient reasons to believe that the accused has not committed the offence.
2. There is sufficient reason to conduct further enquiry in the matter.
3. The person is not accused of any offence punishable with death, life imprisonment or imprisonment
up to 10 years.

Conditions For Grant of Bail In Non-Bailable Offences

Section 437 of Code of Criminal Procedure,1973 lays down that the accused does not have the right to apply for
bail in non-bailable offences. It is discretion of the court to grant bail in case of non-bailable offences.
Conditions for bail in non- bailable offence are:
1. If the accused is a woman or a child, bail can be granted in a non-bailable offence.
2. If there is lack of evidence then bail in non-Bailable offences can be granted.
3. If there is delay in lodging FIR by the complainant, bail may be granted.
4. If the accused is gravely sick.

Cancellation of Bail
Court has the power to cancel the bail even at a later stage. This power is laid upon the court under section 437(5)
and 439(2) of the CrPC. The court can cancel the bail granted by it and give directions to the police officer to
arrest the person and keep in police custody.
Under the Code of Criminal Procedure (CrPC) in India, the granting of bail depends on several factors, including
the nature of the offence, the stage of the investigation, and the discretion of the court. Here are the key provisions
and considerations for granting bail:
1. Bailable and Non-Bailable Offences:
o Bailable Offences: According to Section 436 of the CrPC, if a person accused of a bailable
offence is arrested or detained, they are entitled to be released on bail as a matter of right. The
police officer or the court must release the accused on bail upon furnishing the required
security.
o Non-Bailable Offences: Under Section 437 of the CrPC, bail in non-bailable offences is at
the discretion of the court. The court may grant bail if it deems fit, considering various factors
such as the severity of the offence and the likelihood of the accused absconding or tampering
with evidence.
2. Factors Considered for Granting Bail:
o Severity of the Offence: Seriousness of the offence and the punishment prescribed.
o Likelihood of Absconding: Whether the accused is likely to flee if released on bail.
o Influence on Witnesses: Whether the accused might tamper with evidence or influence
witnesses.
o Previous Criminal Record: Whether the accused has a history of criminal activities.
o Health and Age: Health conditions, age, and gender may also be considered.
 o Delay in Trial: If there is an undue delay in the trial process, the court may consider granting
bail.
o Likelihood of Reoffending: Whether the accused is likely to commit another offence if
released.
3. Special Considerations:
o Bail for Women, Children, and Sick Persons: Courts are generally more lenient when
considering bail for women, children, and sick or infirm persons.
o Anticipatory Bail: Under Section 438 of the CrPC, a person apprehending arrest for a non-
bailable offence may apply for anticipatory bail. This is granted at the discretion of the
Sessions Court or High Court.
4. Sessions Court and High Court:
o Under Section 439 of the CrPC, both the Sessions Court and the High Court have the power to
grant bail for non-bailable offences. They can also impose conditions to ensure that the
accused does not tamper with evidence, threaten witnesses, or flee from justice.
5. Mandatory Bail (Default Bail):
o Under Section 167(2) of the CrPC, if the police fail to complete the investigation within a
specified period (90 days for offences punishable with death, life imprisonment, or
imprisonment for not less than 10 years; 60 days for other offences), the accused is entitled to
be released on bail.
In summary, the decision to grant bail under the CrPC involves a careful assessment of various factors by the
court to ensure that the accused's right to liberty is balanced against the interests of justice and public safety.

Q: When can bail be granted in cognizable offences?

A: Under the Code of Criminal Procedure (CrPC) in India, the grant of bail in cognizable offences is subject to
specific provisions and judicial discretion, depending on whether the offence is bailable or non-bailable. Here are
the key points:
Bailable Offences
 Right to Bail: For bailable cognizable offences, the accused has a right to be released on bail.
According to Section 436 of the CrPC, if the accused is arrested for a bailable offence, they must be
released on bail after furnishing the required security.
 Police and Court Discretion: The police officer in charge or the court must grant bail once the
accused provides the necessary bond and sureties.
Non-Bailable Offences
For non-bailable cognizable offences, bail is not a matter of right but is at the discretion of the court. The relevant
provisions under the CrPC are:
Section 437: When Bail May Be Taken in Case of Non-Bailable Offence
 Discretion of the Court: A person accused of a non-bailable offence may be granted bail by a
Magistrate, except in cases where there are reasonable grounds to believe that the accused is guilty of
an offence punishable with death or life imprisonment.
 Special Considerations:
o Women, Children, and Sick Persons: Courts may be more lenient in granting bail to
women, children under 16, or persons who are sick or infirm.
o First-Time Offenders: The court may also consider granting bail to first-time offenders.
 Conditions for Bail: The court may impose conditions to ensure the accused does not tamper with
evidence, intimidate witnesses, or abscond.
Section 439: Special Powers of High Court or Court of Session Regarding Bail
 Higher Discretionary Powers: The High Court and the Court of Session have broader discretionary
powers to grant bail for non-bailable offences.
 Conditions Imposed: These courts can impose any condition deemed necessary to ensure justice,
such as requiring the accused to surrender their passport or regularly report to the police.
Reasons for Granting Bail in Cognizable Offences
The court may grant bail for cognizable offences under the CrPC for various reasons:
1. Presumption of Innocence: The legal principle of presumption of innocence until proven guilty
supports the granting of bail.
2. Right to Liberty: Ensuring that the accused's right to personal liberty is protected unless there is a
compelling reason for detention.
3. Delay in Trial: If there is significant delay in the trial process, bail may be granted to avoid
prolonged pre-trial detention.
4. Health and Age Considerations: Bail may be granted for humanitarian reasons, especially for
women, children, elderly, and those with severe health issues.
5. Likelihood of Absconding: If the accused is unlikely to flee and has strong ties to the community,
bail is more likely to be granted.
6. Non-Interference with Justice: If there is minimal risk of the accused tampering with evidence or
intimidating witnesses.
7. Nature and Gravity of the Offence: Less severe offences may increase the likelihood of bail being
granted.
In conclusion, while cognizable offences are serious and often non-bailable, the CrPC provides provisions for bail
based on judicial discretion and a balance between the rights of the accused and the interests of justice.

Factors taken into account while granting bail in non-bailable offences

In non-bailable offence cases, the court can choose to grant bail or not, unlike bailable offences where bail is
usually granted upon providing sureties and a bond. While deciding whether to grant bail, the court and police
officers need to consider the following factors:
1. The seriousness of the offence;
2. The nature of the offence with which such individual is alleged;
3. The nature and seriousness of the circumstances surrounding the event;
4. The harshness of penalty in terms like the duration of the imprisonment, and the likelihood of the
death penalty.
5. The reliability of the evidence provided;
6. Whether the petitioner was provided with the opportunity to prepare his defence;
7. The risk of the accused escaping or running away;
8. Extended trials that exceed necessary durations;
9. The age, health gender of the accused person can influence their release.
10. The accused’s influence on witnesses and potential for witness manipulation, especially after release,
will be assessed based on their social status and position;
11. The public’s interest and the chances of someone offending again after spreading information.

Q: Discuss the provisions for grant of bail in the cases of non-bailable offences with decided case
laws.

A: How is bail granted for a non-bailable offence

Section 437 of the Criminal Procedure Code lays down the provision for granting bail for non-bailable offences.
The following are the provisions for bail in a non-bailable offence:
 The granting of bail for non-bailable offences is totally at the discretion of the court or the concerned
police officer.
 When a person accused of a non-bailable offence is arrested or detained without a warrant, he may be
granted bail by the police officer in charge of the concerned police station. However, there are some
restrictions to this power. Under any of the following circumstances, the police officer cannot grant
bail to such a person:
 1. There are reasonable grounds for believing that he is guilty of committing an offence that prescribes a
punishment of death or life imprisonment.
2. The offence is cognizable and there has been a previous conviction for an offence punishable with
death, life imprisonment, or imprisonment for at least 7 years.
3. If there have been two or more convictions of the accused for a cognizable offence, that prescribes a
punishment of imprisonment of 3 years to 7 years.
 Once a police officer has granted this bail, he must record the reasoning behind it and the same shall
be mentioned in the case diary.
 When a person who has been accused of committing a non-bailable offence appears before the
judicial magistrate or is brought before him, the judicial magistrate can exercise discretion in granting
him bail. However, the magistrate cannot exercise this power in any of the following circumstances:
1. There are reasonable grounds for believing that he is guilty of committing an offence that prescribes a
punishment of death or life imprisonment.
2. The offence is cognizable and there has been a previous conviction for an offence punishable with
death, life imprisonment, or imprisonment for at least 7 years.
3. If there have been two or more convictions of the accused for a cognizable offence that prescribes a
punishment of imprisonment of 3 years to 7 years.
 Though there are restrictions to this discretionary power as mentioned above, the police officer or the
judicial magistrate may grant bail to the accused if the accused is a woman, a person under the age of
16, or a person who is sick or infirm. Hence, in such cases, the restrictions in points a, b, and c will
not be applied.
 In the situations mentioned in points b and c, the officer or the magistrate may still grant bail if there
is any special reason for doing so.
 While releasing a person on bail, the officer or the magistrate must record the reasons or any special
reason for doing so in writing.
 The mere fact that an accused has to be identified by witnesses during the investigation process does
not disqualify him from being granted bail if he is entitled to bail otherwise.
 If the offence that the accused is alleged to have committed is punishable with death, life
imprisonment, or imprisonment for 7 years or more, then the public prosecutor must be given an
opportunity of hearing in order to grant bail to the accused.
 If at any stage of the case, whether it is during the investigation, enquiry or trial, the police officer or
the magistrate finds that there are no reasonable grounds for believing that the accused has committed
a non-bailable offence, then the accused shall be granted bail. On doing so, the reasons or special
reasons must be written and recorded.
 The trial of such an offence should ideally conclude within 60 days from the first date which was
fixed for taking evidence. If not, the accused person must be mandatorily released on bail if he was in
custody. If he is not released, the officer or the magistrate must record the reasons for doing so.
 A bail granted to an accused can be subsequently cancelled and the accused shall be re-arrested on the
satisfying of any of the following conditions:
1. Commission of the same offence by the accused.
2. Hampering of the investigation process by the accused.
3. Tampering of evidence by the accused, whether it is through intimidating prosecution witnesses or by
eliminating the evidence of the commission of the crime.
4. Violation of any of the conditions imposed by the court while granting bail.
Now that we know the procedure to get bail for a non-bailable offence, let us look at how bail can be sought by a
person who fears arrest on the charge of a non-bailable offence.
In Nethra v. State of Karnataka (2022), the Karnataka High Court held that if the applicant is a woman, she can
be granted bail for a non-bailable offence even if it is punishable with life imprisonment or the death penalty.
In the case of Mara Manohar v. State of Andhra Pradesh (2022), it was held that once there has been
considerable progress in the investigation of a case, a bail with conditions may be granted.
Anticipatory bail for a non-bailable offence
Section 438 of the Code lays down the procedure for granting bail to a person with the apprehension of arrest on
the charge of a non-bailable offence. This type of bail is called ‘anticipatory bail’. This allows a person to protect
himself from getting arrested for a non-bailable offence when he has a reasonable apprehension of being accused
of the same. One cannot seek anticipatory bail on the apprehension of being accused of a bailable offence as
receiving bail with respect to such offences is far easier. The following are the provisions under Section 438:
 Anticipatory bail can be granted by the High Court or the Court of Sessions.
 It directs the police officer to release the accused on bail upon his arrest.
 The factors the court must consider while granting anticipatory bail are the following:
1. Nature and gravity of the accusation.
2. Whether the applicant has been previously convicted or imprisoned for any cognizable offence.
3. Whether the accused is likely to avoid facing justice.
4. Whether the accusation was made with the motive to injure the applicant or to tarnish his reputation
by getting him arrested.
 The court can either reject the application for anticipatory bail or accept it and issue an interim order
to grant the same.
 If there is no issuing of the interim order, the police officer can arrest the applicant without a warrant
for the charge apprehended.
 Once the interim order is granted, a notice shall be sent, along with the order’s copy, to the public
prosecutor and the superintendent of police so as to provide them with a reasonable opportunity to be
heard during the hearing. The public prosecutor can also apply for the presence of the applicant, and
if it is deemed necessary for the interest of justice, his appearance shall be made obligatory.
 The following are some of the conditions that can be imposed by the courts while granting
anticipatory bail:
1. Availability for police interrogation.
2. No direct or indirect threat, promise, or inducement to anyone acquainted with the facts of the case in
order to convince or persuade such a person to not disclose such facts to the court or the police.
3. Not leaving India without taking the court’s permission.
4. Any other conditions in the interest of justice.
It is clear that anticipatory bail is granted only in exceptional circumstances and not in general cases. The object
of granting anticipatory bail is to save an innocent person from the apprehension and shame that comes from
arrest.
Once the arrest happens, the right to apply for anticipatory bail ceases to exist. One can make the application even
after an FIR has been filed, provided that the arrest has not been made. Filing of an FIR is not a prerequisite for
applying for anticipatory bail. However, there must be a reasonable apprehension of arrest on the charge of a
cognizable and non-bailable offence. While granting anticipatory bail, a person’s status and financial background
are irrelevant. However, the allegations must indicate a falsehood.
In the case of Adri Dharam v. State of West Bengal (2005), it was held that when a person gets arrested, if he
possesses the order of anticipatory bail, he shall be released immediately.
The applicant in the case of Narayan Ghosh alias Nantu v. State of Orissa (2009) was charged with criminal
conspiracy and applied for anticipatory bail. He was very financially and politically influential and had the
capacity to influence witnesses. There was also a possibility that the accused might flee. These factors led the
court to reject the bail of the accused.
In the case of Gopinath v. State of Kerala (1986), it was held that an application for anticipatory bail can be
submitted to the High Court even if it has been previously made before the Sessions Court on the same grounds
and rejected. Hence, a fresh application can be made before the High Court even though it has been rejected by
the Sessions Court.
In the case of Bholai Mistry And Anr. v. The State (1976), once anticipatory bail has been granted by the High
Court, only the High Court can cancel the bail and not the Sessions Court.
Q: DIFF B/W BAIL & ANTICIPATORY BAIL
A: FeatureAnticipatory BailRegular BailDefinitionAnticipatory bail is a type of pre-arrest bail that allows a
person to secure bail in advance in the event of their arrest.Regular bail is a type of bail that a person can apply
for after they have been arrested and produced before a court.PurposeThe purpose of anticipatory bail is to
prevent arbitrary arrest and allow the person to be prepared in case they are arrested.The purpose of regular bail is
to secure the release of an accused person who has already been arrested and produced before a
court.EligibilityAnticipatory bail can be granted to a person who has a reasonable apprehension of being arrested
for a non-bailable offense.Regular bail can be granted to a person who has been arrested for a bailable
offense.ApplicationAnticipatory bail can be applied for before the arrest takes place, usually by filing a petition in
a higher court. Its filled U/s 438 Cr. P.CRegular bail can be applied for after the arrest takes place, usually by
filing a bail application in the court where the accused is produced. It’s filled U/s 437,439 Cr. P.CDecision-
Making AuthorityThe decision to grant anticipatory bail lies with a Court of the session, a higher court, such as
the High Court or the Supreme Court.The decision to grant regular bail lies with the court where the accused is
produced.
Key Differences Between Regular and Anticipatory Bail
While both types of bail serve the fundamental purpose of ensuring that individuals are not unjustly detained
before being proven guilty, they differ in several key aspects.
Timing
 Regular Bail: Regular bail is sought after a person has been arrested and is in custody. It is typically
requested during the court proceedings following the arrest.
 Anticipatory Bail: Anticipatory bail is sought in anticipation of arrest. It is requested by an
individual who has a reasonable apprehension of being arrested for a non-bailable offence.
Nature of Offence
 Regular Bail: Regular bail is available for both bailable and non-bailable offences. For bailable
offences, bail is a matter of right, while for non-bailable offences, it is at the discretion of the court.
 Anticipatory Bail: Anticipatory bail is only available for non-bailable offences. It is a pre-arrest bail
that seeks to protect individuals from arrest for offences where bail is not a matter of right.
Right vs. Discretion
 Regular Bail: For bailable offences, bail is a matter of right and the accused is entitled to bail as a
matter of course. For non-bailable offences, bail is at the discretion of the court, which considers
various factors before deciding on bail.
 Anticipatory Bail: Anticipatory bail is also at the discretion of the court, but it is intended to be a
safeguard against unjust arrest. The court may grant anticipatory bail with or without conditions,
depending on the circumstances of the case.
Conditions
 Regular Bail: Regular bail may be granted with or without conditions, depending on the nature of the
offence and the circumstances of the case. The conditions may include surrendering the passport,
reporting to the police regularly or refraining from contacting witnesses.
 Anticipatory Bail: Anticipatory bail may also be granted with or without conditions. However, the
conditions are typically more stringent to ensure that the accused does not evade justice. The court
may impose conditions such as surrendering the passport, providing sureties or appearing before the
court as and when required.
Purpose
 Regular Bail: The purpose of regular bail is to ensure that individuals are not unjustly detained
before being proven guilty. It allows the accused to prepare their defence adequately and ensures that
their rights are protected under the law.
 Anticipatory Bail: The purpose of anticipatory bail is to protect individuals from arbitrary arrest and
detention. It is intended to prevent harassment and abuse of the legal process by authorities and to
uphold the principle of presumption of innocence until proven guilty.
Q: What is Anticipatory Bail?
Anticipatory bail, on the other hand, is a provision in the law that allows a person to seek bail in anticipation of
being arrested. It is a pre-arrest legal remedy that allows an individual to approach a court for bail if they have
reason to believe that they may be arrested for a non-bailable offense in the future. The purpose of anticipatory
bail is to provide protection to a person who fears arrest and is seeking relief from possible arrest, harassment or
detention by the police.
The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of
introducing a provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to
grant “anticipatory bail”. This provision allows a person to seek bail in anticipation of an arrest on accusation of
having committed a non-bailable offence. The very basic purpose of insertion of this provision was that no person
should be confined in any way until and unless held guilty. Anticipatory bail under criminal code of procedure
Where any person has a reason to believe that he may be arrested on accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in
the event of such arrest he shall be released on bail and the court shall provide him anticipatory bail after taking
into consideration the following factors, namely1. the nature and gravity of the 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 3. the possibility of the applicant to flee from justice.
4. 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. Where
the High court or court of session grants interim bail to the applicant then the court forthwith a show cause notice
attested with a copy of such order, served to the Public Prosecutor and the Superintendent of Police, with a view
to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard
by the Court. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary in the interest of justice. Who is eligible to obtain
anticipatory bail? When any person has a reason to believe that there is a chance to get him arrested on false or
trump up charges, or due to enmity with someone, or he fears that a false case is likely to be built up against him,
he has the right to move the court of Session or the High Court under Section 438 of the code of Criminal
Procedure for grant of bail in the event of his arrest, and the court may, if it thinks fit, direct that in the event of
such arrest, he shall be released on bail. Accused who has been declared as an absconder/proclaimed offender in
terms of Section 82 of the Criminal Procedure Code and not cooperated with the investigation should not be given
an anticipatory bail. Hon’ble APEX Court in State of M.P vs. Pradeep sharma (criminal Appeal No.2049 of 2013
dt.06-12-2013) held that “when a person against whom a warrant had been issued and is absconding or concealing
himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the
Code he is not entitled to the relief of anticipatory bail”. Conditions for obtaining the anticipatory bail: The High
Court or the court of the session may include such conditions in the light of the facts of the particular case,
including:  a condition that the person shall make himself available for interrogation by the police officer as and
when required;  a condition that the person shall not, directly or indirectly, make any inducement, threat or
promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
court or to any police officer;  a condition that the person shall not leave India without the previous permission
of the court.
Hon’ble Supreme Court while dealing the case of Siddharam Satlingappa Mhetre9 held certain conditions
imposed by High Court to be not required & contrary to provisions of anticipatory bail. An accused is free on bail
as long as the same is not cancelled. The High Court or Court of Session may direct that any person who has been
released on bail to be arrested and commit him to custody on an application moved by the complainant or the
prosecution. In Gurbaksh Singh Sibbia v. State of Punjab10 , the Hon’ble Supreme Court held that “The
distinction between an ordinary order of bail and an order of anticipatory bail is that where the former is granted
after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest
and is, therefore, effective at the very moment of arrest”. No Regular Bail shall be granted When Interim
Anticipatory Bail Is Granted By Higher Courts And Matter Is Pending: Recently, Hon’ble Supreme Court, in
Rukmani mahato vs. state of jharkhand (S.L.P Criminal no.2411 of 2016 dt.03-08-2017) has directed Trial Courts
to not grant regular bail to an accused, if he/she has already obtained an interim anticipatory bail by a superior
Court and the matter is still pending before the higher Court.

Q: ) Discuss the special power of High Court regarding bail.

 A: Narcotic Drugs and Psychotropic Substances Act (NDPS) is a special enactment that was enacted
for making stringent provisions to control and regulate operations relating to narcotic drugs and
psychotropic substances. Section 37 of the NDPS Act limits the scope and applicability of the
provisions of bail under the Code. Therefore, the power of the High court to grant bail under section
439 of the Code is subject to limitations under 37 of the NDPS Act. In case of inconsistency between
the two provisions, the provisions of the NDPS Act prevail.
 Limitations on granting bail as specified in section 37 of the NDPS Act come into question only when
questions with respect to granting of bail arise on merits.
 Similarly, the power of the High Court to grant bail is curtailed in case of offense committed under
the Terrorist and Disruptive Activities Prevention Act (TADA) as the latter is a special enactment.
Powers of the High Court or Court of Session in granting bail (section 439 of the Code of Criminal Procedure,
1973): According to Section 439(1) of the Code of Criminal Procedure, a High Court or Court of Session may
direct,— (a) That any person accused of an offence and in custody be released on bail, and if the offence is of the
nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the
purposes mentioned in that sub-section; b) That any condition imposed by a Magistrate when releasing any
person on bail be set aside or modified. However, the High Court or the Court of Sessions shall, before granting
bail to a person who is accused of an offence which is triable exclusively by the Court of Sessions or which,
though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the public
prosecutor unless it is, for reasons to be recorded in writing of opinion that it is not practicable to give such
notice. As per Section 439(2) of the Code of Criminal Procedure, a High Court or Court of Sessions may direct
that any person who has been released on bail under Chapter XXXIII (i.e., relating to bail) be arrested and
commit him to custody. The powers of the High Court in granting bail are very wide; even so where the offence is
non-bailable, various considerations will have to be taken into account before bail is granted in case of non-
bailable offence. Under Section 439(1) of the Code, the High Court can only release the accused in cases pending
anywhere in the State on bail or reduce the amount of bail, but cannot order the arrest or commitment to custody
of any person who has been released on bail by the lower Court but it can order to arrest the person who had been
released on bail under Section 439(2) of the Code. In a recent judgment, Hon’ble Supreme Court has held that
there are no restrictions on the High Court or Sessions Court to entertain an application for bail, provided,
accused is in custody. The judgment has put an to end the decades old practice of first filing a regular Bail
Application before a Magistrate having jurisdiction, and get it rejected for the purpose of approaching the
Sessions Court or High Court for bail. Cancellation of Bail: The Code of Criminal Procedure makes clear
provisions for cancellation of bail and taking accused back in custody. Section 437(5) states that any court which
has released a person on bail under sub-section (1) or sub-s. (2) of s. 437, may, if it considers it necessary so to
do, direct that such person be arrested and commit him to custody. Similarly s. 439 confers on the High Court and
the Court of Session power to cancel bail. Section 439(2) The Code of Criminal Procedure makes clear provisions
for cancellation of bail and taking accused back in custody. The power of cancellation of bail can be resorted to
broadly in the following two situations: (i) On merits of a case mainly on the ground of the order granting bail
being perverse, or passed without due application of mind or in violation of any substantive or procedural law;
and (ii) On the ground of misuse of liberty after the grant of bail or other supervening circumstances. Bail in the
first type of cases can be cancelled by superior courts only, whereas in the second category of cases bail can be
cancelled by the very court which may have granted bail. Section 437(5) provides for the cancellation of bail by a
court other than a High Court or a Sessions Court. Meaning thereby it confers power of cancellation on the
Magistrate court. It states that a court other than High court or Sessions Court, may, if it considers necessary to do
so, direct that a person released on bail by it be arrested and committed to custody. Cancellation of bail- certain
grounds: The grounds for cancellation of bail under ss. 437(5) and 439(2) are identical, namely, bail granted
under S.437(1) or (2) or s.439(1) can be cancelled where the accused (1) misuses his liberty by indulging in
similar criminal activity, (2) interferes with the course of investigation, (3) attempts to tamper with evidence of
witnesses, (4) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (5)
attempts to flee to another country, (6) attempts to make himself scarce by going underground or becoming
unavailable to the investigating agency, (7) attempts to place himself beyond the reach of his surety, etc. These
grounds are illustrative and not exhaustive. Section 439(2) confers powers on the High Court and the Sessions
Court to direct re-arrest of the accused who might have been released on bail by any court and commit him to
custody. A comparison of s. 439(2) and s. 437(5) makes it clear that the powers of cancellation of bail vested in
the High Court and the Sessions Court are very wide vis--vis the powers of the Magistrate court.
The historical context of the bail provision has been elaborately and clearly explained in a decision delivered
in Nikesh Tara Chand Shah v. Union of India (2018) dating back to the days of the Magna Carta. It was noted in
that decision that bail should not be withheld as a punishment. This assertion was supported by the case
of Gurbaksh Singh Sibbia v. the State of Punjab (1980). A reference to Emperor v. H.L. Hutchinson (1931) was
also made, in which it was stated that bail is the rule and refusal is the exception. The provision for bail is
therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to
colonial days.
Although bail is a rule and jail is an exception, the accused who has committed grave, serious, and heinous
offences falls under the exception rather than the rule. The court is not required to determine whether the accused
is guilty or not while considering a bail application. It is sufficient if adequate grounds are established to connect
him to the offences
In Public Prosecutor v. George Williams (1951), the Madras High Court listed five instances where a person
granted bail may have the bail cancelled and be recommitted to jail:
1. Committing the same offence for which they are facing charges or have already been found guilty
while free on bail, proving they are completely unfit to be out on bail.
2. If he obstructs the investigation, as he will if he prevents a search for the corpus delicti or other
incriminating evidence in locations under his control while out on bail.
3. If he tampers with the evidence by coercing prosecution witnesses, altering the crime scene to erase
signs of the crime, etc.
4. If he flees the country, goes underground, or goes beyond the control of his sureties; and
5. If he engages in acts of violence against law enforcement, witnesses for the prosecution, and those
who have or are attempting to bring charges against him.

Q: When a Bond and Bail Bond will be declared cancelled from the court?

A bail bond is a written document signed by the accused or his friends or family (known as surety) to assure
that the accused will be present before the court at the stipulated time and date, as specified by the court. The
bail amount is determined by the court, which is based on the gravity of the offence, and the amount is
forfeited if the accused does not appear before the court on the stipulated trial date. A surety is a person who
indemnifies or ensures the presence of the accused or offender in court on the date specified by the court. The
surety pays on behalf of the offender for the purpose of a bail bond when the offender is deemed incapable of
furnishing his personal bond. As per Section 440 of the Code, the amount of bond fixed by the court should
be proportionate to the offence and should not be excessive. It is to be noted that this Section empowers the
sessions courts and the High Courts to instruct the magistrate or the police officer to reduce the bail bond
amount if deemed excessive. As per Section 442, the accused person will be released immediately once the
execution of the bond is completed, and if he is in jail, the court shall issue an order of release to the officer
in charge of the jail.
When is a bond required
A bail bond is required for the purpose of completing the bail procedure. In a situation wherein the court
determines the amount of the bail and the accused is deemed incapable of paying such an amount by
themselves, in such a scenario, the accused can seek the help of a bail bond agent or bondsman. The next
stage here is based on the appearance or non-appearance of the accused before the court on the stipulated
date. There can be two possible outcomes here:
Appearance of defendant
As per the conclusion or outcome of the court case, the dissolution of the bail bond is carried out, and the
collateral is returned to the defendant or person who posted the same.
Non-appearance
In a scenario wherein the accused fails to appear before the court on the court-mandated date, the bail bond is
deemed to be forfeited and the court demands payment of the bond amount. The accused will be allowed to
show cause upon failure of appearance. In case the sufficient cause is not shown and the penalty is not paid,
the court proceeds to recover the same as if such penalty were a fine imposed by it under the Code.

Forfeiture of bond and conditions leading to it

A particular court before it advances action as per Section 446 of the Code to recover the penalty has to be
satisfied regarding the forfeiture of the bond. It is paramount that forfeiture must have been “proved” in due
satisfaction of the court. Therefore, satisfactory proof pertaining to the forfeiture of a bond is essential with
regard to the commencement of proceedings under Section 446 of the Code. Such proof must initiate the
commencement of proceedings under Section 446 of the Code and without the same, proceedings under
Section 446 of the Code cannot be set forth. The following steps can be identified leading up to the
invocation of Section 446.
 An accused was set off on bail under the provisions of the Code.
 The bail bond was set on a court-mandated amount to ensure the appearance of the accused on a
specified date.
 On the stipulated date, the accused fails to appear before the court.
 It is proved to the satisfaction of the court that the bond for appearance or production of property or
any other bond has been forfeited.
 Initiation of proceedings on forfeiture of the bond.
What does Section 446 Code say about proceeding when a bond has been forfeited
As per Section 446 of the Code, when it is established that the bond has been forfeited, the court can call
upon any person who is bound by that bond to pay the penalty or show cause why it should not be paid. If a
sufficient cause for forfeiting is not proved or shown and the penalty therein is also not paid, the court can
recover the same as if it was a fine imposed by a court under this Code as per Section 421. The court has the
discretion to remit a specified portion of the penalty. When the accused is not present on the stipulated date
as per the bond, then the accused has to showcase a good cause to justify his absence. The court will also
record the grounds of proof with regard to the forfeiture of the bond. The following aspects can be derived
based on Section 446:
1. Section 446 of the Code lays down the procedure regarding the forfeiture of bonds. It basically refers
to two classes of bonds:
 Any bond executed as per this Code for appearance or for production of property; and
 Any other bond under the ambit of this Code.
Both would stand on the same ground with respect to forfeiture.
2. The proviso under sub-section (2) says that when the penalty is unpaid and cannot be recovered in the
manner as laid down in Section 421 of the Code, the person who is bound as the surety will be
deemed liable, by order of the court ordering the recovery of the penalty, to imprisonment in civil jail
for a term up to six months.
3. As per sub-section (3), the Court can remit any part of the penalty and enforce payment with respect
to that particular part only.
4. As per sub-section (4), in case the surety passes away before the forfeiture of bond i.e., conditions of
the bond have not been violated till that very point, in that case, the surety’s property can be absolved
 from all liability with regard to the bond. But in a scenario wherein the surety dies after the forfeiture
of the bond, the property of the surety can be deemed liable for penalty.
5. As per sub-section (5), a certified copy of the judgment, which represents that the person who
furnished security has been deemed guilty and convicted for breach of conditions of his/her bond can
be used in the form of evidence against such person. Hence, in a situation wherein a person is
convicted for breach of bond under the ambit of Sections 106, 117, 360 or 448 of the Code, a certified
copy of the judgment would be used as evidence during the proceedings against the surety and shall
act in a way it presumes such person’s liability unless proven otherwise.
Cancellation of Bond
Section 446A is concerned with the cancellation of the bond. The provisions of this Section do not influence
the provisions pertaining to the forfeiture of the bond. The Hon’ble High Court of Rajasthan in the case
of Johny Wilson vs State Of Rajasthan held that “It is true that forfeiture of the bail-bond does not amount to
cancellation of bail. The legislature has not used the word “cancellation”. When a bond for the purpose of
securing the appearance of a person in a case before the court is forfeited for breach of an expressly
stipulated condition, then in such a scenario, the bond executed by the accused and sureties shall stand
cancelled; and
Thereafter, the accused is not released on his personal bond in that case.
The proviso with respect to this section states that an accused can be released after the execution of a fresh
personal bond for such sum of money and bond by one or more of such sureties as the police officer or the
court deems fit.

Judicial pronouncements
These are some of the significant judgments concerning Section 446. They are discussed as follows:
Mohammed Kunju v. State of Karnataka,
In this case, the court considered various factors with respect to the liability of the surety under the ambit of
Section 446 and made the following observations:
(i) Each surety is liable for a penalty in the forfeiture of the bond. Allotment of half a share is not legal;
(ii) Forfeiture of a bond would entail the penalty against each surety for the amount which he has undertaken
in the bond executed by him. Both the sureties are not supposed to share the amount by half, as each surety is
made liable to pay.

Q:
A: Complaint to Magistrate under CrPC
The term “complaint” refers to any assertion made before a magistrate, either orally or in writing, according
to the code of criminal procedure. It is done without a police report but with the intention of initiating action
under this Code against some person, known or unknown, who has committed an offence.
 A complaint means an allegation, i.e., an accusation against a person.
 Section 2(d) of Criminal Procedure Code, 1973 (CrPC) defines a complaint as an allegation made
orally or in writing to a Magistrate, with a view to his taking action under this Code, that some
person, whether known or unknown, has committed an offence, but does not include a police report.
o Explanation - A report made by a police officer in a case which discloses, after investigation,
the commission of a non-cognizable offence shall be deemed to be a complaint; and the police
officer by whom such report is made shall be deemed to be the complainant.
Necessary Conditions for a Complaint
 Following are the necessary conditions for a complaint:
o There must be some allegation against a known or unknown person.
o Such an allegation must be made verbally or in writing.
o It must be made before a Magistrate.
o It must be made with the object that the Magistrate should take action.
Examination of a Complainant
  According to Section 200 of CrPC a Magistrate, after taking cognizance of an offence, examines
both the complainant as well as the witnesses on oath.
 The objectives of such examination are:
o The examination is done to determine as to whether there is a prima facie case against the
accused in respect of the offence complained or not.
o The aim is to address or deter the problem of dealing with a complaint that is untrue,
vexatious, or meant solely to harass a person.
o The major role of these provisions is to protect the accused against the unwarranted
complaints.
 The provision also stipulates that the information gathered from such an investigation must be
summarized in written form, including the signatures of the complainant, any witnesses, and the
Magistrate.
 This section also provides some conditions in which a Magistrate is not supposed to examine the
complainant and the witnesses which are:
1.
i. If a public servant or a court has made a complaint, or
ii. If a Magistrate has transferred the case to some other competent Magistrate for inquiry or trial
as per Section 192 of CrPC, 1973.
 It is important to note that when one magistrate forwards a case to another magistrate under Section
192 of the CrPC after scrutinizing the complainant and the witnesses, the latter is not required to re-
examine them.
Magistrate Not Competent to take Cognizance (Section 201)
 In the event where a complaint is made to the magistrate who is not competent to take the cognizance
of the offence, he will:
1.
i. If it is a written complaint, the magistrate will forward the complaint to the respective court.
ii. If it is oral complaint, the complainant will be guided to go to the proper court.
Postponement of Issue of Process (Section 202)
 As per Section 202 (1), a Magistrate may postpone an issue of process to compel the appearance of
the person complained against or order the police officer to investigate for deciding whether there is a
satisfactory reason for proceedings.
 Instead of ordering an investigation by the police, the Magistrate himself can also inquire into the
case or order another person (whom the Magistrate thinks fit) to investigate. This can be done in the
following conditions:
o On receiving a complaint for which the Magistrate has jurisdiction over the case, or
o Where the Magistrate has transferred the case to another Magistrate as per Section 192, or
o Where the accused is living in an area in which the Magistrate is not authorized to exercise his
jurisdiction.
 This section further provides that the Magistrate cannot order for an investigation in the following
cases:
o Where the offence is specially triable by the Sessions Court, or
o Unless he has examined the complainant and the witnesses on oath as per Section 200.
 Section 202(2) provides that if a Magistrate finds that the offence is specially triable by the Sessions
Court, he can summon the complainant along with all the witnesses to take the evidence on oath.
 Section 202(3) limits the power of the person excluding a police officer investigating in that he is not
permitted to take someone into custody without a warrant.
Dismissal of a Complaint & Its Effect
 Section 203 of CrPC provides that after taking the statements of the complainants and all the
witnesses, and the outcome of the investigation as per Section 202, into consideration, if a Magistrate
 finds that there is no satisfactory reason for proceedings then he is authorized to dismiss the
complaint by recording appropriate reasons for doing so.
Grounds to Challenge the Complaint
 If the court has issued the process, then one cannot file any recall application under Section 203 of
CrPC.
o In Adalat Prasad v. Rooplal Jindal (2004), the SC held that if the Magistrate did not dismiss
the complaint and issued process, then the accused cannot approach the court under Section
203 CrPC for dismissal of the complaint because the stage of section 203 has already over.
o In Bholu Ram v. State of Punjab (2008), the SC held that one cannot challenge the
complaint under section 203 of the CrPC. The court does not hear the accused at the stage of
Section 203.
o In Iris Computers Ltd. v. Askari Infotech (P) Ltd. (2015), the SC has held that the in
absence of the review power, one can challenge the complaint under Section 482 CrPC.
Landmark Judgements under Section 203 of CrPC
In Chandra Deo Singh vs Prokash Chandra Bose, the Hon’ble Supreme Court overturned the Magistrate’s
decision to dismiss a complaint in the case in question on the grounds that the Magistrate must be satisfied
that there is sufficient justification for the continuation of the proceeding, not just that there is sufficient
justification for conviction in the complaint that was submitted to the court.
In the case of Manharibhai Muljibhai Kakadia & Anr vs. Shaileshbhai Mohanbhai Patel & Ors. (2012),
the Supreme Court ruled that when a complaint is dismissed by a Magistrate under Section 203 of the CrPC,
the accused or suspected persons have the legal right to be heard in a revision petition filed by the
complainant before the High Court or Sessions Judge.
If the revisional court overrules the Magistrate’s order and restores the complaint for fresh consideration, the
accused have no right to participate in the proceedings until the Magistrate’s decision on the issuing process.
The Supreme Court overruled judgments of High Courts that held otherwise, confirming that the accused’s
right to be heard in such revision petitions is not applicable until the Magistrate’s consideration for the
issuing process.

Q: Can a second complaint lie after the dismissal of the first complaint? Case laws of SC

Under the Criminal Procedure Code (CrPC) of India, the issue of whether a second complaint can be
entertained after the dismissal of the first complaint has been addressed by the Supreme Court in several
cases. Generally, the principle is that a second complaint is not maintainable if it is based on the same facts
and circumstances as the first complaint that was dismissed. However, there are exceptions to this rule under
certain circumstances.
Key Supreme Court Judgments on Second Complaints
1. Pramatha Nath Talukdar v. Saroj Ranjan Sarkar (1962) 1 SCR 297
o Principle: The Supreme Court held that a second complaint on the same facts is generally not
maintainable if the first complaint has been dismissed. However, there are exceptions, such as
if there is a manifest error or if there are new facts or circumstances that could not be brought
to the notice of the court earlier.
o Key Quote: "An order of dismissal under Section 203, CrPC, is no bar to the entertainment of
a second complaint on the same facts but it will be entertained only in exceptional
circumstances."
2. Mahesh Chand v. B. Janardhan Reddy (2003) 1 SCC 734
o Principle: The Court reiterated that a second complaint is maintainable if there are special
circumstances like new facts, manifest error, or miscarriage of justice.
o Key Quote: "The dismissal of a complaint under Section 203, CrPC, is no bar to the filing of
a fresh complaint if there are special circumstances."
3. Hiralal & Ors. v. State of Uttar Pradesh (2009) 11 SCC 89
 o Principle: The Supreme Court emphasized that the second complaint should not be
encouraged unless there is a strong case for exceptional circumstances, such as new facts or
miscarriage of justice.
o Key Quote: "There can be no second FIR in respect of the same offence or occurrence or
same transaction giving rise to one or more offences."
4. Jatinder Singh v. Ranjit Kaur (2001) 9 SCC 703
o Principle: The Court clarified that a second complaint can be entertained if the first complaint
was dismissed without consideration of the merits or there was a manifest error or other such
exceptional grounds.
o Key Quote: "A second complaint on the same facts cannot be entertained unless there are
exceptional circumstances such as a manifest error in the earlier order or new facts which
could not, with reasonable diligence, have been brought on record in the previous
proceedings."
Summary
A second complaint under the CrPC can lie after the dismissal of the first complaint, but only in exceptional
circumstances such as the discovery of new facts, a manifest error in the previous proceedings, or a
miscarriage of justice. The Supreme Court has consistently held that these exceptional circumstances must be
clearly demonstrated to justify the filing of a second complaint.

Q: )When a complainant may withdraw his complaint?

A: Withdrawal of the complaint from the proceedings

Under Section 257, if a complainant wants to withdraw a complaint, he can do so. It can be
done before the final order is pronounced. If the complainant satisfies the Magistrate that
there are sufficient grounds to not proceed against the accused, and, if the magistrate is
satisfied by the justification of the complainant he may allow the complainant to withdraw
his complaint and acquit the accused. The accused, once acquitted, cannot be tried for the
same offence again, according to Section 300 of CrPC. Hence, the acquittal of the accused
under Section 257 would put an end to the proceedings for the offence he has been acquitted.
Section 257 is only applicable to summon cases.
1. Under Section 257, all complaints can be withdrawn which are triable as summon
cases
2. For the withdrawal of the complaint, under Section 257, consent of the court is
mandatory.
3. Once the complaint is withdrawn by the complainant it will not directly result in
stopping prosecution of the accused. The Court needs to pass an order of absolution,
i.e. order of releasing the accused from the offences.
4. For the purpose of the withdrawal of the complaint, the consent of the accused is not
necessary.
In Y.P Baiju vs. State of Kerala (2007), the Court observed that Section 257 can only be
employed to withdraw complainants which are related to summoning cases. Section 257 will
not have any application on the cases instituted through the police reports and the cases
instituted under Section 320.
In Thathpadi Venkatalaxmi vs. State of Andhra Pradesh and Anr (1990), the wife reported
cruelty against her husband to the police, thereafter, the police filed the charge sheet. Later,
the wife wanted to withdraw the complaint under Section 257, but the Court did not permit
her to withdraw the complainant, as the charge sheet was filed by the police, making them the
original complainant. It is a fact that the complaint cannot be withdrawn if the charge sheet is
filed by the police already.

Q: ) Which procedure will be maintained when the Magistrate does not convict the accused?[
Procedure if the accused not convicted on plea
Section 254 provides about both prosecution and defence case if the accused not convicted on plea under
section 252 and 253.
Prosecution case
The magistrate will hear the accused and take all the evidence. In the hearing, the prosecution will be given
chance to open its case by putting facts and circumstances which constitute the case and by revealing the
evidence which he relied upon to prove the case. The magistrate on the application of the prosecution, serve
summon to any witness to attend and to produce any document or thing. The magistrate will prepare the
memorandum of the evidence according to section 274. Same as other trials in summon cases also the
magistrate will comply with section 279 i.e., interpretation of evidence to the accused and 280 i.e., recording
of the demeanor of the witnesses.
Hearing of the defence: – (Defence Case)
After the prosecution evidence under 254 and examination of defence under section 313, in the continuance
of this, the court will proceed with the defence hearing under section 254(1). In the hearing of the defence
means accused will be asked for accused say against the prosecution evidence. Failure of hearing of the
accused in any case will amount to the fundamental error in the criminal trial and it can not be cured under
section 465. Evidence produced by the accused will be recorded in the same manner as in case of prosecution
under section 274, 279, 280. After the submission of the evidence of the defence, he will be allowed to
submit his arguments under section 314.
Acquittal or conviction
After recording the evidence under 254 the magistrate will acquit the accused if he finds the accused not
guilty. If the accused is guilty than Magistrate shall proceed according to Section 360 or 325 otherwise,
sentence him according to the law.

Q: ) Discuss the power of Court to convert summons case into warrant cases.
 Power of Court to convert Summons (Section 259)
o If an offence is punishable with imprisonment above six months and the Magistrate is of the
opinion that the procedure of warrant case trial should be adopted instead of summons cases
trial, he may do so for achieving the ends of justice.
o He is also empowered to recall any witness already examined for the purpose of this Section.
a summons case can be converted into a warrant case if a new offence comes out during the trial. According
to Section 259 of the Code of Criminal Procedure (Cr.P.C.), a summons case may be converted into a
warrant case when the trial of the summons case relates to an offence punishable with imprisonment for a
term exceeding six months. The provision states that if it appears to the Magistrate, in the interest of justice,
that the offence should be tried in accordance with the procedure for the trial of warrant cases, the Magistrate
may proceed to re-hear the case in the manner provided by the Cr.P.C. for the trial of warrant cases and may
recall any witness who may have been examined [NARESH KUMAR VS STATE OF UTTARANCHAL]
[State Of Mizoram VS K. Zorammuana (grade-iii Driver E&n Dept)][SUKUMAR MUKHERJEE VS
MALAY KUMAR GANGULY][V. Narayanasamy VS Ajay Chandrakar][Amritpal Singh VS Rahul Ahuja]
[Harishbhai Keshavbhai VS State Of Kerala].

It is important to note that the conversion of a summons case into a warrant case provides the accused with a
better chance to defend themselves [SUKUMAR MUKHERJEE VS MALAY KUMAR GANGULY].
However, the decision to convert a summons case into a warrant case lies with the Magistrate, who must
consider the interests of justice [V. Narayanasamy VS Ajay Chandrakar]. The Magistrate may exercise this
power if it is made evident during the trial, from the statement of witnesses or evidence produced, that an
offence triable as a warrant case is made out [LALIT AGARWAL VS STATE OF U. P. ].

In the Indian legal system, there are two types of cases: summons cases and warrant cases. A summons case
relates to a less serious offence, while a warrant case relates to a more serious offence punishable with death,
imprisonment for life, or imprisonment for a term exceeding two years [Surendrakumar VS State of Kerala].
The trial procedure for a warrant case differs from that of a summons case [Surendrakumar VS State of
Kerala]. Therefore, if a new offence emerges during the trial of a summons case, it may be necessary to
convert it into a warrant case to ensure that the appropriate trial procedure is followed.

In summary, a summons case can be converted into a warrant case if a new offence comes out during the
trial. The decision to convert the case lies with the Magistrate, who must consider the interests of justice.
This conversion allows for the trial to be conducted in accordance with the procedure for warrant cases,
providing the accused with a better chance to defend themselves.

Q: When can search warrant be issued?

Procedure relating to search and seizure
Section 91 states that the Court may issue a summon or the officer in charge may give a written order stating
that the person has to produce the document or anything which is believed to have importance in order to
carry out investigation, inquiry or proceedings. The person who is in possession of that particular document
or thing has to comply with the request and produce it at the time and place prescribed by the summon or
order.
Section 92 states that If the law enforcement agencies including the District Magistrate and the High Court
are of the opinion that a document, parcel or anything which is in the custody of postal or telegraph authority
is essential for the investigation, trial or the proceedings, then the Postal or telegraph authority has to adhere
to the directions given by the court and deliver the document as per the instructions. The Court may allow the
postal or telegraph authority to conduct searches for any document, parcel or item because of which the order
of the Court is pending.
Section 93 prescribes when a search warrant can be issued. First of all, if the Court believes that the person to
whom the summon or order has been addressed, will not bring the document or the thing which is essential to
the proceedings, a warrant can be issued against that person. It can also be issued if the Court does not know
the person who may be having the document. The Court may specify the particular place or part till which
the inspection will extend and the person in charge of the inspection will follow the order of the Court as
given and not extend the limit of inspection. Only the District Magistrate or Chief Judicial Magistrate can
grant the search of a document which is in the custody of postal or telegraph authority.
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Section 94 deals with the search carried out at places that are suspected to contain properties that might be
stolen or might also hold the forged documents. After the inquiry or the information, if a District Magistrate,
Sub-divisional Magistrate or a Magistrate of first-class is of an opinion that a place would have been used for
deposit or sale of stolen property or if it would have been used for the production of objectionable articles as
mentioned and prescribed in this section, he may authorize the Police Officer (above the rank of a constable)
by warrant to enter such place with assistance if required.
The Police have to search the place in the manner specified in the given warrant, taking the possession of
property that could be objectionable or stolen. He has to convey a bout the same to the Magistrate or has to
guard the same until the offender is taken to the Magistrate. He may dispose of the objectionable article in
some safe place and If he finds any person who may be involved in the deposit, sale, or production of the
objectionable article or stolen property, he may take the person in custody and later carry him before the
Magistrate.
Coming to the articles/things which are considered as objectionable as per Section 94 –
 counterfeit coins, currency note or stamps,
 forged documents
 false seals
 Pieces of metals prohibited under the Metal Tokens Act,1889 (1 of 1889), or brought in India as
prohibited pursuant to Section 11 of Customs Act, 1962 (52 of 1962).
 Objects considered as obscene under Section 292 of IPC (45 of 1860)
 Instruments that may be used for the production of the above objectionable articles.
Section 95 gives the power to the Court to declare some publications forfeited. The Court can issue search
warrants for those publications and If the State Government finds that any article, newspaper, document or
book may contain some matter which is punishable under the following sections that
are 124A, 153A, 153B, 292, 293 or 295A of IPC, it can declare every copy of such material to be forfeited to
the Government. The Magistrate can authorize any Police Officer to seize those documents. As per the
warrant, the Police may enter and search the suspected document on any premises. The point to note here is,
the Police Officer appointed for the search, can not be below the rank of Sub-Inspector. The term
“Newspaper” and “Book” have the same meaning as said in the Press and Registration of Books Act, 1867,
and the word “Document” includes any drawing, painting, photograph, or other visible presentations.
Example: In the case of Anand Chintamani Dighe v. State of Maharashtra, the State Government seized a
notice for the forfeiture of the book in all forms entitled Mee Nathuram Godse Bolto ahe (I am Nathuram
Godse speaking) including Gujarati translation for reasons that the publication of the said book will disturb
public tranquillity, encourage disharmony or feelings of enmity, hatred or ill-will among different groups or
communities.
Section 97 is regarding the search of a person whose confinement amounts to an offence. If any District,
Sub-Divisional, or a first-class Magistrate has a reason to believe the same, he may issue a search warrant.
The person to whom the search warrant is addressed has to search the confined person and if he finds the
confined person, he has to take him immediately before the Magistrate for further proceedings. Section
98 covers the aspects involved for the restoration of an abducted woman including a female child under the
age of 18. Section 99 covers the directions for search warrants. The provisions of Sections 38, 70, 72, 74, 77,
78 and 79 are applied to all the search warrants issued.
Forms relating to search warrants and summons
Form number 10 is for the warrant to search after the officer receives a piece of information about the
particular offence, once it is filed. Form number 11 is for the search of any particular place which is the
suspected place of deposit. Under Form number 30, Special Summons is issued for the person who is
accused of committing petty offences. Under form number 33, Summons to witness are executed. These are
the forms relating to search warrants and summons.
In the case of V. S. Kuttan Pillai v. Ramakrishnan, the procedural validity of search warrants was upheld, in
which it was held that a search for the premises occupied by the accused did not in any way force him to
provide evidence against himself and was thus not in violation of Article 20(3) of the Indian Constitution.
In the case of Ramesh vs Laxmi Bai, It was held that a son in his father’s custody should not be held or
considered as unlawful detention, and, accordingly, no search warrant could be issued for the same.

Q: ) Explain the procedure of search by a Police Officer

The Criminal Procedure Code, 1973 is a procedural law consolidating the law relating to criminal procedure.
The law prescribes a detailed format as to how the criminal law comes into motion.
Usually, under CrPC, a police officer or an investigating officer has the power to search. The power to search
comes under two heads:
1. Search with warrant
2. Search without warrant
This CrPC law note explains the procedure of search by a police officer in India with or without a search
warrant.

Search With Warrant

Search warrants are written orders issued by a magistrate authorising the search of any place. But before
issuing a search warrant, the court:
 must have reason to believe that the person to whom summons have been issued under section 91 of
CrPC would not produce documents or things, and
 there must be justifiable grounds for the court to form such an opinion.
When the court satisfies itself with these two points, then only it issues a search warrant.
Sections 93 to 98 of CrPC specify the circumstances under which the court may issue a search warrant.
Section 93: Search for Documents or Things Necessary for Investigation, Trial etc.
Section 93 of CrPC provides that where any document or thing is required by the court which is necessary
for the investigation or other proceedings, the court may issue a search warrant for the same if:
 Despite having been summoned under sections 91 or 92, the person in whose possession the
document or thing is placed refuses to produce it.
 Where the court does not know who has possession of such thing or documents.
 Where the court considers that purpose will only be served by general inspection.
Note: If the thing to be searched is in the custody of the postal or telegraph authority, only District Magistrate
or Chief Judicial Magistrate can issue a search warrant.

Section 94: Search for Stolen Property, Forged Documents, etc.

Where any District Magistrate, Sub-divisional District Magistrate or Magistrate of the first class has reason
to believe that any place is used for the sale or deposit of any stolen property or other objectionable articles
given under section 94(2) of CrPC, then he may authorise any police officer by way of the warrant to enter
such place and conduct a search therein.
Section 95: Search for Any Seditious or Obscene Document
Under section 95 of CrPC, the Magistrate may issue a search warrant authorising the police officer to search
any premises where any newspaper or book, or any document, whose publication is punishable by section
124A, 153A, 153B, or section 292 or section 293 or 295A of the Indian Penal Code and such matter is
declared by the state government to be forfeited.
Section 97: Search for Persons Wrongfully Confined
Section 97 of CrPC empowers the District Magistrate, Sub-divisional Magistrate and Magistrate of the first
class to issue a search warrant:
 in case he has reason to believe that any person is confined,
 and such confinement amounts to an offence.
Section 98: Power to Compel Restoration of Abducted Females
Section 98 of CrPC empowers the District Magistrate, Sub-divisional Magistrate, and Magistrate of first-
class to make an order for immediate restoration of a woman or a female child to her lawful guardian and to
compel the compliance of the order by using such force as may be necessary. An order under this section
may be made only when:
 There is a complaint on oath;
 The complaint is about the abduction or unlawful detention of a woman or a female child under 18
years;
 Such abduction or detention is for any unlawful purpose.
Search Without a Warrant
The Criminal Procedure Code is exhaustive law. It also deals with the situation where there is no time to get
a search warrant from a Magistrate. In such a situation where the police officer has reasonable grounds to
believe that any delay will be fatal to the investigation, he can search without having a search warrant.
Following are the sections dealing with the search without a warrant:
Section 165: Search by a Police Officer
As per section 165 of CrPC, when an officer in charge of a police station or an investigating officer has
reasonable grounds for believing:
 that anything necessary for investigation of any offence which he is authorised to investigate,
 and that the search is necessary for investigation and such search is within his local jurisdiction, and
any undue delay will be fatal for investigation,
the police officer can search without a warrant.
Furthermore, before the search, it is the police officer’s responsibility to document in writing the grounds of
his belief, naming the object to be searched.
Section 166: Search in Other Police Station’s Jurisdiction
This situation arises when a search is done outside the local jurisdiction. For example, when the police of
Varanasi want to search in Lucknow, they have to comply with section 166.
It says when a search has to be conducted in the jurisdiction of another police station, whether, in the same or
a different district, the police officer making the investigation is required under section 166(1) to ask the
officer in charge of another police station in whose jurisdiction the search is to be made.
However, when the police officer has reason to believe that any delay will cause concealment or hampering
of evidence, according to section 166(3) of the Code of Criminal Procedure, the investigating officer may
search himself. As soon as possible, the police officer searching shall send the notice of the search, along
with the list prepared according to section 100 of the CrPC, to the officer in charge of the police station
within the jurisdiction of which the search took place, and to the Magistrate empowered to take cognisance of
the offence.
When the police officer searches under section 165 or section 166 of the Code of Criminal Procedure, the
police officer will make a list under section 100 (clause 5) of CrPC. The witnesses must sign it. Furthermore,
a copy shall be delivered to the owner or occupier of the place searched.
Q: Discuss the summary procedure of trial of offences

 Ans: State of Bihar v. Deokaran Nenshi and Others (1972): In this case, the Supreme
Court of India held that the essence lies in providing a speedy and inexpensive trial to
the accused. It emphasized that summary cases should not be turned into mini-trials by
allowing unnecessary adjournments or permitting extensive cross-examinations.
 Gopi Nath Ghosh v. State of West Bengal (2015): The Supreme Court held that the magistrate
conducting this trial should provide reasons for the conviction in writing. The reasons should demonstrate
that the magistrate has applied their mind to the evidence presented and that the conviction is based on a
proper evaluation of the evidence
Summary Trial
 A ‘summary trial’ implies speedy disposal of a suit. It is a type of trial in which matters are
resolved quickly, the procedure is shortened, and the proceedings are recorded in a speedy manner.
o In a summary trial, all the cases should be tried by the summons procedure.
 The object of summary trial is to have a record which is sufficient for the purpose of justice, and yet,
not so long as to impede speedy disposal of the case.
 It is provided under Chapter XXI of CrPC and is provided under Section 260 to 265.
Power to Try Summarily
 According to Section 260(1) notwithstanding anything contained in the Code:
o Any Chief judicial Magistrate
o Any Metropolitan Magistrate
o Any Magistrate of the First Class specially empowered in this behalf by the High Court, may,
if he thinks fit, try in a summary way all or any of the offences:
o Offences not punishable with death, imprisonment for life or imprisonment for a term
exceeding two years;
 o Theft, under Section 379, Section 380 or Section 381 of the Indian Penal Code where the
value of the property stolen does not exceed two thousand rupees;
o Receiving or retaining stolen property, under Section 411 of the Indian Penal Code where the
value of the property does not exceed two thousand rupees;
o Assisting in the concealment or disposal of stolen property, under Section 414 of the Indian
Penal Code where the value of such property does not exceed two thousand rupees;
o Offences under Sections 454 and 456 of the Indian Penal Code;
o Insult with intent to provoke a breach of the peace, under Section 504, and criminal
intimidation punishable with imprisonment for a term which may extend to two years, or with
fine, or with both, under Section 506 of the Indian Penal Code;
o Abetment of any of the foregoing offences;
o An attempt to commit any of the foregoing offences, when such attempt is an offence;
o Any offence constituted by an act in respect of which a complaint may be made under Section
20 of the Cattle-trespass Act, 1871.
 Section 261 empowers the Magistrate of the Second class who has been invested with the powers
by the High Court to try summarily any offence which is punishable only with fine or
with imprisonment for a term not exceeding six months with or without fine.
Procedure/Record in Summary Trial
In summary trials, the procedure specified for the trial of summons-case is to be followed Section 262(1),
subject to the following three qualifications:
 As per Section 262(2) no sentence of imprisonment for more than 3 months can be passed in any
conviction under Chapter XXI.
 As per Section 264 of the Code in every case tried summarily in which the accused does not plead
guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief
statement of the reasons for the finding.
 As per Section 265 of the Code every such record and judgment shall be written in the language of
the court and signed by the Magistrate.

Q: What steps can a Magistrate take for releasing of a minor girl recovered on the strength of
a search warrant?

A: When a minor girl is recovered on the strength of a search warrant, a Magistrate must take
several steps to ensure her safety, well-being, and legal protection. The process is governed
by various sections of the Criminal Procedure Code (CrPC) and other relevant laws, such as
the Juvenile Justice (Care and Protection of Children) Act, 2015. Here are the steps a
Magistrate can take:
Steps for Releasing a Minor Girl Recovered on a Search Warrant
1. Immediate Safety and Medical Examination
o Medical Examination: Ensure the minor girl undergoes a medical examination
to ascertain her physical and mental condition.
o Immediate Shelter: Provide temporary shelter in a safe place, such as a
government-run or recognized Child Care Institution (CCI) or a shelter home.
2. Production Before the Child Welfare Committee (CWC)
o Timely Presentation: As per Section 31 of the Juvenile Justice Act, the minor
girl must be produced before the Child Welfare Committee within 24 hours of
recovery.
 o CWC Proceedings: The CWC will assess the situation and determine the best
course of action for the child's care, protection, and rehabilitation.
3. Recording of Statement
o Statement Recording: Record the statement of the minor girl under Section 164
of the CrPC in the presence of a Magistrate. This statement should be taken in a
child-friendly environment, ensuring the minor's comfort and security.
4. Interim Custody
o Interim Custody Orders: The Magistrate or the CWC can issue orders
regarding the interim custody of the minor girl. This could involve placing her in
a safe home or returning her to her parents or guardians if it is deemed safe and
in her best interest.
5. Assessment of Family Situation
o Home Study Report: Conduct a home study report to assess the family
environment if the minor girl is to be returned to her family. The report should
ensure that returning home is in the best interest of the child.
o Counseling and Support: Provide counseling and support services to the minor
girl and her family to address any trauma and to facilitate reintegration.
6. Long-Term Rehabilitation and Care
o Care Plan: Develop a comprehensive care plan for the minor girl, addressing
her educational, psychological, and social needs.
o Monitoring and Follow-Up: Ensure regular monitoring and follow-up by the
CWC or designated authorities to track the minor girl's progress and well-being.
7. Legal Proceedings
o Protection from Further Harm: Take measures to protect the minor girl from
any potential harm or threat from the accused persons.
o Legal Representation: Ensure the minor girl has legal representation and
support throughout any legal proceedings related to her recovery and protection.
Relevant Sections and Acts
1. Section 97 of the CrPC
o Provision: Provides for the search for persons wrongfully confined and their
immediate production before the Magistrate.
2. Juvenile Justice (Care and Protection of Children) Act, 2015
o Section 31: Production before the Child Welfare Committee.
o Section 33: Inquiry into the child's situation and decision on care, protection,
and rehabilitation.
o Section 37: Orders regarding the care, protection, and rehabilitation of the child.
3. Protection of Children from Sexual Offences (POCSO) Act, 2012
o Section 24: Guidelines for recording the statement of a child.
o Section 25: Medical examination of the child.
Summary
When a minor girl is recovered on the strength of a search warrant, the Magistrate must
ensure her immediate safety, produce her before the Child Welfare Committee, record her
statement, and make interim custody arrangements. A comprehensive assessment of her
family situation, long-term rehabilitation, and continuous monitoring are essential to ensure
her well-being and protection. The process should be guided by the provisions of the CrPC,
the Juvenile Justice Act, and the POCSO Act to ensure that the minor girl receives the
necessary care and protection.

Q: Discuss the provisions of (Appeal), Revision and Reference under the CrPC, 1973.

A: Difference between an Appeal, Reference and Revision

APPEAL REFERENCE REVISION

It is defined under It is defined under

It is defined under Chapter
Chapter XXIX of the Chapter XXX of the
XXX of the Criminal
Criminal Procedure Criminal Procedure
Procedure Code.
Code. Code.

It is defined from It is defined from

It is defined from Section
Section 372- 394 of Section 397-402 of the
395-396 of the Criminal
the Criminal Criminal Procedure
Procedure Code .
Procedure Code . Code .

An appeal is made to Revision is made to

Reference is made to the
the higher court on both higher and lower
higher court on the points
the points of the fact court on the already
of the law.
and laws. adjudicated matters.

The revision begins

The Appeal begins on The Reference occurs under the final
the determination of while the case is still judgment or final order
the case. pending in the court. or final decision of the
court.

Revision is to review,
Reference is to consult the
An appeal or petition change or amend any
High Court on insolvency
is to be filed against grammatical, clerical
or invalid law, act,
the decision passed by or arithmetic error by a
regulation or ordinance
the lower court. trial court or high
related to the case at hand.
court.

In some cases, an
The revision can be
appeal can be filed Reference is made by the
initiated by the trial
with leave of the court trial court to the High
court suo moto or the
by an aggrieved Court.
High Court.
person or accused.
Doc starred by CJSM

Q: DIFFERENCES

A:
BAILABLE OFFENCES NON-BAILABLE OFFENCES
Bail is a matter of right. Bail is a matter of Court's discretion.
Section 436 of the CrPC lays down the provisions Section 437 of the CrPC lays down the provisions
for bail in bailable offences for bail in non-bailable offences
Bailable Offences are considered less serious in Non-bailable offences are more serious in nature
nature.
Generally punishable with imprisonment for less Generally punishable with imprisonment for three years or more
than three years

Landmark cases on Bailable and Non-bailable offences

1. Arnesh Kumar v. State of Bihar: In this case, the Supreme Court held that police officers cannot
automatically arrest a person accused of a non-bailable offence without first conducting a preliminary
investigation and forming an opinion that the arrest is necessary. The court also held that a person
accused of a non-bailable offence is entitled to bail as a matter of right, and the police officers should
not automatically oppose bail in such cases.
2. State of Rajasthan v. Balchand: In this case, the Supreme Court held that the right to bail is a
fundamental right guaranteed under Article 21 of the Indian Constitution, and it cannot be denied
except in the interest of justice or to prevent the person from fleeing the jurisdiction of the court.
Basis Bailable offences Non-bailable offences
In bailable offences, the gravity of the
In non-bailable offences, the gravity
Gravity offence is lower as compared to non-
of the offence is higher.
bailable offences.
In bailable offences generally, the
quantum of sentence is below or up to
three years. Although there are Sentences are higher in the case of
exceptions in respect of this rule. For non-bailable offences as they are
Punishment example, the offence of kidnapping punishable with death, imprisonment
under Section 363 of the IPC is for life, or imprisonment which may
bailable but is punishable by exceed three years or seven years.
imprisonment for seven years and a
fine.
In non-bailable offences, bail is not a
In bailable offences, bail can be matter of right, but rather it is a
Bail
granted as a matter of right. matter of the discretion of the court of
law.
Power to In case of bailable offences, either the In the case of non-bailable offences,
grant bail police officer or the court can grant mostly the accused get bail through a
bail. court of law. Yet there is a provision
under Section 437 subsection 4 that
empowers the police officer to grant
bail while recording reasons in
writing. Though, in reality, police
 officers do not grant bail.
Refusal of bail in case of a bailable
There is no offence committed if the
offence shall amount to wrongful
Offence officer or the court does not grant bail
confinement under Section 342 of
to the accused.
IPC.
Criminal Breach of Trust(406
Kidnapping (363 IPC), Stalking
IPC), Theft(379 IPC), Snatching
(354D), Dishonest Misappropriation
Examples (379A IPC), Rape (376
of Movable Property (404
IPC), Murder(302 IPC) and Culpable
IPC) and Cheating (417 IPC) etc.
Homicide(304 IPC) etc.

B
The Difference Between Summon Cases and Warrant Cases
Nature of Offence
The primary and most significant difference between summon cases and warrant cases lies in the nature
of the offence. Summon cases are generally reserved for minor or petty offences, such as traffic
violations, minor breaches of the law or small-scale disputes.
Warrant cases, on the other hand, encompass more serious offences, including felonies and crimes that
carry substantial penalties, such as murder, robbery and sexual assault.
Initiation of Proceedings
In summon cases, legal proceedings are initiated by the filing of a complaint by the aggrieved party or a
law enforcement officer. The court then issues a summons to the accused, compelling them to appear in
court on a specified date.
In warrant cases, the proceedings often commence with the filing of a First Information Report (FIR) by
the police or a complaint by the victim. The court then issues an arrest warrant, authorising the police to
apprehend the accused.
Court’s Involvement
Summon cases typically require less direct involvement of the court, as the accused is expected to
voluntarily appear before the court in response to the summons.
In warrant cases, the court plays a more active role in overseeing the arrest and subsequent legal
proceedings. This increased court involvement is due to the gravity of the offences involved.
Bail Provisions
In summon cases, the accused often has the opportunity to seek bail easily. Since summon cases involve
less severe offences, the court may grant bail to the accused without stringent conditions.
Warrant cases, being more serious, may involve stricter bail conditions. Courts may be more cautious
when granting bail to accused individuals facing warrant cases, especially if they are charged with
heinous crimes.
Trial Procedure
Summon cases generally follow a simpler and more expedited trial procedure. The focus is on resolving
the matter efficiently and swiftly.
Warrant cases often entail a more elaborate trial process, including the examination of witnesses, cross-
examinations and the presentation of substantial evidence. These cases are more likely to proceed to a
full-fledged trial.
Legal Representation
While both summon cases and warrant cases allow for legal representation, the significance of legal
counsel may be greater in warrant cases, given the complexity and severity of the charges involved.
Penalties
The penalties imposed in summon cases are typically less severe, involving fines, warnings or limited
imprisonment.
Warrant cases, due to the gravity of the offences, can result in substantial prison sentences, including life
imprisonment or even the death penalty in some jurisdictions.
Appeal Process
The appeal process may also differ between summon cases and warrant cases. In warrant cases, the
appeal process may be more protracted and involve higher courts due to the seriousness of the charges.
In summon cases, the appeal process may be relatively straightforward and handled at lower judicial
levels.
Examples
Examples of summon cases include minor traffic violations, public nuisances and petty thefts.
Examples of warrant cases encompass offences like murder, rape, drug trafficking and serious financial
fraud.
Here is a table highlighting the key differences between summon vs warrant cases:

C Difference Between Investigation and Inquiry

Basis Investigation Inquiry

The Investigation is the process

Inquiry is a judicial procedure,
that involves the organized
initiated in order to remove
Meaning collection of facts and evidence
uncertainty, find out true facts or
designed to start the situations
expand knowledge about it.
surrounding the case.

Defined in Section 2(h) of the

Defined in Section 2(g) of the Code
Definition Code of Criminal Procedure
of Criminal Procedure (CrPC).
(CrPC).

Police officer and any other It is conducted by the magistrate or

Conducted by
person approved by magistrate. court.

Investigation is the first stage in Inquiry is the second stage that

Stage
a criminal case. follows the investigation.

The objective is to collect facts The objective is to determine the

Objective and evidence related to an truth or falsity of the allegations
alleged crime. based on the evidence.

An investigation commences
An inquiry commences when the
when a First Information Report
police file a charge sheet against the
Commencement (FIR) or complaint is filed at the
accused person based on their
police station regarding an
investigation.
alleged offense.

An investigation ends with the An inquiry ends with the framing of

Ends in
filing of a police report. charges against the accused.
Basis Investigation Inquiry

An investigation is an An inquiry is a judicial or non-

Nature of Process administrative process carried judicial process conducted under
out by executive authorities. the oversight of the court.

Basis Bond Bail

Bail is the provisional release of an

Bond refers to a surety bond, in
accused person awaiting trial in
which the bondholder agrees to
exchange for a specified sum
Meaning make good any losses incurred if
placed as security with the proper
the defendant fails to appear in
authorities to ensure their
court when summoned.
attendance in court.

The bail bondsman who acts as a Bail is paid by the defendant or

Paid By guarantor to the arrangement someone acting on his or her
pays the bond’s consideration. behalf, such as friends or relatives.

The existence of a third

Bail is one type of security that may
Objective individual in this process
be used to reassure others.
indicates a connection.

Bond is permissible only if a

Bail is permitted for a specific
credible third party assumes
Consideration consideration determined by the
responsibility for the accused’s
court.
debt and duty.

The amount of bail is returned to

The fee paid for the services the defendant at the conclusion of
Money
given is not refundable. the trial when all court processes
are completed.

Bail is reasonable in comparison to

Cost Bond is expensive.
Bond.