NAME- AISHWARYA MONU

SEMESTER- IV

ENROLLMENT NO- 20180401008

SUBJECT- CRIMINAL PROCEDURE CODE

Q1. What is meant by search and seizure? Discuss broadly with relevant provisions and case laws.

A1. The word ‘search’ refers to the operation of government machinery that involves checking through or carefully
inspecting a location, area, person, object, etc. to detect something hidden or to reveal the pieces of evidence of a
crime. The police can lookout for an individual or a car or premises, but only after taking necessary and legitimate
lawful approval. “Seizure” is a vigorous action that unexpectedly takes over, captures, removes, or overwhelms an
entity or an individual.

In India, the power of search and seizure for prevention and investigation of offences was for the first time conferred
under the Code of Criminal Procedure and since search and seizure is a process exceedingly arbitrary in character,
stringent statutory conditions were imposed on the exercise of the power.

A search warrant is a written order which is issued by a Judge/ Magistrate or a Court to a police officer or any other
person authorizing them to conduct a search of a person, location or vehicle for evidence of a crime and confiscate
illegal evidence of a crime. The court in Kalinga Tubes Ltd. v. D. Suri and in many other cases has cautioned the
police officer to use search warrant with a little precaution and care and do not abuse their power.

Section 165 of CrPC provides for the circumstances and the way in which search is carried out by a Police Officer.
A police officer while making an investigation should have reasonable grounds for believing that something very
necessary for the purpose of investigation into an offense which he is authorized to investigate may be found in any
place within the local limits of the police station in which he is in charge. He is also required to make a record in
writing specifying his grounds of belief and why the search was conducted within the limits of such station.

In the following circumstances and conditions a search warrant is issued by a court:

1. Where a court has reason to believe that a person to whom summons or orders under Section 91 and a
requisition under Section 92(1) is addressed will not produce the things or documents as required.[Section
93(1)(a)]

2. Where the thing or document in question is not known to the court to be in the possession of any person.
[Section 93(1)(b)]

3. Where the court considers that the purposes of any inquiry,trial or other proceedings will be served by
general search or inspection. 
Search of a place without warrant

Section 165 prescribes procedure undertaken by a police officer to search a place without a warrant. It states that
whenever an officer in charge of a police station or any police officer making an investigation has reasonable
grounds to believe that in the process of investigation, there are some things necessary for an offence, which he is
authorised to investigate within the local limits of his police station without unnecessary delay, can search even
without a search warrant. He is also required to specify the reason for such a search, cause of search, etc. Section
165(3) provides that where a police officer is unable to conduct the search in person, and there is no other person
competent to carry out the search at the time, then he may after recording in writing his reasons for so doing, require
any officer subordinate to him to make the search.

Search In the presence of magistrates

Section 103 of CrPC states that the Magistrate may direct search in his presence. It provides that any magistrate may
order a search to be made in his presence of any place in which he is legally competent to issue a search warrant.

SEZIURE

The act of seizing is well known as a seizure. It is an action coupled with force in which an object or person is
suddenly taken over, grabbed, removed, or overwhelmed.

Search and seizure is also an essential stage in the process of effective investigation. There are two methods in
which police can affect search and seizure. One under a warrant which is issued under any of the provisions of
Sections 93, 94, 95, and 97 and the other is without a warrant under any of the provisions of Sections 103, 165 and
166 of CrPC.the basic provisions as to search and seizure are laid down in Section 100 of CrPC. The procedure set
out in the section is generally followed in offenses committed under the Indian Penal Code as well as in special and
local laws with a little variance. Thus, in all situations of search and seizure, the investigating police should follow
the procedures laid down under Sections 100 and 165 CrPC. Section 102 provides the power of police officers to
seize certain property.

The police may have to effect search and seizure in one or more places. One at the scene of the crime and the other
at places where the persons involved in crime are hiding and places where the incriminating articles to crime are
kept or concealed. 

As soon as a crime is committed at a place, the police officer arrives at the scene of the crime and as a golden rule he
should not alter with the position of the crime scene, pick up or even touch anything without being properly
described in an official note and photographed. 
It is his duty to ensure that there is no interference with the crime scene. He shall also not allow an unauthorized
person to meddle in the inspection of the scene. He has to make sure that there is not much crowd at the place of the
scene as there may be a possibility of distortion of evidence or clues. He should inquire about the person who came
first to the place. He should not leave the process of investigation solely on his subordinates, especially those who
are untrained. These are some of the precautions that a police officer has to take care of while carrying out the
process of search and investigation. Like the above procedures, many are established in the Code of Criminal
Procedure which is discussed later in this article.

For the purpose of any investigation, inquiry or trial, the production of things and documents is necessary, in respect
of which search and seizure of property are affected. It is a general rule that the freedom and liberty of private
citizens should not be sacrificed unless it becomes necessary in the larger interests of the section of the society for
the purpose of investigation, inquiry and trial. 

In the case of  M.P Sharma vs. Satish Chandra, in front of the apex court, that whether search warrant is an
infringement to fundamental rights or not, the court then stated that search warrants and seizures are only means of
temporary interference with the right to hold premises searched and the articles seized. Hence, the court upheld the
fact that there is no infringement of article 19 or article 20(3) of the Constitution.

Since Search warrants and seizures are considered equivalent to invasion of fundamental rights the code has laid
down certain limitations with regard to searches and seizures which are–

1) The thing or document to be searched or seized must be explicitly mentioned.

2) A magistrate other than a district magistrate or a chief judicial magistrate cannot issue a search warrant with a
respect to a document of postal authority.
3) It is expected that judicial discretion be excercised by the magistrate while issuing search warrants.
4) The provision to section 100 of Cr.P.C. need to be complied with while exercising search and seizures.

Q2 Discuss in brief the pre-trial procedure?

A2.

First Information Report: Under Section 154 of the Code of Criminal Procedure, a FIR or First Information
Report is registered. FIR puts the case into motion. A FIR is information given by someone (aggrieved) to the police
relating to the commitment of an offense.

Section 154 of the code talks about when information is given as a cognizable offence. The information must be
given by the informant to the officer in charge of a police station in writing or must be reduced into writing by the
officer in charge of the police station. The written information has to be read over to the informant and be signed by
him, which is called “First Information Report.” When the information is given by a woman against whom any of
the offences under Sections 326-A, 326-B, 354, 354-A to 354-D, 376, 376-A to 376-E or 509 IPC is alleged to have
been committed or attempted, such statement shall be recorded by a woman police officer.

After the information has been received by the police officer, he shall start his investigation, provided he has reasons
to suspect that a cognizable offence has been committed.

Investigation: The next step after the filing of FIR is the investigation by the investigating officer. A conclusion is
made by the investigating officer by examining facts and circumstances, collecting evidence, examining various
persons and taking their statements in writing and all the other steps necessary for completing the investigation and
then that conclusion is filed to the magistrate as a police report.

When the information received by the police officer is not of serious nature, the officer need not proceed in person
or depute some subordinate officer to investigate on the spot. And if no sufficient ground exists for entering on an
investigation, he shall not investigate the case. And shall state in its report for not complying with the requirements
of this section, and notify the informant that he will not investigate the case or cause it to be investigated.

He shall then send this report to the Magistrate empowered to take cognizance of such offence.

Sending Report to Magistrate: A report is sent to the Magistrate which is called the police report. It is sent by the
superior police officer, so as to make the Magistrate aware that a particular case is being investigated by a police
officer. The main objective of sending a report is to enable the Magistrate to control the investigation and give
directions if required under Section 159 of the Code.

The report should be sent to the Magistrate without any delay. In Swati Ram v. State of Rajasthan, it was held that
mere delay in sending the report does not throw away the prosecution case in its entirety.

At different stages of an investigation, different reports are to be submitted by the police to the Magistrate. These
reports are:

 Section 157 of the CrPC requires the officer in charge of the police station to submit a report to the
Magistrate, called a preliminary report.
 Section 168 of the CrPC requires a subordinate officer to submit a report to the officer in charge of the
police station.
 Section 173 of the CrPC requires that a final report is to be submitted to the Magistrate as after the
investigation gets over.

On completion of the investigation, the following procedure is to be followed:

 Release of accused when evidence is deficient

 Cases to be sent to Magistrate when evidence sufficient
  Diary of proceedings in an investigation (section 172)
 Report of police on completion of the investigation

Q3. What is meant by bail? Discuss about types of bail.

A3. The term bail means the temporary release of an accused person on a temporary basis. As the term bail has
been derived from the french word bailer which means to deliver or to give. The term bail has been used for a long
time.  As defined in the oxford dictionary bail is the absolution of an accused person temporarily awaiting the trial or
a sum of money is lodged by the accused person as a guarantee for his appearance in the court.

The provisions regarding the bail and bonds have been specified from section 436 to 450 of the criminal procedure
code. These provisions envisaged in the code gives the brief regarding the provisions of the bail.

The concept of bail is that it acts as security lodged by the accused person on the basis of which he can be released
on a temporary basis but needs to appear in court whenever required by the court. The process of bail takes place
while the trial of the accused person is still pending. Generally, a person seeks this option in order to get himself
released from the police custody. The process of bail is a legitimate process.

There are commonly 3 types of bail in India which a person can apply depending upon the stage of the criminal
matter:

1. Regular Bail: A regular bail can be granted to a person who has already been arrested and kept in police
custody. A person can file a bail application for regular bail under Section 437 and 439 of the CrPC.

When a person applies for regular bail then the court concerned ordinarily lists that application after a few
days so that it can look into the case diary which has to be obtained from the police authorities and in the
meantime the applicant has to go to jail.

Even if the applicant is released on bail thereafter, his reputation may be tarnished irreparably in society.
The reputation of a person is his valuable asset, and is a facet of his right under Article 21 of the
Constitution vide Deepak Bajaj v. State of Maharashtra and Another [(2008) 16 SCC 14]. Hence, we are of
the opinion that in the power to grant bail there is inherent power in the court concerned to grant interim
bail to a person pending final disposal of the bail application. Of course, it is in the discretion of the court
concerned to grant interim bail or not but the power is certainly there.
 2. Interim Bail: Interim bail is a bail granted for a short period of time. Interim bail is granted to an accused
before the hearing for the grant of regular bail or anticipatory bail. When an application for the grant of bail
is filed before a Court like Supreme Court or High Court, it requires documents from lower Courts or
investigation agency like charge sheet, certified copies of documents, case diary etc to take decision. But
the process to get these documents require time and the accused or convict has to remain in jail till the court
gets hold of these documents and can decide on the bail plea. But accused or convict can apply for an
interim bail to avoid jail for such period till higher court gets required documents from the lower court or
investigating agency. Thus interim bail is a temporary bail for a period in which higher court can call
documents required to make a final decision on the bail application in which court can either grant
permanent bail, extent interim bail or even can reject bail application.

3. Anticipatory Bail: A person who discerns that he may be arrested by the police for a non-bailable offence,
can file an application for anticipatory bail. It is like an advance bail obtained under Section 438 of the
CrPC. A bail under Section 438 is a bail before arrest and a person cannot be arrested by the police if the
anticipatory bail has been granted by the court.

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.

1. The nature and gravity of the accusation.

2. 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.

Q4. What is meant by maintenance? Discuss in detail about the scope of S.125 Cr.P.C

A4. The word ‘Maintenance’ is not defined in the Code of Criminal Procedure, 1973. Chapter IX of the Code of
Criminal Procedure deals with provisions for maintenance of wives, children and parents. ‘Maintenance’ in general
meaning is keeping something in good condition. ‘Maintenance’ in legal meaning is money (alimony) that someone
must pay regularly to a former wife, husband or partner, especially when they have had children together. It is the
duty of every person to maintain his wife, children and aged parents, who are not able to live on their own.
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 Maintainence?

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

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.

If a minor female child is unmarried, then the magistrate can order to make such allowance, until she attains her
majority. In case a minor child is married and the magistrate is satisfied that the husband of such minor female child
is not possessed of sufficient means, then the magistrate can order father of the minor female child to make such an
allowance for maintenance.

When a proceeding is pending regarding monthly allowance for maintenance, the Magistrate can order such person
to make a monthly allowance for the interim maintenance of his wife, children or parents and the expenses of such
proceeding which the Magistrate considers reasonable.
An application for the monthly allowance for the interim maintenance and expenses of proceeding should be
disposed within sixty days from the date of the notice of the application to such person.

According to Section 125(2), If a court order for such allowance for maintenance or interim maintenance and
expenses of the proceeding, then it should be payable from the date of the order or if so ordered, then it shall be
payable from the date of application for maintenance and expenses of proceedings.

According to Section 125(3), If any person fails to comply with the order without sufficient cause, then Magistrate
can order to issue a warrant for levying the amount with fines. If the person again fails after the execution of the
warrant, then the punishment of imprisonment for a term which may extend to one month or until payment of sooner
made is awarded.

Q5. Define the following terms ___ 

 Bail
 Cognizable offence
 Charge
 Inquiry
 Investigation
 Offence
 Victim   

1. Bail - Bail denotes the provisional release of an accused in a criminal matter in which the court is yet to
announce a judgment. The expression 'bail' means a security deposited to appear before the court for
release. The primary objective of arrest is to ensure that the accused in a criminal case appears before the
court for the conveyance of justice. However, if the person’s presence can be guaranteed for the court trial
without putting the person in a jail, it would unfair and unjust to violate a person’s liberty. Thus, bail can be
granted as a conditional liberty to the accused
.
2. Cognizable Offence- A cognizable offence is an offence in which the police officer as per the first
schedule or under any other law for the time being in force, can arrest the convict without a warrant and can
start an investigation without the permission of the court. Cognizable offences are generally heinous or
serious in nature such as murder, rape, kidnapping, theft, dowry death etc. The first information report
(FIR) is registered only in cognizable crimes.

3. Charge- There is no particular of a charge in terms of what it is supposed to constitute. Section 2 (b)
includes any head of charge, when the charge contains more than one head.
4. Inquiry- According to Section 2(g) of CrPC, it means every inquiry other than trial conducted under the
CrPC by a Magistrate or Court. a request for information such doubt as would cause a reasonable person to
make an inquiry.

5. Investigation-The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal procedure,
Investigation includes all the proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.

6. Offence- Any act or omission made punishable by the law for time being. It includes any act in respect of
which a complaint is being made under section 20 of the Cattle-trespass Act, 1871

7. Victim- The term victim is defined in Criminal Procedure Code 1973 section 2(wa) as a person who has
suffered any loss or injury caused by reason of the act or omission for which the accused person has been
charged and the expression “victim" includes his or her guardian or legal heir.