UNIT -1 DEFINITION AND CONSTITUTION OF CRIMINAL COURTS

1.1 DEFINITION UNDER SECTION 2

 Section 2(a) – Bailable & non-bailable offence: An offence which is specified as bailable in the First Schedule of the
Code or is made bailable by any other law in force is known as bailable offence. Whereas, any offence other than a
bailable offence is called a non-bailable offence.

In simple terms, offences where bail can be granted to the accused without any restriction, and as a right is known
as bailable offence. These offences generally are less heinous in nature. This does not mean that bail cannot be
granted in case of a “non-bailable offence,” rather bail can be granted on the discretion of the Court.

 Section 2(c) – Cognizable offence and cognizable case: “Cognizable offence” means an offence for which, and
“cognizable case” means a case in which, a police officer can arrest without warrant, in accordance with the First
Schedule or any other law in force.
 Section 2(l) – Non-cognizable offence and non-cognizable case: “Non-cognizable offence” means an offence for
which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant.
 Section 2(g) – Inquiry: Every inquiry, other than a trial conducted by a Magistrate under CrPC is defined as
inquiry by this provision. The dictionary meaning of an inquiry is “an official investigation.” This is different
from “enquiry” which is used to mean “less formal investigations.” The Magistrate’s power to hold
investigation or preliminary inquiry is found in section 159 of CrPC.
 Section 2(h)– Investigation: It includes all proceedings under CrPC carried out for the collection of evidence
by a police officer or any other person (other than a Magistrate) who is authorised by a Magistrate in this
behalf. The procedure for such investigation is specified in section 157 of CrPC.
 Section 2(wa) – Victim: In CrPC, the term victim means a person who has suffered any loss or injury due to
the action or omission of the accused, who is charged for the same. It also includes the said person’s
guardian or legal heir.
 Section 2(x) – Warrant-case: It includes a case relating to an offence (i) punishable with death, (ii) life
imprisonment or (iii) imprisonment for a term exceeding two years.
 Section 2(w) – Summons-case: Any case which is related to an offence, but is not a warrant-case is called
as summons-case. That is, any case relating to an offence punishable with imprisonment for less than two
years is a summons-case.

1.2 CONSTITUTION AND POWERS OF CRIMINAL COURTS AND OFFICES

Unit-2

The process to compel the appearance

The basic requirement for the progress of the trial in crime is the appearance of the accused that has been defined
under Chapter VI of the Criminal Procedure Code.

Summons
The most basic and mildest form of the process is the summons which may be issued in order to make a document or a
thing appear. Summons are issued in duplicate under the seal of the court that is required to be conveyed by the police
officer of the court or any public servant to someone personally.

Summons include the clear and specific title of the suit and place and includes date and time whenever a search
appearance of a person or a thing is required.

A brief description of the charged offences is provided in the summons.

The power to issue a summons in the hands of the police which directs a person to be present for some investigations.
Whenever corporation services are to be served, a summon is presented to the secretary or principal officer of that
corporation address to the chief officer of the company. Summons can also be issued on banking sectors.

Whenever it happens that a person summoned on a specific day and the person does not appear, the person’s family male
member are served the summons again who is required to sign the receipt whenever that person is found. But in cases
where summons cannot be served according to the above-mentioned procedure, the person serving the summon shall
appoint one of the summonses to be a part of the house.

Whenever a person to be given to someone is in any government service the court is required to send someone to the
head of the office under which such person has been employed. Whenever the court does not have a jurisdiction to send
the summon it may send it to the magistrate under whose jurisdiction the summon can be sent to the person where he
ordinarily resides.

Whenever someone is sent to the witness it must be sent by registered post, the provision of which was inserted in 1997 in
order to avoid any delay in service of such summons.

The procedure of sending the summons by registered post can also be adopted for sending someone’s to the accused and
delay in service of the summons is the major factor nowadays for the delay in the process of the trials.

Where the offences in the world are bouncing of cheque, petty crimes, etc. sending summons to registered post may be
avoided.

Warrant
Whenever a person fails to appear before the court on the said date after the issue of summons, he may be issued a
warrant of arrest directly.

Unless and until the court which issues such warrant cancels it or unless the warrant has been executed the warrant of
arrest shall remain in force.

The essential requirements of a valid warrant are:

 The warrant should be in a prescribed form and in writing.

 It should include the name and designation of the person who is executing it.
 It must provide the full name and description of the person to be arrested.
 It must include the offences that are charged against the person to whom the warrant is issued.
 It must be sealed.
 It must be signed by the officer of the court.
A bailable warrant may be issued to a person where there is the involvement of offence related to a minor case.

A warrant should always be directed to the person in charge of a police station. It can also be directed by the court if there
is surety and security by a person that his attendance may be taken and he may be released on bail. Such warrants are
called bailable warrants.

Execution of warrant can happen at any place in India by the way of a court which can send the warrant to the
superintendent of the police residing in that area and having jurisdiction over that area.

Whenever there are reasons to believe that a person against whom the warrant has been issued is concealing himself,
proclamation can be issued by the court which can be published in the manner which has been directed by the court
including in the newspapers and other direct attachment of property. A receiver office property can also be appointed by
the court. Whenever a proclaimed person appears the attachment can be cancelled and if the court has few reasons to
believe the abscondment of the person or the person has not obeyed or will not obey their summons the warrant of arrest
may be issued.

The controlling officers of the area where the police have sent the summons or warrant are required to know the position
of the summons and warrants.
The process to compel the production of
things
For the purpose of investigation and prosecution, the process of comparing the production of documents or a thing is
necessary. it is because unless and until the document or a thing that is required to be presented before the court is
presented the trial may be delayed.

Whenever a requirement is thereby the court or any officer in charge of the police station of the production of any
document of thing that is necessary for the investigation trial enquiry or any other proceedings of the quote then someone
may be issued or written order by an officer may be directed towards a person in whose position the document writing lies
and require him to be present with the document or produced it any which ways.

The section which deals with the process to compel the production of things is void but the discretion has to be exercised
very cautiously and judiciously.

There needs to be a direct connection between the offence and the subject matter. In the case of Lloydas Bnk, there were
charges of acquiring money by forging a cheque. Therefore the obtained money was deposited by the accused into the
bank and there was a warrant issued for the seizure of money in the bank which was held to be improper. The bank was
the owner of the money and only the accused possessed an actionable claim against the bank that cannot be produced in
the court.

It was recommended by the law commission of India in its 37th report that the provisions of Bankers Book Evidence Act
1891 was not overridden by the sections compelling the production of things or documents. Two provisions of this Act
provides that in case of any legal proceedings where the bank is not a party, the officer of the bank cannot be called to
produce any accounts or books of the bank except by the order of the court.

The section also does not give power to the court to directly direct the banker for payment of money. In the case
of Jagdish Prasad Sharma 1988, a banker was found absconding with the sum of rupees 100000 and as a result of which
under Section 406 of Indian penal code a case was filed against him. The accused was therefore arrested and his passbook
was seized. There was an order of the magistrate that directed the accused on the application of the proprietor to convert
the cash in his account into a draft and produce it in the court; this order was held to be out of the jurisdiction.

Another important weapon in the Criminal Procedure Code for production of things or documents is the search warrant.
This warrant is issued only when there are reasonable grounds for the court to believe that the person to whom it is to be
issued will not or may not produce a particular document or thing. These warrants include a particular place or a part to be
searched.

Permission of issuing warrant at pre enquiry stage is allowed and can be given. The search warrant cannot be exercised in
a mechanical manner and search powers to issue the warrants cannot be given and the court is required to record the
reasons for issuing such orders.

Even in cases of economic offences like Foreign Exchange Regulation Act (FERA) without proper representation in writing
and production of authorisation from the director of enforcement, search warrants cannot be issued otherwise it will be
held to be illegal.

According to Section 97 of Criminal Procedure Code, the court has the power to direct the search of the places where
suspension regarding stolen property and forged documents are present and prove that process if any persons are found
to be wrongfully seizing documents for a thing he may be called upon by the court.

The power to seize property is also in the hands of the police officer. The property has to be a list or suspected to have
been stolen or suspicious of some offences. Magistrate under the jurisdiction has to be informed of such seizure.

In the case of PK Parmar v Union of India 1922, Central bureau investigation (CBI) issued to banks, directions for freezing
the account of the petitioner who was alleged of opening an account in the name of his wife, sons and other family
members and used it by forging their signatures. The forgery itself was the proof and pointed out using fingers against the
petitioner and Delhi High Court rejected the order to quash the petition.
In case of DB Thakur v. State of Gujarat 1995, it was held by the Gujarat High Court that whenever there is a recovery
from the possession of the accused on the search of narcotics substances the search cannot be vitiated because it did not
cause prejudice by calling panchas. Here it is not a mandatory requirement of the presence of panchas.