CRPC Notes Has Brief Details On CRPC Questions and Answers

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Crpc Notes - Has brief details on Crpc questions and answers
Criminal Law - II (Karnataka State Law University)
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CRPC
Q. When is a person declared Absconder? Explain the procedure for publication of proclamation
for persons absconding with reference to Sections 82, 83, 84, 85.
When a person is hiding from his place of residence so as to frustrate the execution of a warrant of arrest,
he is said have absconded. A person may hide within his residence or outside away from his residence. If
a person comes to know about the issuance of a process against him or if he anticipates such a process
and hides or quits the country, he is said to have absconded. In Kartary vs State of UP, 1994, All HC
held that when in order to evade the process of law a person is hiding from (or even in) his place of
residence, he is said to abscond. A person is not said to abscond merely when he has gone to a distant
place before the issuance of a warrant. Similarly, it is necessary that the person is hiding himself and it is
not sufficient that an inspector is unable to find him.
Normally, if a person fails to appear before the court even after being served a summons, the court issues
a warrant of arrest. However, if the person absconds to avoid the arrest, the drastic step of Proclamation
for Persons Absconding needs to be taken, which is described in Section 82..
Proclamation for person absconding (Section 82(1)) -

If the court has reason to believe that a person has absconded to avoid the execution of his arrest
warrant, the court may publish a written proclamation requiring such person to appear before it at the
specified place and time. The date and time of appearance must not be less than thirty days from the date
of proclamation.
Procedure for Publication of the Proclamation (Section 82(2)) -

As per section 82(2), the proclamation must be read in some conspicious place of the town or village in
which the person resides. It shall also be affixed to some conspicuous part of the house in which the
person resides or to some conspicuous place of the town or village. Further, a copy of the same must
also be affixed to some conspicious part of the court house. The court may also direct a copy of the
proclamation to be published in a daily newspaper circulating in the place is which such person ordinarily
resides.
The terms of Section 82 are mandatory and a proclamation cannot be issued without first issuing a
warrant of arrest. Therefore, as held in Bishnudayal vs Emperor AIR 1943, if there is no authority to
arrest, the issuing of proclamation would be illegal.
Consequences of Proclamation
Section 83 - Attachment of property of person absconding -
The publication of proclamation in accordance with the procedure described in section 82, is the last of
the steps taken to produce a person before the court. If the person still fails to appear before the
court, Section 83 empowers the court to attach the property of the person who is absconding at any time.
The court must record the reasons for doing so. The property can be movable or immovable. The
property can be any property within the district or even outside the district of the District magistrate of the
other district endorses the proclamation.
Further, if, at the time of making proclamation, the court is satisfied that the person is about to dispose of
his property or is about to move his property out of the jurisdiction of the court, it may order the
attachment of the property simultaneously with the issue of proclamation.

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If the property to be attached is a debt or is movable property, the attachment is done either by seizure,
by the appointment of a receiver, by an order ins writing prohibiting the deliver of sch property to the
proclaimed person or to anyone on his behalf. Court can also use any one or more of these modes as it
thinks fit. If the property is immovable, it can be attached by taking possession, by appointing a receiver,
by an order prohibiting the payment of rent to the proclaimed persons or by any or all of these methods.
Section 84 provides a means to protect the interests of any person other than the proclaimed person in
the attached property. Any such person who has an interest in the attached property can claim it within six
months from the date of attachment on the ground that the claimant has an interest in the property and
the interest is not liable to be attached under section 83. The claim shall be inquired into and may be
allowed or disallowed in whole or in part.
(1) If any claim is preferred to, or objection made to the attachment of, any property attached under
section 83, within six months from the date of such attachment, by any person other than the proclaimed
person, on the ground that the claimant or objector has an interest in such property, and that such interest
is not liable to attachment under section 83, the claim or objection shall be inquired into, and may be
allowed or disallowed in whole or in part:
Provided that any claim preferred or objection made within the period allowed by this sub-section may, in
the event of the death of the claimant or objector, be continued by his legal representative.
(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order
of attachment is issued, or, if the claim or objection is in respect of property attached under an order
endorsed under sub-section (2) of section 83, in the Court of the Chief Judicial Magistrate of the district in
which the attachment is made.
(3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for
disposal to any Magistrate subordinate to him.
(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-
section (1) may, within a period of one year from the date of such order, institute a suit to establish the
right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the
order shall be conclusive.
Section 85 - Release, Sale, and restoration of the property -

(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make
an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation, the property
under the attachment shall be at the disposal of the State Government; but it shall not be sold until the
expiration of six months from the date of the attachment and until any claim preferred or objection made
under section 84 has been disposed of under that section, unless it is subject to speedy and natural
decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases
the Court may cause it to be sold whenever it thinks fit.
(3) If, within two years from the date of the attachment, any person whose property is or has been at the
disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and
brought before the Court by whose order the property was attached, or the Court to which such Court is
subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for
the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as
to enable him to attend within the time specified therein such property, or, if the same has been sold, the
net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale, and the
residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the
attachment, be delivered to him.

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Arrest
Q. What do you understand by Arrest? How is an arrest made? When can the police arrest a
person without an order from a magistrate and/or without a warrant? Explain the rights of an
arrested person. [Right to know the grounds of arrest - Art 22(1), Sec 50, 50(A), Right to consult
and to be defended by legal practitioner of his choice - Art 22(1), Sec 303, Right to legal aid - Art
21, Sec 304, Right to bail Sec 50(2), Right to be produced before nearest magistrate within 24 hrs -
Art 22(2) Sec 56, 57, Right not to be detained in custody beyond 24 hrs - Art 22(2) Sec 57, 167,
Right to be examined by medical practitioner]
Arrest means apprehension of a person by legal authority so as to cause deprivation of his liberty. Thus,
after arrest, a person's liberty is in control of the arrester. Arrest is an important tool for bringing an
accused before the court as well as to prevent a crime or prevent a person suspected of doing crime from
running away from the law. Cr P C contemplates two types of arrests - an arrest that is made for the
execution of a warrant issued by a magistrate and an arrest that is made without any warrant but in
accordance with some legal provision that permits arrest.
Section 41 to 44 contain provisions that govern the arrest of a person by police and private citizens,
while Section 46 describes how an arrest is a made.
(Note - Arrest in case of Warrant is discussed in another question.)
Arrest without warrant

There are situations when a person may be arrested by a police officer, a magistrate or even private
citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows -
Arrest by Police - Section 41. When police may arrest without warrant (CIPSODOBO)
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has
been made, or credible information has been received, or a reasonable suspicion exists, of his having
been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such
person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government;
or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and
who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to
escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or
(g) 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
offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended
or detained in custody in India; or
(h) who, being a released convict, commits a breach of any rule made under sub-section (5) of section
356; or
(I) for whose arrest any requisition, whether written or oral, has been received from another police officer,
provided that the requisition specifies the person to be arrested and the offence or other cause for which
the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.

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(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person,
belonging to one or more of the categories of persons specified in section 109 or section 110.
In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be made
merely because it is lawful to do so. There must be a justifiable reason to arrest. Further, in State vs
Bhera, CrLJ, 1997, it was held that the "reasonable suspicion" and "creditable information" must relate to
definite averments which must be considered by the Police Officer himself before he arrests the person.
Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he refuses to give his
name and residence. As per Section 42(1), when any person who, in the presence of a police officer,
has committed or has been accused of committing a non-cognizable offence refuses, on demand of such
officer, to give his name and residence or gives a name or residence which such officer has reason to
believe to be false, he may be arrested by such officer in order that his name or residence may be
ascertained.
However, as per sub clause (2), the person must be released when the true name and residence of such
person have been ascertained. He may be required to execute a bond, with or without sureties, to appear
before a Magistrate if necessary.
Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties
resident in India.
Further, as per sub clause (3), should the true name and residence of such person not be ascertained
within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to
furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction.
Arrest by Private person

Even private persons are empowered to arrest a person for protection of peace in certain situations. This
is important because police cannot be present at every nook and corner and it is up to private citizens to
protect the society from disruptive elements or criminals. As per section 43(1), any private person may
arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable
offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be
made over any person so arrested to a police officer, or, in the absence of a police officer, take such
person or cause him to be taken in custody to the nearest police station. Thus, if a person is drunk and is
committing assault on others, he may be rightly arrested by any citizen and taken to the nearest police
station.
However, it is important to note that this power can be exercised only when the person making an arrest
is under a bona fide impression that a non-bailable and cognizable office is being committed in his
presence. One does not have a right to arrest on mere suspicion or on mere opinion that an offence has
been committed.
Procedure on arrest by private person -

As mentioned above, the private person must take the arrested person to the police officer or police
station without any reasonable delay. If he keeps the person in his own custody, he will be guilty of
wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions of section
41, a police officer shall re-arrest him. Further, as per section 43(3), if there is reason to believe that he
has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his
name and residence, or gives a name or residence which such officer has reason to believe to be false,
he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that
he has committed any offence, he shall be at once released.
A new provision has been incorporated as Section 50A, which makes it obligatory for the police officer or
any other person making an arrest to 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

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nominated by the arrested person for the purpose of giving such information. Further, the police officer
shall inform the arrested person of his rights under subsection as soon as he is brought to the police
station. He must make an entry of the fact as to who has been informed of the arrest of such person in a
book to be kept in the police station in such form as may be prescribed in this behalf by the State
Government. It is the duty of the Magistrate before whom such arrested person is produced, to satisfy
himself that the requirements of this section has been complied with in respect of such arrested person.
Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of a Magistrate, whether Executive
or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender,
and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody.
Further, (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in
his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and
in the circumstances to issue a warrant.
Important thing to note here is that magistrates have wider power than private citizen. A magistrate can
arrest on the ground of any offence and not only on cognizable offence. As held in the case of Swami
Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954, the arrested person must be produced
before another magistrate within 24 hours, otherwise his detention will be illegal.
Arrest how made -

Section 46 describes the way in which an arrest is actually made. As per Section 46(1), unless the
person being arrested consents to the submission to custody by words or actions, the arrester shall
actually touch or confine the body of the person to be arrested. Since arrest is a restraint on the liberty of
the person, it is necessary for the person being arrested to either submit to custody or the arrester must
touch and confine his body. Mere oral declaration of arrest by the arrester without getting submission to
custody or physical touching to confine the body will not amount to arrest. The submission to custody may
be by express words or by action. For example, as held in the case of Bharosa Ramdayal vs Emperor
AIR 1941, if a person makes a statement to the police accusing himself of committing an offence, he
would be considered to have submitted to the custody of the police officer. Similarly, if the accused
proceeds towards the police station as directed by the police officer, he has submitted to the custody. In
such cases, physical contact is not required. In case of Birendra Kumar Rai vs Union of
India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person, and it can also be
complete by spoken words if the person submits to custody.
Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade the arrest,
such police officer or other person may use all means necessary to effect the arrest. Thus, if the person
tries to runaway, the police officer can take actions to prevent his escape and in doing so, he can use
physical force to immobilize the accused. However, as per Section 46(3), there is no right to cause the
death of the person who is not accused of an offence punishable with death or with imprisonment for life,
while arresting that person. Further, as per Section 49, an arrested person must not be subjected to more
restraint than is necessary to prevent him from escaping.
Due to concerns of violation of the rights of women, a new provision was inserted in Section 46(4) that
forbids the arrest of women after sunset and before sunrise, except in exceptional circumstances, in
which case the arrest can be done by a woman police officer after making a written report and obtaining a
prior permission from the concerned Judicial Magistrate of First class.
In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the police
station or confining the movement of the person in the precincts of the police station amounts to arrest of
the person.
Rights of an Arrested person (GBMLLIM)
Cr P C gives wide powers to the police for arresting a person. Such powers without appropriate

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safeguards for the arrested person will be harmful for the society. To ensure that this power is not used
arbitrarily, several restraints have been put on it, which, indirectly, can be seen as recognition of the rights
of a person being arrested. Further, once arrested, a person is already at a disadvantage because of his
lack of freedom and so he cannot take appropriate steps to defend himself. Thus, to meet the needs of
"fair trial", several provisions are given in CrPC, that give specific rights to an arrested person. These
rights can be described as follows -
1. Right to know the grounds of arrest - Section 50(1) - According this provision, every police officer or
other person arresting any person without warrant shall forthwith communicate to him full particulars of
the offence for which he is arrested or other grounds for such arrest.
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55, the subordinate officer must notify the person to be arrested of the substance of the
written order given by the senior officer, which clearly specifes the offence for which he is being arrested.
The same provision exists in case of an arrest made under a warrant in Section 75. In this case, the
police officer or any person making arrest under warrat must notify the substance of the warrant to the
person being arrested and if required, must show the warrant. As held in Satish Chandra Rai vs Jodu
Nandan Singh, ILR 26 Cal 748, if the substance of the warrant is not notified, the arrest would be
unlawful.
In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of grounds of arrest
is a precious right of the arrested person. This allows him to move the proper court for bail, make a writ
petition for habeas corpus, or make appropriate arrangements for his defence.
This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No person who is
arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such
arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his
choice.". It embodies two distinc rights - the right to be told of the grounds of arrest and the right to
consult a legal practioner of his choice. The second right of consulting a legal practitioner of his choice
actually depends on the first right of being told about the grounds of arrest. If the person doesn't know
why he is being arrested, he cannot consult a legal practioner meaningfully. In Harikishan vs State of
Maharashtra AIR 1962, SC held that the grounds of arrest must be communicated to the person in the
language that he understands otherwise it would not amount to sufficient compliance of the constitutional
requirement.
2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are not very
serious do not require the offender to be kept in custody. For such offences, Cr P C allows the offender to
ask for bail as a matter of right. However, not every person knows about Cr P C and so they cannot know
that they can get bail immediately. Thus, Section 50(2), provides that where a police officer arrests any
person other than a person accused of a non-bailable offence without warrant, 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. Right to be taken to magistrate without delay - Holding a person in custody without first proving that
the person is guilty is a violation of human rights and is completely unfair. At the same time, holding a
person in custody is necessary for the police to carry on their investigation of a crime. These two are
contradictory requirements and a balance must be found between them. Since police has arrested the
person, it cannot be the agency that determines whether person must be kept confined further. This can
only be decided by a competent judicial authority. This is exactly what is embodied in Art 22(2) that gives
a fundamental right to the arrested person that he must be produced before a magistrate within 24 hours
of arrest. It says, "Every person who is arrested and detained in custody shall be produced before the
nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and no such person shall be detained in
custody beyond the said period without the authority of a magistrate."
Section 57 of CrPC also contains a similar provision for a person arrested without a warrant. It says, "No
police officer shall detain in custody a person arrested without warrant for a longer period than under all
the circumstances of the case is reasonable, and such period shall not, in the absence of a special order

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of a Magistrate under Section 167, exceed twenty four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate's court."
Section 76 contains a similar provision for a person arrested under a warrant. It says, "The police officer
or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security)
without unnecessary delay bring the person arrested before the court before which he is required by law
to produce such person. Provided that such delay shall not, in any case, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court."
Thus, it can be see that it is a very important right that is meant to prevent abuse of police power and to
prevent the use of a police station as a prison. It prevents arrest merely for the purpose of extracting
confessions. The arrested person gets to be heard by a judicial authority that is independent of the police.
In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its police to ensure
that this constitutional and legal requirement of bringing an arrested person before a judicial magistrate
within 24 hours be scrupulously met. This is a healthy provision that allows magistrates to keep a check
on the police investigation. It is necessary that the magistrates should try to enforce this requirement and
when they find it disobeyed, they should come heavily upon the police.
Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to produce an
arrested person before a magistrate within 24 hours, he shall be held guilty of wrongful detention.
Constitutional Perspective on Art 22(2) - On the face of it, this article seems to be applicable on
arrests with or without warrants. However, in State of Punjab vs Ajiab Singh AIR 1953, SC observed
that it applies only to cases of arrests without warrant because in case of an arrest with warrant, the
judicial mind has already been applied while issuing the warrant. So further safeguard is not required.
This decision has been widely criticized. In any case, the proviso to Section 76 unmistakably provides that
a person arrested under a warrant must be produced before a magistrate within 24 hours.
4. Right to consult Legal Practitioner - Art 22 (1) - For conducting a fair trial it is absolutely necessary
that the accused person is able to consult with a legal practitioner whom he trusts. Second part of Article
22(1) gives this fundamental right to an arrested person. It says that no person who is arrested shall be
denied the right to consult, and to be defended by, a legal practitioner of his choice. However, this does
not mean that the State must provide a legal practitioner of the person's choice. It is up to the arrested
person to contact and appoint a such a legal practitioner. The State's responsibility is only to ensure that
he is not prevented from doing so.
The same right is also provide by CrPC under Section 303, which says, "Any person accused of offence
before a Criminal Court or against whom proceedings are instituted under this Code, may of right be
defended by a pleader of his choice."
5. Right to free legal aid - Art 21 and Section 304 - A person who does not have the means to hire a
legal practitioner is unable to defend himself appropriately. This casts a cloud on the fairness of the trial.
Therefore, Section 304 provides that where, in a trial before the Court of Session, the accused is not
represented by a pleader, and where appears to the Court that the accused has not sufficient means to
engage a pleader, the Court shall assign a pleader for his defense at the expense of the State. In Khatri
(II) vs State of Bihar 1981 SCC, Supreme Court has also held that access to a legal practitioner is
implicit in Article 21, which gives fundamental right to life and liberty. The state is under constitutional
mandate to provide free legal aid to an indigent accused person and this constitutional obligation arises
not only when the trial is commenced but also when the person is first produced before a magistrate and
also when he is remanded from time to time. In Suk Das vs Union Territory of Arunachal Pradesh
1986, SCC, SC has held that non-compliance of this requirement or failure to inform the accused of this
right would vitiate the trial entailing setting aside of the conviction and sentence. The right of an accused
person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may
be within the presence of a police officer but not within the police officer's hearing. SC also held that it is
the duty on all courts and magistrates to inform the indegent person about his right to get free legal aid.

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6. Right to be informed about the right to inform of his arrest to his relative or friend -
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court, in Joginder
Kumar vs State of UP 1994, formulated the rules that make it mandatory on the police officer to inform
one friend, relative, or any other person of the accused person's choice, about his arrest. These rules
were later incorporated in CrPC under section 50 A in 2005.
Section 50 A (1) provides that once the arrested person is brought to the police station, the police officer
must inform a relative or a friend, or any other person of the arrested person's choice, about his arrest. He
must also tell the place where the arrested person has been kept. This is a very important step in
ensuring justice with the arrested person because this allows the arrested person and his well wishers to
take appropriate legal steps to secure his release. However, all this will amount to nothing if the arrested
person does not even know about this very critical right. Thus, Section 50 A (2) provides that the police
officer must inform the arrested person of this right. Further, as per Section 50 A (3) he must note down
the name and address of the person who was informed about the arrest. To make sure that there is no
violation of this right, section 50 A (4) makes it a duty of the magistrate to verify that the provisions of this
section were complied with.
7. Right to be examined by a medical practitioner - While Section 53 allows a police officer to get the
accused examined by a registered medical practitioner, Section 54(1) gives the accused a right to get
himself examined by a registered medical practitioner. Section 54 (1) says thus, "When a person who is
arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate
or at any time during, the period of his detention in custody that the examination of his body will afford
evidence which will disprove the commission by him of any offence or which Magistrate shall, if requested
by the arrested person so to do direct the examination of' the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay
or for defeating the ends of Justice". While Section 53 is meant to aid the police in investigation, Section
54(1) is meant for the accused to prove his innocence. This right can also be used by the accused to
prove that he was subjected to physical injury.
In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused person must be
informed by the magistrate about his right to be medically examined in terms of Section 54(1).
However, it is not clear in the section whether the medical person must be of the choice of the accused or
shall be appointed by the magistrate. The section is also silent on who will bear the expense of the
examination.
Non compliance to this important provision prompted Delhi High court to issue directions that make it
obligatory for the magistrates to ask the arrested person as to whether he has any complaint of torture or
maltreatment in police custody.
Consequences of non-compliance with the provisions relating to arrest -

In general, non-compliance does not void a trial. Just because any provision relating to arrest was not
complied with does not affect whether the accused is guilty or not. However, the violation will be material
in case the accused is prosecuted on the charge of resistance to or escape from lawful custody.
Further, everybody has a right to defend himself against unlawful arrest and a person can exercise this
right under Section 96 to 106 of IPC and he will not be liable for any injury caused due to it. Also, a
person who is making an illegal arrest is guilty of wrongful confinement and also exposes himself to
damages in a civil suit.
If a person who has an authority to arrest, arrests a person with full knowledge that the arrest is illegal, he
will be liable to be prosecuted under Section 220 of IPC. Similarly, any private person who does not have
an authority to arrest, arrests a person with full knowledge that the arrest is illegal, can be prosecuted
under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.
It is important to note that the provisions regarding arrest cannot be by-passed by alleging that there was

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no arrest but only an informal detention. Informal detention or restraint of any kind by the police is not
authorized by law.
Charge
Q. What is a Charge? What are the contents of a Charge? Discuss the effects of errors in a
Charge? How is a Charge different from FIR?
Charge
As per Wharton's law Lexicon, Charge means to prefer an accusation against some one. To charge a
person means to accuse that person of some offence. However, charge is not a mere accusation made
by a complainant or an informant. A charge is a formal recognition of concrete accusations by a
magistrate or a court based upon a complaint or information against the accused. A charge is drawn up
by a court only when the court is satisfied by the prima facie evidence against the accused. The basic
idea behind a charge is to make the accused understand what exactly he is accused of so that he can
defend himself. A charge gives the accused accurate and precise information about the accusation
against him.A charge is written in the language of the court and the fact that the charge is made means
that every legal condition required by law to constitute the offence charged is fulfilled in the particular
case.
It is a basic principle of law that when a court summons a person to face a charge, the court must be
equipped with at least prima facie material to show that the person being charged is guilty of the offences
contained in the charge. Thus, while framing a charge, the court must apply its mind to the evidence
presented to it and must frame a charge only if it is satisfied that a case exists against the accused. In the
case of State vs Ajit Kumar Saha 1988, the material on record did not show a prima facie case but the
charges were still framed by the magistrate. Since there was no application of mind by the magistrate, the
order framing the charges was set aside by the High Court.
According to Section 2(b) of Cr P C, when a charge contains more than one heads, the head of charges
is also a charge.
Contents of a Charge
Section 211 specifies the contents of a Charge as follows [ONDSLP] -
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law that creates the offence gives it any specific name, the offence may be described in the
charge by that name only.
(3) If the law that creates the offence does not give it any specific name so much of the definition of the
offence must be stated as to give the accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been committed shall be
mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law
to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous
conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it
is intended to prove such previous conviction for the purpose of affecting the punishment which the court
may think fit to award for the subsequent offence, the fact date and place of the previous, conviction shall
be stated in the charge; and if such statement has been omitted, the court may add it at any time before
sentence is passed.
A charge must list the offence with which the person is charged. It must specify the law and the section
against which that offence has been done. For example, if a person is charged with Murder, the charge

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must specify Section 300 of Indian Penal Code. If the law gives a name to that offence, the charge must
also specify that name and if the law does not specify any name for that offence, the charge must specify
the detail of the offence from the definition of the offence so that the accused is given a clear idea of it.
In many cases, on offender is given a bigger sentence for subsequent offence. In such cases, the charge
must also state the date and place of previous conviction so that a bigger punishment may be given.
Illustrations -
(a) A is charged with the murder of B. This is equivalent to a statement that A's act fell within the definition
of murder given in sections 299 and 300 of the Indian Penal Code (45 of 1860); that it did not fall within
any of the general exceptions of the said Code; and that it did not fall within any of the five exceptions to
section 300, or that, if it did fall within Exception 1, one or other of the three provisos to that exception
applied to it.
(b) A is charged under section 326 of the Indian Penal Code (45 of 1860) with voluntarily causing
grievous hurt to B by means of an instrument for shooting. This is equivalent to a statement that the case
was not provided for by section 335 of the said Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal intimidation, or using a false
property-mark. The charge may state that A committed murder, or cheating, or theft, or extortion, or
adultery, or criminal intimidation, or that he used a false property-mark, without reference to the definition,
of those crimes contained in the Indian Penal Code; but the sections under which the offence is
punishable must, in each instance, be referred to in the charge.
(d) A is charged under section 184 of the Indian Penal Code (45 of 1860) with intentionally obstructing a
sale of property offered for sale by the lawful authority of a public servant. The charge should be in those
words.
Time and Place of the offence

Further, as per section 212, the charge must also specify the essential facts such as time, place, and
person comprising the offence. For example, if a person is charged with Murder, the charge must specify
the name of the victim and date and place of the murder. In case of Shashidhara Kurup vs Union of
India 1994, no particulars of offence were stated in the charge. It was held that the particulars of offence
are required to be stated in the charge so that the accused may take appropriate defence. Where this is
not done and no opportunity is afforded to the accused to defend his case, the trial will be bad in law for
being violative of the principles of natural justice.
It is possible that exact dates may not be known and in such cases, the charge must specify information
that is reasonably sufficient to give the accused the notice of the matter with which he is charged. In
cases of criminal breach of trust, it will be enough to specify gross sum or the dates between which the
offence was committed.
Manner of committing the offence

Some times, even the time and place do not provide sufficient notice of the offence which which a person
is charged. In such situations, Section 213, mandates that the manner in which the offence was made
must also be specified in the charge. It says that when the nature of the case is such that the particulars
mentioned in sections 211 and 212 do not give accused sufficient notice of the matter with which he is
charged, the charge shall also contain such particulars of the manner is which the alleged offence was
committed as will be sufficient for that Purpose.
Illustrations-
(a) A is accused of the theft of a certain article at a certain time and place the charge need not set out the
manner in which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set out the manner in which
A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out that portion
of the evidence given by A which is alleged to be false.

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(d) A is accused of obstructing B, a public servant, in the discharge or his public functions at a given time
and place. The charge must set out the manner obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the manner in
which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save punishment. The charge must set
out the disobedience charged and the law infringed.
Effects of errors in a Charge

In general, an error in a Charge is not material unless it can be shown that the error misled the accused
or that the error caused injustice. Section 215 says, "No error in stating either the offence or the
particulars required to be stated in the charge, and no omission to state the offence shall be regarded at
any stage of the case as material, unless the accused was in fact misled by such error or omission, and it
has occasioned a failure of justice."
Illustrations:
(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with "having, been in
possession of counterfeit coin, having known at the time when he became possessed thereof that such
coin was counterfeit," the word "fraudulently" being omitted in the charge. Unless it appears that A was in
fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is
set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The
court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge.
There were many transactions between A and B, and A had no means of knowing to which of them the
charge referred, and offered no defence. Court may infer from such facts that the omission to set out the
manner of was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the murdered
person's name was Haidar Baksh, and the date of the murder was the 20th January. 1882. A was never
charged with any murder but one, and had heard the inquiry before the Magistrate, which referred
exclusively to the case of Haidar Baksh. The court may infer from these facts that A was not misled, and
that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda Baksh (who tried
to arrest him for that murder) on the 21st January, 1882. When charged for the murder of Haidar Baksh,
he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the
case of Haidar Baksh. The court may infer from this that A was misled, and that the error was material.
The above illustrations show that when the accused in not misled, the error is not material. For example,
in the case of Rawalpenta Venkalu vs State of Hyderabad, 1956, the charge failed to mention the
Section number 34 of IPC but the description of the offence was mentioned clearly. SC held that the the
section number was only of acedemic significance and the ommission was immaterial.
Section 464 further provides that an order, sentence, or finding of a court will not be deemed invalid
merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in
the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation,
or revision, a failure of justice has in fact happened because of it. If such a court of appeal, confirmation,
or revision find that a failure of justice has indeed happened, in case of omission, it may order that a
charge be immediately framed and that the trial be recommenced from the point immediately after the
framing of the charge, and in case of error, omission, or irregularity in the charge, it may order new trial to
be held upon a charge framed in whatever manner it thinks fit.
As is evident, the object of these sections is to prevent failure of justice where there has been only
technical breach of rules that does not affect the root of the case as such. As held in the case of Kailash
Gir vs V K Khare, Food Inspector, 1981, the above two sections read together lay down that whatever
be the irregularity in framing the charge, it is not fatal unless there is prejudice caused to the accused.

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Further, Section 216 allows the court to alter the charge anytime before the judgement is pronounced.
Section 216:
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in
the opinion of the court to prejudice the accused in his defence or the prosecutor in the conduct of the
case the court may, in its discretion, after such alteration or addition has been made, proceed with the
trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of
the court to prejudice the accused or the prosecutor as aforesaid, the court may either direct a new trial or
adjourn the trial for such period as may be necessary.
(5) lf the offence stated in the altered or added charge is one for the prosecution of which previous section
is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had
been already obtained for a prosecution on the same facts as those on which the altered or added charge
is founded.
Thus, even if there is an error in a charge, it can be corrected at a later stage. An error in a charge is not
important as long as the accused in not prejudiced and principles of natural justice are not violated.
Difference between Charge and FIR

A First Information Report is a description of the situation and the act that constitutes a cognizable
offence as given to the office in charge of a police station by any person. Such information is signed by
the person giving the information. If the information is given orally, it is reduced in writing by the officer in
charge, read over to the informant, and then signed by the person. The substance of this information is
also entered into a register which is maintained by the officer. This is the first time when an event is
brought to the attention of the police. The objective of the FIR is to put the police in motion for
investigating the occurance of an act, which could potentially be a cognizable offence.
An FIR is a mere allegation of the happening of a cognizable offence by any person. It provides a
description of an event but it may not necessarily provide complete evidence. No judicial mind has to be
applied while writing the FIR. However, upon receipt of an FIR, the police investigates the issue, collects
relevant evidence, and if necessary, places the evidence before a magistrate. Based on these preliminary
findings of the police, the magistrate then formally prepares a charges , with which the perpetrator is
charged.
Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the offences but Charge is a
precise formulation of the offences committed. An FIR is a description of an event, while a Charge is a
description of the offences committed in that event. An FIR may or may not name an offender but a
charge is always against a person. An FIR is always of a cognizable offence, but a charge may also
include a non-cognizable offence.
Q. Explain the principle of separate charges for distinct offences. Are there any exceptions? (sec
218, 219, 220, 221, 223). When can multiple offences be charged separately, when can they be
tried in the same/different trial? What do you understand by Joinder of charges?
The initial requirement in conducting a fair trial in criminal cases is a precise statement of the charges of
the accused. This requirement is ensured by CrPC through Sections 211 to 214, which define the
contents of a charge. Precise formulation of charges will amount to nothing if numerous unconnected
charges are clubbed together and tried together. To close this gap, Section 218enunciates the basic
principle that for every distinct offence there should be a separate charge and that every such charge
must be tried separately.
Section 218 says thus -

(1) For every distinct offence of which any person is accused there shall be a separate charge and every
such charge shall be tried separately:

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Provided that where the accused person, by an application in writing, so desires and the Magistrate is of
opinion that such person is not likely to be prejudiced thereby the Magistrate may try together all or any
number of the charges framed against such person.
Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be
separately charged and separately tried for the theft and causing grievous hurt.
The object of Section 218 is to save the accused from being frustrated in his defense if distinct offences
are lumped together in one charge or in multiple charges but tried in the same trial. Another reason is that
the court may become prejudiced against the accused if he were tried in one trial for multiple charges
resting on different evidence since it might be difficult for the court not be get influenced on one charge by
evidence against him on other charges.
It must be noted that Section 218 says "distinct offences" must be charged and tried separated. It does
not say "every offence" or "each offence". It has been held in Banwarilal Jhunjhunwala vs Union of
India AIR 1963, that "distinct offence" is different from "every offence" and "each offence". Separate
charge is required for distinct offence and not necessarily for every offence or each offence. Two offences
are distinct if they are not identical and are not in any way interrelated. A distinct offence may
distinguished from other offences by difference in time or place of commitment, victims of the offence, or
by difference in the sections of the law which make the acts as offence.
However, a strict observance to Section 218 will lead to multiplicity of trials, which is also not desirable.
Therefore sections 219 to 223 provide certain exceptions to this basic rule. These are as follows -
[3TBDGDJ]
Exception 1. Three offences of the same kind within a year - Section 219 - When a person is
accused of more than one offences of the same kind within a span of twelve months, he may be charged
and tried at one trial for any number of such offences not exceeding three. For example, if a person is
accused of theft in three different homes in the span 12 months, he can be charged with all the three at
once and tried at the same trial. The period of 12 months is counted from the occurance of the first
offence up to the last offence.
An offence is considered to be of the same kind if it is punishable by the same amount of punishment
under the same section of IPC or of the local or special law. Further, if the attempt to commit an offence is
an offence, then it is considered an offence of the same kind for the purpose of this section.
Exception 2. Offences committed in the course of same transaction - Section 220(1) - If a person
commits multiple offences in a series of acts that constitutes one transaction, he may be charged with and
tried in one trial for every such offence. The code does not define the meaning of the term transaction.
However, it is well accepted that a precise definition of transaction is not possible and even Supreme
Court has not attempted to define it. In case of State of AP vs Cheemalapati Ganeshwara Rao, AIR
1963, SC observed that, it would always be difficult to define precisely what the expression means.
Whether a transaction is to be regarded as same would depend upon the facts of each case. But is is
generally thought that were their is proximity of time, place, or unity of purpose and design or continuity of
action in a series of acts, it may be possible that they form part of the same transaction. It is however not
necessary that every one of these elements should coexist for considering the acts as part of the same
transaction.
For example, A commits house-breaking by day with intent to commit adultery, and commits in the house
so entered, adultery with B's wife. A may be separately charged with, and convicted of, offences under
sections 454(Lurking house trespass or house breaking with an intention to commit offence punishable
with imprisonment) and 497(Adultery) of the Indian Penal Code.
Exception 3 - Offences of criminal breach of trust or dishonest misappropriation of property and

their companion offences of falsification of accounts - Section 220(2) - Usually the offence of
criminal breach of trust or dishonest misappropriation of property is committed with the help of offence of
falsification of accounts to conceal the main offence. This section allows such offences to be charged with
and tried at one trial.

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Exception 4 - Same act falling under different definitions of offences - Section 220(3) - If an act
constitutes an offence under two or more separate definitions of any law in force, the person may be
charged with and tried at one trial for each of the offences. For example, A wrongfully strikes B with a
cane. This act constitutes an offence as per Section 323 (Voluntarily causing hurt) as well as Section 252
(Assult or criminal force otherthan on grave provocation). Thus, the person may be charged with both and
tried for both the offences at the same trial.
Exception 5 - Acts forming an offence, also constituting different offences when taken separately
or in groups - Section 220(4) - When several acts together constitute an offence and those acts, which
taken individually or in groups, also constitune another offence or offences, the person committing those
acts may be be charged with and tried at one trial. For example, A commits robbery on B, and in doing so
voluntarily causes hurt to him. A may be separately charged, with and convicted of offences under
sections 323(Voluntarily causing hurt), 392(Robbery) and 394(Voluntarily causing hurt while committing
robbery) of the Indian Penal Code.
Exception 6 - Where it is doubtful what offence has been committed - Section 221 - If a single act
or a series of acts is of such nature that it is doubtful which of the several offence the facts of the case will
constitute, the accused may be charged with having committed all or any of such offences and all or any
of such charges may be tried at once. Further, in such a situation, when a person is charged with an
offence but according to evidence it appears that he committed another offence, he may be convicted of
the offence which he is shown to have committed even if he is not charged with that offence. For
example, A is accused of an, Act which may amount to theft, or receiving stolen property, or criminal
breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of
trust and cheating, or he may be charged with having committed theft, or receiving stolen property or
criminal breach of trust or cheating.
Further, in the same case mentioned, lets say, A is only charged with theft and it appears that he
committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted
of criminal breach of trust of receiving stolen goods (as the case may be) though he was not charged with
such offence.
Another illustration is as follows - A states on oath before the Magistrate that he saw B hit C with a club.
Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and
convicted of intentionally giving false evidence, although it cannot to be proved which of these
contradictory statements was false.
Exception 7 - Certain persons may be charged jointly - Section 223 - The following persons may be
charged and tried together, namely:-
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such
offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219
committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation,
and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property
possession of which is alleged to have been transferred by any such offence committed by the first-
named persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or
either of those sections in respect of stolen property the possession of which has been transferred by one
offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to
counterfeit coin and persons accused of any other offence under the said Chapter relating to the same
coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the
former part of this Chapter shall, so far as may be, apply to all such charges :
Provided that where a number of persons are charged with separate offences and such persons do not

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fall within any of the categories specified in this section, the Magistrate may, if such persons by an
application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected
thereby, and it is expedient so to do, try all such persons together.
Bond
Q. Explain general provisions concerning bond [Sec 441 - 450]. Explain the procedure that is
followed when a bond is forfeited [Section 446].
Bond
As per Section 441, before any person is released on bail or is released on his own bond, a bond for an
appropriate sum of money shall be executed by the person and if required by one or more sureties,
stating that the person will appear before the court at the given date and time mentioned in the bond.
In other words, a bonds provides a kind of monetary guarantee that the person being released will appear
before the court as and when required.
General Provisions of Bonds - ( ABNRI DDFFIMAL)

Section 440 - Amount of bond should not be excessive. High Court and Court of Session have power to
reduce the amount.
Section 441 - Court may accept affidavits in proof of fitness of sureties or it may also hold an inquiry to
determine the sufficiency of sureties.
Section 441 A - Every surety must state the number of person he is currently standing surety for.
Section 442 - As soon as the bond is executed, the person should be released.
Section 443 - If through mistake, fraud or otherwise, insufficient sureties have been accepted or if they
afterwards become insufficient, the court may issue a warrant of arrest and may ask him to provide fresh
sureties.
Section 444 - A surety can apply to be discharged from the bond, in which case, the person for whom the
surety is given will be arrested and asked to provide new surety.
Section 445 - A court may permit a person to deposit money instead of executing a bond with or without
sureties.
Section 446 - If a bond is forfeited, the sureties may be asked to pay the penalty.
Section 446 A - When a bond for appearance of a person is forfeited for a breach of condition, the bond
executed by the person and the sureties shall stand canceled.
Section 447 - If a surety becomes insolvent or dies, the court may ask for new sureties.
Section 448 - If the person from whom bond is required is minor the court may accept a bond executed by
sureties only.
Section 449 - Appeal from orders under Section 446 will lie to Sessions Judge if the order is made by a
magistrate and to High Court if the order is made by Sessions Judge.
Section 450 - The High Court or Court of Session may direct any magistrate to levy the amount due on a
bond for appearance or attendance at such High Court or Session Court.
Procedure on forfeiture of a Bond

If the court is satisfied that the bond has been forfeited -
1. It may ask any person bound by the bond to pay penalty or to show cause why it should not be paid.
2. If sufficient cause is not shown and penalty is not paid, the court may proceed to recover the same
as if the penalty was a fine imposed by the court.
3. If the penalty cannot be recovered, the person bound as surety is liable to be imprisoned in civil jail
for up to 6 months
4. The court may remit any portion of the penalty and require the payment in part. It must record its
reasons for doing so.
5. If a surety to a bond dies, his estate shall be discharged from all liability in respect of the bond.

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Commencement Of Proceedings
Q. 8 What is meant by Commencement of proceedings? [Sec 200, 201, 202] When can a complaint
be dismissed?[Sec 203]
"Commencement of proceedings" happens with the proceedings that take place after "taking of
cognizance" of an offence by a magistrate under Section 190, which can happen either on a complaint by
any person, a police report, any other source other than a police officer, or upon his own knowledge.
However, when cognizance is take upon a complaint made by any person, it is critical to examin the
complainant to ensure that the complaint is genuine before starting the trial and summoning an accused.
According to 41st Law Report, everyday experience of the court shows that a vast number of complaints
to the magistrate are ill founded and therefore they should be carefully considered at the very start and
those which are not very convincing on the face should be subjected to further scrutiny so that an
accused person is summoned only in substantial cases. What this means is that frivolous and vexatious
cases that are just meant to harass an accused must be weeded out. This is exactly the objective of
Section 200, which implores a magistrate to examin the compainant under oath and any witnesses.
Section 200 says: A Magistrate taking cognizance of an offence on complaint shall examine upon oath
the complainant and the witnesses present, if any, and the substance of such examination shall be
reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant
and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made
the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after
examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
In MacCulloch vs State, 1974, it was held by SC that the provisions of section 200 are not a mere
formality, but have been intended by the legislature to be given effect to for the protection of the accused
persons against unwarranted complaints.
It is also necessary that to start the trial process, the magistrate must be competant to take cognizance
the alleged offence. Section 201 says that if the magistrate is not competant to take congnizace of an
offence, he shall (a) if the complaint is in writing, return it for presentation to the proper Court with an
endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court.
To further protect a person from frivolous cases arising from complaints from private parties, Section
202 empowers a magistrate to inquire into the case himself or direct an investigation to be made by a
police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is
sufficient ground for proceeding and he can postpone the issue for process for this purpose.
It is important to note that the "weeding" as envisaged by Section 200-203 is only applicable to cases
where cognizance is taken by the magistrate upon a complaint by a private party. It is not applicable to
cognizance taken upon a police report.
Issue of Process (Section 204)

Once it is determined that a prima facie case exists against the accused, the magistrate proceeds with the
case as per Section 204 by the way of issuing a process. Which means :
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for
proceeding, and the case appears to be -
(a) a summons-case, he shall issue his summons for the attendance of the accused, or

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(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to
be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some
other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the
prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under
sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process
shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the
Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87 (Section 87: Issue of
warrant in lieu of, or in addition to, summons).
Dismissal of a Complaint - Section 203

As mentioned before, upon receiving a complaint, a magistrate can conduct an inquiry or direct
investigation of the complaint under Section 202(1). Section 203 empowers a magistrate to dismiss the
complaint, if, after considering the statements on oath from the complainant or his witnesses or the result
of the inquiry or investigation, he believes that there are no sufficient grounds for proceeding further. He
must record the reasons for dismissal. The magistrate must apply his mind on the collected statements
and inquiry report to determine whether there is any merit in the complaint. However, as held by SC
in Chandra Deo Singh vs Prokash Chandra Bose, 1963, the test specified by Section 203 for
dismissing a complaint is only whether sufficient grounds exist for proceeding further and not whether
sufficient grounds exist for conviction. Thus, even if the magistrate does not see sufficient grounds for
conviction but sees sufficient ground for proceeding further with the trial, he must not dismiss the
complaint. SC further observed that where there is a prima facie evidence against the accused, even
though the accused might have a defence, the issue of process cannot be refused because the hearing of
defence must be done at the appropriate stage and at appropriate forum.
Criminal Procedure Code

Differences Short Notes

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Differences and Short Notes.
Summons Case and Warrant Case

As per Section 2(w), "summons-case" means a case relating to an offence, and not being a warrant-case
and as per Section 2 (x), "warrant-case" means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. Cr P C classifies an offence as
either cognizable or non-cognizable, and a trial procedure as summons case or warrant case. Thus, the
terms summons case and warrant case are in reference to the procedure adopted for the trial of the case.
Thus, the difference between the two can be seen from the point of view of their trial procedures as
highlighted below -
D2CCPAWO
Summons Case Warrant case
Cr P C prescribes only one procedure for all Cr PC prescribes two procedures for the trial of a warrant case
summons cases, whether instituted upon a police my magistrate - one for case instituted upon a police report
report or otherwise. and one for case instituted otherwise than on a police report.
No charge needs to be framed only the particulars of
A charge needs to be framed against the accused.
the offence needs to be conveyed to the accused.
As per S. 252, if the accused pleads guilty, the As per S. 241, After the charge is framed, the accused may
magistrate must record the plea of the accused and plead guilty and the magistrate may convict him on his
may, in his discretion, convict him on such plea. discretion.
Accused my plead guilty by post without appearing
Accused must appear personally.
before the magistrate.
Magistrate can discharge the accused if complainant is absent,
The accused may be acquitted, if the complainant is
or no charge is framed, or if the offence is compoundable and
absent or if the complainant dies.
non cognizable.
The complainant may, with the permission of the court,
The complainant may, with the permission of the withdraw the remaining charges against an accused, if he is
court, withdraw the complaint against the accused. charged with several offences and convicted on one or more of
them.
When a warrant case is tried as a summons case and When a summons case is tried as a warrant case and if the
if the accused is acquitted under S. 255, the acquittal accused is discharged under S 245, the discharge will amount
will only amount to discharge. to acquittal.
Trial of a warrant case as a summons case it is a
Trial of a summons case as a warrant case is an irregularity
serious irregularity and the trial is vitiated if the
which is curable under Section 465.
accused has been prejudiced.
A summons case cannot have charges that require a A warrant case may contain charges that reflect a summons
warrant case. case.
Accused may get more than one opportunity to cross-examine
Accused gets only one opportunity.
the prosecution witness.
A charge under a warrant case cannot be split up into its
constituents for trial under summons case.
After convicting the accused, the magistrate may take
No such power to the magistrate in summons case. evidence regarding previous conviction not admitted by the
accused.
All cases which are not punishable by death,
All cases which are punishable by death, imprisonment for life,
imprisonment for life, or for more than two years are
or for more than two years are warrant cases.
summons cases.

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Conversion
As per Section 259, a summons case can be
converted into a warrant case if the case relates to an
offence that entails more than 6 months of A warrant case cannot be converted into a summons case.
imprisonment as punishment and the judge feels that
in the interest of justice it the case should be tried as
a warrant case.
It is important to note that the question whether a summons or a warrant should be issued in the case is
not related to whether the case is a summons case or a warrant case.
Compoundable and Non Compoundable Offences - Some offences largely affect only the victim and
no considerable harm is considered to be done to the society. In such offences, if the offender and victim
compromise, there is no need to waste court's time in conducting a trial. The process of reaching a
compromise is called Compounding. Conceptually, such offences, in which a compromise can be done
and a trial can be avoided, are called Compoundable offence. Rest of the offences are non-
compoundable. Technically, offences classified as Compoundable by Section 320 of Cr P C are
compoundable. Section 320 specifies two kinds of Compoundable offences - one where permission of
court is required before compounding can be done for example, voluntarily causing grievous hurt, Theft,
criminal breach of trust, assault on a woman with intention to outrage her modesty, etc. and one where
permission of the court is not required for example, causing hurt, adultery, defamation, etc. As per S.
320(3), if the abetment of an offence is an offence and if the offence is compoundable then abetment is
also compoundable.
Only the person, who is specified in the classification tables in Section 320, has the right to compound the
offence. The person is usually the victim. The offender cannot demand compounding as a right.
However, when an offender has been committed to trial or when he has been convicted and his appeal is
pending, compounding can only be done with the leave of the court to which he is committed or to which
the trial is pending. If an offender is liable for enhanced punishment or a different punishment on account
of a previous conviction, compounding cannot be done. High Court and Court of Session may, under their
power of revision in Section 401, can allow any person to compound any compoundable offence.
When an offence is compounded, it is equivalent to an acquittal.
Compoundable Offence Section 320 Non Compoundable Offence

Offences classified as compoundable by S. 320 of CrPC Rest of the offences
Private party as well as society both are
Offence mostly affects a private party.
considerably affected by the offence.
The victim and the offender may reach compromise with or No compromise is allowed. Even court does not
without the permission of the court depending on the offence. have the power to compound the offence.
Full trial is held and acquittal or conviction is given
Upon compromise, the offender is acquitted without any trial.
as per the evidence.
In Bhima Singh vs State of UP, AIR 1974, SC held that when an offence is compoundable with the
permission of the court, such permission may be granted by SC while an appeal is made against the
conviction provided the parties have settled the matter amicably.
In Ram Lal vs State of J&K, 1999, SC held that when an offence is declared non-compoundable by law,
it cannot be compounded even with the permission of the court. However, the court may take the

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compromise into account while delivering judgment.

The case of B S Joshi vs State of Haryana, AIR 2003 is interesting in this regard. The case was about
the matter related to Section 498A, which is non-compoundable offence. In this case, the parties reached
a compromise but the High Court refused to quash the FIR, on the ground that the offence is non-
compoundable. However, SC held that in the backdrop of the interpretation of the various relevant
provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series
of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers
under Section 482 of the Code, such power could be exercised either to prevent abuse of the process of
any court or otherwise to secure the ends of justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give
an exhaustive list of myriad kinds of cases wherein such power should be exercised. It further observed
that in this case, the parties were not asking for compounding the offence but for quashing the FIR. It
observed that since because of the amicable settlement, there is no chance of conviction and in such a
case the court has the power to quash the proceeding.
Information and Complaint
Information Complaint
As per Section 2(d), a complaint means any allegation
made orally or in writing to a magistrate, with a view to his
No legal definition. It is used in its regular English meaning. taking action under this code (CrPC), that some person,
whether known or unknown, has committed an offence,
but does not include a police report.
The purpose of complaint is that the magistrate takes
No action from the magistrate is expected.
action on it and provide relief.
Magistrate takes cognizance of the offence as per Section
No cognizance is taken.
190.
It may include information about commission of offences,
apprehension about breach of peace, and presence of
absconder and suspected persons to police officers or It is always about commission of an offence.
magistrate. Thus, an information may not necessarily
about an offence.
Sufficient grounds for commitment and Sufficient grounds for conviction
Sufficient grounds for commitment Sufficient grounds for conviction

When a magistrate takes cognizance of an offence Upon holding the trial, if the court is satisfied with the
under Section 190 (upon receipt of a complaint or evidence provided by the prosecute that the accused is guilty
otherwise), he examines the complaint in accordance of the alleged offence, he convicts the offender.
with Section 200 by examining the facts and the
witnesses. If he finds that the complaint is with merits,
the case is deemed committed for trial and the
magistrate issues the process under Section 204. If the

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offence is exclusively triable by Court of Session, the

magistrate commits the case to Court of Session under
Section 209.
At this stage it is not considered whether the grounds The evidence must prove the guilt of the accused without any
are sufficient for conviction. doubt.
Discharge and Acquittal
Discharge Acquittal
Session Trial
If after evaluating the evidence given by the
Session Trial prosecute, the judge considers that there is no
As per Section 227, if, upon consideration of the record of the evidence that the accused has committed the
case and the documents submitted therewith, and after offence, the judge acquits the offender
hearing the submissions of the accused and the prosecution under Section 232.
in this behalf, the Judge considers that there is not sufficient However, if the offender is not acquitted under
ground for proceeding against the accused, he shall discharge Section 232, he is permitted to give his defense and
the accused and record his reasons for so doing. evidence. After hearing the arguments of both the
parties, the court may acquit of convict the person
under Section 235.
Warrant Trial By Magistrate
As per Section 239, if, upon considering the police report and
Warrant Trial By Magistrate
the documents sent with it under section 173 and making such
As per Section 248, if, in any case under this
examination, if any, of the accused as the Magistrate thinks
Chapter in which a charge has been framed, the
necessary and after giving the prosecution and the accused
Magistrate finds the accused not guilty, he shall
an opportunity of being heard, the Magistrate considers the
record an order of acquittal.
charge against the accused to be groundless, he shall
discharge the accused, and record his reasons for so doing.
Discharge does not mean that the accused has not committed
Acquittal means that the accused has been held
the offence. It just means that there is not enough evidence to
innocent.
proceed with the trial.
If further evidence is gathered later on, the accused may be The accused cannot be tried again for the same
tried again. offence once he has been acquitted.
Cognizable offence and Non-cognizable offence
Cognizable offence Non Cognizable offence

Defined in Section 2(c) - "cognizable offence" means an offence Defined in Section 2(l) - "non-cognizable offence"
for which, and "cognizable case" means a case in which, a means an offence for which, and "non-cognizable
police officer may, in accordance with the First Schedule or case" means a case in which, a police officer has
under any other law for the time being in force, arrest without no authority to arrest without warrant.
warrant. Example - keeping a lottery office, voluntarily

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causing hurt, dishonest misappropriation of

Examples - Murder, Dowry death, grevious hurt, theft.
property.
As per Section 155, Police has to enter
Police has to record information about a cognizable offence in
information in register prescribed for it and refer
writing as per Section 154.
the informant to a magistrate.
Police officer cannot investigate the case without
Police can start investigation without the order of a magistrate.
the order of a magistrate.
In general, cognizable offences are of serious nature which
involve imprisonment of more than three years. However, there
is no such precise rule. To be cognizable, an offence must be
declared so by the law defining that offence. Several offences
which carry less prison term such as rioting (2 yrs) have been
declared cognizable, while several with bigger prison term such
as False Evidence (7 yrs) or Rape by a man with his own wife of
not less than 12 yrs have been declared non-cognizable.
First Information Report
The name FIR is given to the information given by any person about a cognizable offence and recorded
by the police in accordance with Section 154. As per this section, every information relating to the
commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be
reduced to writing by him or under his direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person
giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as
the State Government may prescribe in this behalf.
SC in the case of State of Bombay vs Rusy Mistry, AIR 1960, defined FIR as so - A FIR means the
information, by whomsoever given, to the officer in charge of a police station in relation to the commission
of a cognizable offence and which is first in point of time and on the strength of which the investigation
into that offence is commenced.
Thus, FIR is nothing but information of the nature of a complaint or accusation about a cognizable offence
given by any person to the police so that the police can start investigation. When a person reports any
information about a cognizable offence to the police, the police is bound to register a case and proceed
with investigation. However, for police to investigate the matter, the offence must be a cognizable
offence. The police is not allowed to investigate a non-cognizable offence without an order from a
magistrate. So, once the duty officer is certain that the offence alleged to have been committed is a
cognizable offence, he directs the complainant to put his statement in writing. In the presence of the
complainant, the duty officer shall complete all the columns in the FIR register with the information given
by the complainant. He shall then read out all the contents of the FIR registered to the complainant. Once
the complainant is certain that all the details have been correctly written, he should sign the FIR.
FIR merely contains the facts of the offence as known by the informant. The FIR is a statement by the
complainant of an alleged offence. The informant is not required to prove his allegations in any manner at
the police station. It is the job of the police to ascertain facts, verify details and substantiate the charges or
otherwise.
However, the facts must not be vague. The facts must divulge at least some concrete information about
the offence committed. In case of Tapinder Singh vs State, 1972, SC held that when a telephone

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message did not disclose the names of the accused nor did it disclose the commission of a cognizable
offence, it cannot be called a FIR.
In case of State of UP vs R K Shrivastava, 1989, SC held that if the allegations made in an FIR do not
constitute a cognizable offence, the criminal proceeding instituted on the basis of the FIR should be
quashed.
Sometimes multiple persons may report the same incident and in such situation the police must use
commonsense and record one statement as FIR. Usually, the statement that contains enough information
to allow the police to proceed with investigation is recorded as FIR.
Evidentiary Value of FIR

A FIR is not substantive evidence that is, it is not evidence of the facts which it mentions. However, it is
very important since it conveys the earliest information about the occurrence of an offence and it can be
used to corroborate the information under Section 157 of Indian Evidence Act or to contradict him under
Section 145 of Indian Evidence Act, if the informant is called as a witness in a trial. It is considered that
FIR has a better corroborative value if it is recorded before there is time and opportunity to embellish or
before the memory of the information becomes hazy. There must be a reasonable cause for the delay.
For example, in case of Harpal Singh vs State of HP, 1981, involving rape, the FIR was registered after
10 days. It was held that the delay was reasonable because it involved considerable matter of honor for
the family and that required time for the family to decide whether to take the matter to court or not. As FIR
can also be used in cross examination of the informant.
However, if the FIR is made by the accused himself, it cannot be used against him because of Section 25
of Evidence act which forbids any confession made to the police to be used against the accused.
A FIR can also be used as a dying declaration under Section 32 of Indian Evidence Act.
Summary Trial
1. A kind of fast track proceeding where a case is resolved in one sitting.
2. Meant for petty offenses, to reduce the burden of court
S. 260 - When a case involving the following offenses comes to CJM, MM, and JMFC for hearing, they
have the discretionary power to decide whether they want to try the case summarily or not. There are 9
such offences -
any offence that does not have death, life imprisonment or imprisonment of more than 2 yrs as
punishment, theft, lurking house trespass, receiving stolen property, assisting in concealment of stolen
property, abetment of the offences covered under this section, attempt of these offences.
If at any point in while trying the matter in this manner, if the court thinks that it is undesirable to try the
case summarily, it shall recall any witnesses who may have been examined and proceed to re-hear the
case in the manner provided in this code (i.e. as a summons trial or warrant trial)
S. 261 - High Court may give power to Judicial Magistrate Second class to try offences involving
imprisonment of less than 6 months summarily.
S. 262 - Sentence of imprisonment of more than 3 months cannot be passed in a summary trial and the
procedure adopted in a summary trial will be same as the procedure adopted in a Summons case except
the following changes -
S. 263 - The judge must record the following particulars in the prescribed format - serial number of the
case, date of offence, date of complaint, name of complainant, name, age, address, parentage of
accused, offence complained and offence proved, plea of the accused and his examination, findings,
sentence, and date of termination of the proceeding.
S. 264 - If the accused does not plead guilty, the judge must record the substance of the evidence and
give reasons for the judgment.
S. 265 - Every the such record and judgment shall be in the language of the court.
In Ram Lochan vs State, 1978, it was held that although trying a govt. servant summarily is legal, it
should not be done so because upon conviction, govt. servant may lose his job, which is a serious loss.
Appeal and Revision in Summary Trials

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No appeal lies if only a sentence of fine not exceeding 200/- is awarded. A revision application would lie
to the High Court in such a case.
Juvenile Justice Act
Q. Discuss the causes of Juvenile Delinquency. Who is a child in need of care and
protection? State the procedure followed by Juvenile Justice Court. State the orders that can be
passed for delinquent children under this act. Describe the main features of Juvenile Justice (Care
and Protection) Act, 2000. What protections are given by the legislature and the judiciary to
juvenile delinquents?
Causes of Juvenile Delinquency

Common sense stuff
Reasons for enacting this act -

WHEREAS the Constitution has, in several provisions, including clause (3) of article 15, clauses (e) and
(f) of article 39, articles 45 and 47, impose on the State a primary responsibility of ensuring that all the
needs of children are met and that their basic human rights are fully protected;
AND WHEREAS, the General Assembly of the United Nations has adopted theConvention on the
Rights of the Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of standards to be
adhered to by all State parties in securing the best interests of the child;
AND WHEREAS, the Convention on the Rights of the Child emphasizes social reintegration of child
victims, to the extent possible, without resorting to judicial proceedings;
AND WHEREAS, the Government of India has ratified the Convention on the 11th December, 1992.
AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in mind the
standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum
Rules for the Administration of Juvenile Justice, 1985 (the Beijing rules), the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty (1990), and all other relevant international instruments.
BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-
Art 15(3) - State can make any special provision for women and children.
Art 39 (e) - It shall be the duty of the state to ensure that the health and strength of workers, men and
women, and the tender age of children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength;
Art 39 (f) - It shall be the duty of the state to ensure that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and
against moral and material abandonment.
Art 45/Now Art 21A - The State shall endeavor to provide, within a period of ten years from the
commencement of this Constitution, for free and compulsory education for all children until they complete
the age of fourteen years.
Art 47 - The State shall regard the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in particular, the State shall
endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health.
Art 51(k) - It shall be the duty of the citizen of India who is a parent or guardian to provide opportunities
for education to his child or, as the case may be, ward between the age of six and fourteen years.
Child in need of care and protection [OPMUNEVACCC]

As per Section 2(d), "child in need of care and protection" means a child -

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1. who is found without any home or settled place or abode and without any ostensible means of
subsistence,
2. who resides with a person (whether a guardian of the child or not) and such person has
threatened to kill or injure the child and there is a reasonable likelihood of the threat being carried out,
or has killed, abused or neglected some other child or children and there is a reasonable likelihood of
the child in question being killed, abused or neglected by that person,
3. who is mentally or physically challenged or ill children or children suffering from terminal diseases
or incurable diseases having no one to support or look after,
4. who has a parent or guardian and such parent or guardian is unfit or incapacitated to exercise
control over the child,
5. who does not have parent and no one is willing to take care of or whose parents have abandoned
him or who is missing and run away child and whose parents cannot be found after reasonable inquiry,
6. who is being or is likely to be grossly abused, tortured or exploited for the purpose of sexual
abuse or illegal acts,
7. who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
8. who is being or is likely to be abused for unconscionable gains,
9. who is victim of any armed conflict, civil commotion or natural calamity;
Neglected Child
The term neglected child has been removed from the current JJA and has been replaced with "Child in
need of care and protection" defined above. The old act defines "neglected juvenile" as a juvenile who-
(i) is found begging; or
(ii) is found without having any home or settled place of abode and without any ostensible means of
subsistence and is destitute;
(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the juvenile; or
(iv) lives in a brothel or with a prostitute or frequently goes to any place used for the purpose of
prostitution, or is found to associate with any prostitute or any other person who leads an immoral,
drunken or depraved life;
(v) who is being or is likely to be abused or exploited for immoral or illegal purposes or unconscionable
gain;
Section 2(k) - "juvenile" or "child" means a person who has not completed eighteenth year of age;
Section 2(l) - "juvenile in conflict with law" means a juvenile who is alleged to have committed an
offence;
Section 2(b) - "Begging" means -
i. soliciting or receiving alms in a public place or entering into any private premises for the purpose of
soliciting or receiving alms, whether under any pretence;
ii. exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound, injury,
deformity or disease, whether of himself orof any other person or of an animal;
Composition and Procedure followed by Juvenile Justice Court.
Composition
As per Section 4
(1) The State Government may constitute for a district or a group of districts specified in the notification,
one or more Juvenile Justice Boards for exercising the powers and discharging the duties conferred or
imposed on such Boards in relation to juveniles in conflict with law under this act.
(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first class, as the
case may be, and two social workers of whom at least one shall be a woman, forming a Bench and every
such Bench shall have the powers
conferred by the Code of Criminal Procedure,on a Metropolitan Magistrate or, as the case may be, a
Judicial Magistrate of the first class and the Magistrate on the Board shall be designated as the principal
Magistrate.
(3) No Magistrate shall be appointed as a member of the Board unless he has special knowledge or

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training in child psychology or child welfare and no social worker shall be appointed as a member of the
Board unless he has been actively involved in health, education, or welfare activities pertaining to children
for at least seven years.
(4) The term of office of the members of the Board and the manner in which such member may resign
shall be such as may be prescribed.
(5) The appointment of any member of the Board may be terminated after holding inquiry, by the State
Government, if -
i. he has been found guilty of misuse of power vested under this act,
ii. he has been convicted of an offence involving moral turpitude, and such conviction has not been
reversed or he has not been granted full pardon in respect of such offence,
iii. he fails to attend the proceedings of the Board for consecutive three months without any valid reason
or he fails to attend less than three fourth of the sittings in a year.
Section 5 - Procedure
(1) The Board shall meet at such times and shall, observe such rules of procedure in regard to the
transaction of business at its meetings, as may be prescribed.
(2) A child in conflict with law may be produced before an individual member of the Board, when the
Board is not sitting.
(3) A Board may act notwithstanding the absence of any member of the Board, and no order made by the
Board shall be invalid by reason only of the absence of any member during any stage of proceedings:
Provided that there shall be at least two members including the principal Magistrate present at the time of
final disposal of the case.
(4) In the event of any difference of opinion among the members of the Board in the interim or final
disposition, the opinion of the majority shall prevail, but where there is no such majority, the opinion of the
principal Magistrate, shall prevail.
Section 6 - Powers of the Board

(1) Where a Board has been constituted for any district or a group of districts, such Board shall, have
power to deal exclusively with all proceedings under this Act, relating to juvenile in conflict with law.
(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and
the Court of Session, when the proceedings comes before them in appeal, revision or otherwise.
Orders that can be passed for delinquent children
Section 15 - Orders that may be passed regarding a Juvenile
1. Where a Board is satisfied on inquiry that a juvenile has committed an offence, then notwithstanding
anything to the contrary contained in any other law for the time being in force, the Board may, if it thinks
so fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry against and
counseling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counseling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen years of age
and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care of any
parent, guardian or other fit person, on such parent, guardian or other fit person executing a bond, with or
without surety, as the Board may require, for the good behavior and well-being of the juvenile for any
period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care of any fit
institution for the good behavior and well-being of the juvenile for any period not exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
i. in the case of juvenile, over seventeen years but less than eighteen years of age for a period of not less

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than two years;

ii. in case of any other juvenile for the period until he ceases to be a juvenile :
Provided that the Board may, if it is satisfied that having regard to the nature of the offence and the
circumstances of the case it is expedient so to do, for reasons to be recorded, reduce the period of stay to
such period as it thinks fit.
2. The Board shall obtain the social investigation report on juvenile either through a probation officer or a
recognized voluntary organization or otherwise, and shall take into consideration the findings of such
report before passing an order.
3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the Board may, if it
is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in addition make
an order that the juvenile in conflict with law shall remain under the supervision of a probation officer
named in the order during such period, not exceeding three years as may be specified therein, and may
in such supervision order impose such conditions as it deems necessary for the due supervision of the
juvenile in conflict with law .
Provided that if at any time afterwards it appears to the Board on receiving a report from the probation
officer or otherwise, that the juvenile in conflict with law has not been of good behavior during the period
of supervision or that the fit institution under whose care the juvenile was placed is no longer able or
willing to ensure the good behavior and well-being of the juvenile it may, after making such inquiry as it
deems fit, order the juvenile in conflict with law to be sent to a special home.
The Board shall while making a supervision order under sub-section (3), explain to the juvenile and the
parent, guardian or other fit person or fit institution, as the case may be, under whose care the juvenile
has been placed, the terms and conditions of the order shall forthwith furnish one copy of the supervision
order to the juvenile, the parent, guardian or other fit person or fit institution, as the case may be, the
sureties, if any, and the probation officer.
In case of Municipal Corporation of Delhi vs Rattanlal, 1971, it was held that while allowing the release
of a juvenile, the court should consider the following - circumstances of the case, circumstances of the
accused, age, and family background.
Section 16 Orders that may not be passed against a Juvenile

(1) Notwithstanding anything to the contrary contained in any other law for the time being in force, no
juvenile in conflict with law shall be sentenced to death or life imprisonment, or committed to prison in
default of payment of fine or in default of
furnishing security :
Provided that where a juvenile who has attained the age of sixteen years has committed an offence and
the Board is satisfied that the offence committed is of so serious in nature or that his conduct and
behavior have been such that it would not be in his interest or in the interest of other juvenile in a special
home to send him to such special home and that none of the other measures provided under this Act is
suitable or sufficient, the Board may order the juvenile in conflict with law
to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order
of the State Government.
(2) On receipt of a report from a Board under sub-section (1), the State Government may make such
arrangement in respect of the juvenile as it deems proper and may order such juvenile to be kept under
protective custody at such place and on such conditions as it thinks fit :
Provided that the period of detention so ordered shall not exceed the maximum period of imprisonment to
which the juvenile could have been sentenced for the offence committed.
In Rejesh Kheton vs State of W B, 1983, it was observed that the main object of the provision contained
in Section 16 of the act is to prevent the juvenile from the contact of hardened criminals so that they are
saved from contamination.
In Sheela Barse vs U of I, AIR 1986, it was held that juveniles should not be held in jail but in Shelter
Homes.

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Observation Home - Section 8

Special Home - Section 9
Bail to Juvenile - Section 12
Protections given by the legislature and the judiciary to juvenile delinquents
Protection by Legislature - The legislature has enacted several laws for the protection of Juveniles. Most
important among them is Juvenile Justice (Care and Protection) Act, 2000.
Legal Protection
Through Juvenile Justice (Care and Protection) Act, 2000, several measures have been adopted to
ensure that a juvenile is not punished or treated like hardened criminals. Some of the measures are -
1. Hearing of cases involving juvenile by Juvenile Justice Board

2. Bail Provisions for juvenile
3. No prison term to juvenile.
4. No joint proceeding of Juvenile and Non Juvenile
5. Removal of disqualification attached to conviction
Social Protection
Juvenile Justice Act also contains measures to ensure that a juvenile in conflict of law is given
opportunities to reform.
1. Establishment of Observation and Special Home

2. Education and Training facilities
Preventive Measures
1. Several acts such as employment of juveniles in dangerous activities, forcing juveniles to beg, or
steal, or giving intoxicating substances to a juvenile, publication of names or other details of a juvenile
in conflict of law in media, have been made cognizable offences by JJA.
2. Supervision by Probation Officer to ensure that a juvenile is not influenced by bad elements.
Several other acts such as Factories Act, 1948 include provisions for protection of Juveniles.
Constitutional Provisions
Article 21A - Right to education
Article 24 Prohibition of employment of children in factories, etc. No child below the age of fourteen years
shall be employed to work in any factory or mine or engaged in any other hazardous employment.
Article 39 provides that that children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and that childhood and youth are protected against exploitation
and against moral and material abandonment.
Article 45 Provision for free and compulsory education for children
Protections given by Judiciary

Judiciary has always been very sympathetic to the cause of Juveniles. Even before appropriate laws were
enacted, Judiciary promoted directives for the protection of juveniles through its judgement. For example,
it was the judiciary, which emphasized on Education for children by making it a fundamental right under
Article 21.
Preliminary Pleas

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Q. What are the preliminary pleas that can be used to bar a trial? "Every offence shall ordinarily be
inquired and tried by court within the local limits of whose jurisdiction it was committed." Explain
the statement and state its exceptions, if any.
General Concept
When an accused appears or is brought before the court for a trial, he may raise certain pleas or
objections to avoid the trial. For example, he may plead that the court does not have jurisdiction in the
case or that the offence happened too long ago, or that he has already been tried and acquitted for the
same offence. Such pleas are meant to stop the trial from proceeding further and discharge the accused.
However, such pleas may also be raised by prosecution when the court does not have competency or
jurisdiction in the case.
Such pleas are supposed to be brought forth at the beginning of a trial or as soon as charges are framed.
However, there is no explicit direction in Cr P C regarding the timing for such pleas.
The follow are the pleas that can be raised -
1. Court without Jurisdiction - Jurisdiction of criminal courts is of two kinds. One that determines the
competency of the court to try a specific offence and the other that determines whether the offence
happened in the territory of the court, which is also known as territorial jurisdiction.
Competency of the Court to try the offence - Section 26 read with column 6 of the first schedule
determines which court can try a given offence. For example, offences against public tranquility can be
tried by any magistrate while the offence of counterfeiting a government stamp can be tried only by a
Court of Session. Similarly, only the prescribed court or magistrate has the power for all the offences
defined in IPC and other laws.
Thus, any party to the proceeding can raise the plea that the court is not competent to try the concerned
offence. Section 461 provides that it any magistrate, who is not empowered to try an offence, tries the
offender for that offence, the proceedings shall be void.
Also, an executive magistrate has no power to try for any offence.
Further, as per Section 479, no magistrate or judge can try any case in which he is a party or in which he
is interested. If a trial is initiated in violation of this rule, a plea can be raised in this regard.
Territorial Jurisdiction - This jurisdiction is determined according to Section 177 to 188 of CrPC. These
rules have been enacted mainly for the purpose of convenience of the court, the investigating agency, the
accused, and the victim. The general concept is that only the court in whose territory the offence or any
part of offence has happened, can try that offence. In simple terms, an offence committed in Mumbai
cannot be tried in a court in Delhi. However, most case are not as simple as that. For example, A hurts B
by a knife in Dewas and D dies because of the wound in Indore. In this case, both the courts in Dewas
and Indore have jurisdiction. However, if the victim B lives in Bhopal and if FIR of his death is filed in
Bhopal, can A be tried in Bhopal? If not, and if A is tried in Bhopal, A can raise a pleas to bar the trial in
Bhopal.
Any violation of the rules of territorial jurisdiction does not ipso factor vitiate the trial unless it has in fact
resulted in failure of justice. However, if a plea of territorial jurisdiction is raised in the beginning of the
trial, then such objection must be sustained and the trial must be stopped. It cannot gain legitimacy
under Section 462 in that case.
2. Time barred proceedings - Earlier, any offence committed could have been taken cognizance of after
any number of years. This caused grave injustice to the accused as important witnesses became
unavailable, or important evidence was destroyed by time. For these reasons, CrPC has now
incorporated some general rules for taking cognizance of the crimes within a specific period of their
happening. In general, the principle that offences punishable with only fine or with imprisonment up to 3

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yrs should be tried within a limited time. The provisions regarding such limitations are contains in Section
467 to 473 and an accused can take advantage of the appropriate section to raise the plea that the case
against him is barred by the prescribed period of limitation.
Section 468 contains the basic rule which provides that no court shall take cognizance of an offence
punishable with fine only or with imprisonment up to three yrs after the expiry of the period of limitation.
The period of limitations are -
1. 6 months, if the offence is punishable by fine only.
2. 1 yr, if the offence is punishable with imprisonment of a term not exceeding 1 yr.
3. 3 yrs, if the offence is punishable with imprisonment of a term not exceeding 3 yr.
These provisions are subject to any other provision which might have been created explicitly for any
particular offence.
Trial of offences of serious nature, i.e. offences which entail punishment of imprisonment of more than 3
yrs, or death, as of yet, are not barred by any time limitation.
3. Plea of autrefois acquit and autrefois convict - This means that if the offender has already been
tried for the exact same offence before and he has been either acquitted or convict in that trial, he cannot
be tried again on that offence. Art 20(2) of the constitution recognizes this principle as a fundamental
right. It says that no person shall be prosecuted and punished for the same offence more than once.
While the article gives this right only upon previous conviction, section 300 fully incorporates this principle.
4. Disabilities of the accused - Under the broad interpretation of Article 21 by Supreme Court, an
accused has a fundamental right to be represented by a legal practitioner in his trial. If he is indigent, it is
the responsibility of the state to provide a lawyer for him. Section 304 also requires the court to assign a
pleader for the accused in certain situations. If this is not done, a plea can be raised in this regard. If the
trial still proceeds, despite the objects, the trial is deemed to be vitiated.
Further, when the accused is of unsound mind and consequently incapable of making his defence, the
code requires the court to postpone the trial until the accused has ceased to be so. The accused can
raise this plea for objecting the trial.
5. Principle of issue estoppel -
6. Application of res judicata -
Offence Bail
Q. What is an offence?
General Concept of Offence

A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any law is an
offence. In general, such act which causes a violation of rights of others or cause harm to others and is so
dangerous that is also affects the society at large is designated as offence by the legislature through the
acts of the parliament. Section 2(n) of CrPC defines an offence as follows -
Section 2(n) - "Offence" means any act or omission made punishable by any law for the time being in
force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-
trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act would be an
offence if committed in India.
It is important to note that an act is not offence unless it is clearly defined as an offence by any piece of

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legislature. Thus, to be an offence, the legislature must designate it to be an offence. Several Acts and
Legislations defines such acts which constitute offences. The main among them is the Indian Penal Code.
It defines acts ranging from theft and murder to fraud and criminal breach of trust and makes them
offences. Examples of other acts which defines offences are Wildlife Protection Act, Prevention of
Corruption Act, Narcotic Drugs and Psychotropic Substances Act, Environmental Protection Act. These
Acts defines certain activities related to the focus of the Act as offences. Some Acts such as Prevention of
Corruption Act and Narcotic Drugs and Psychotropic Substances Act also specify the mode of trial for the
offences that they define, while some specify that trial for their offences will be held as per the provisions
of Cr PC.
Q. What is Bail?
The purpose of arrest and detention of a person is primarily to make sure that the person appears before
the court at the time of trial and if he is found guilty and is sentenced to imprisonment, he must be made
available to serve his sentence. However, if it is reasonably evident that the person charged with an
offence can be made available for the above mentioned purposes without keeping him imprisoned, then it
is unfair to keep him in custody until his guilt is proven. It is a violation of a person's fundamental right to
restrict the person's liberty without any just cause.
Bail is one such mechanism which is used to ensure the presence of an accused whenever required by
the court. CrPC does not define the term Bail, but essentially, Bail is an agreement in which a person
makes a written undertaking to the court. A person who is in custody, because he or she has been
charged with an offence or is involved in pending criminal proceedings, may apply to be released on Bail.
Normally, in signing a bail agreement a person undertakes that he will be present every time the matter is
in court until the proceedings are finished, will comply with any conditions set out in the agreement as to
conduct while on Bail, and will forfeit a specified sum of money if the person fails, without proper excuse,
to comply with any term or condition of the agreement. Two authorities that may grant bail are the police
and the courts. A person may be required to provide a security as well. But it is not necessary. A person
may also be let off on his own bond. In the case of Moti Ram vs State of MP, AIR 1978, SC held that a
Bail covers both release on one's own bond with or without surety.
Q. What is a Bailable and Non-Bailable offence?
An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an

offence of relatively less severity and for which the accused has a right to be released on bail. While a
non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as
a right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as
follows -
Section 2 (a) - Bailable offence" means an offence which is shown as bailable in the First Schedule, or
which is made bailable by any other law for the time being in force: and "non-bailable offence" means any
other offence.
Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply makes
those offences as bailable which are listed as so in the First Schedule of Cr P C. These offences include
offences such as obstructing a public servant from discharging his duties, bribing an election official, and
providing false evidence. Non-bailable offences include offences such as murder, threatening a person to
give false evidence, and failure by a person released on bail or bond to appeal before court. However, a
quick look at the list of bailable and non-bailable offences shows that bailable offences are of relatively
less severity.
Q. When and When not can Bail be granted?

As mentioned earlier, the purpose of Bail is to ensure the appearance of an accused before the court
whenever required. However, granting bail is not advisable in all cases. For example, a murder, if let
loose, may try to intimidate the witnesses, or he may even abscond altogether. This is very bad for the
society in general and reflects bad on the justice system. Thus, various rules and procedures have been
formulated to make sure that only the deserving are released on bail. They try to achieve a balance

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between the rights of the accused and the protection of the society and effectiveness of the justice
system.
The working of the bail system in India was highlighted in the case of Hussainara Khaton vs Home
Secretory, 1980. It came to the courts attention for the first time that thousands of people were rotting in
jails for 3 to 10 years for petty crimes which do not have punishment more than 6 months to an year. This
was because they were unable to pay bond money for bail and the courts were too backlogged to hear
their cases. In this respect, J Bhagwati observed that the courts must abandon the antiquated concept
under which pretrial release is ordered only against bail with sureties.
Thus, in general, the intention of the justice system is to give bail and not jail before the accused is
convicted. It is said that since the accused is presumed innocence, he must be released so that he can
fight for his defense. Thus, releasing a person on bail is a rule, while denying bail is an exception.
Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence or non-
bailable offence -
Bail for Bailable offences -
A person accused of a bailable offence can demand to be released on bail as a matter of right. This is
provided for by Section 436.
Section 436 - When any person other than a person accused of a non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is brought before a
court, and is prepared at, any, time while-in the custody of such officer or at any stage of the proceeding
before such court to give bail, such person shall be released on bail.
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such person, discharge
him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about his right to
get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1) specifically
provides that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide any bail
amount, must be released. If a person is unable to provide bail amount for a week, then he can be
considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of
the punishments specified for the offence.
Bail for Non-Bailable offences -
When a person is detained for a non-bailable offence, he cannot demand to be released on bail as a
matter of right. He can, however, request the court to grant bail. The provisions in this case are governed
by Section 437/
Section 437 - When any person accused of, or suspected of, the commission of any non-bailable offence
is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought
before a Court other than the High Court or Court of session, he may be released on bail. If it appears to
such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are
no reasonable grounds for believing that the accused has committed a non-bailable offence, but there are
sufficient grounds for further inquiry into his guilt, the accused shall be released on bail, or, at the
discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance.
A police officer or the court may also release a person from custody if he feels that there are any special
reasons. But he must record his reasons in writing.
Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that must be
given while giving bail in case of non-bailable offences. These are -

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1. the nature of the crime

2. the nature of the charge, the evidence, and possible punishment
3. the possibility of interference with justice
4. the antecedents of the applicant
5. furtherance of the interest of justice
6. the intermediate acquittal of the accused
7. socio-geographical circumstances
8. prospective misconduct of the accused
9. the period already spent in prison
10. protective and curative conditions on which bail might be granted.
If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not
concluded within a period of sixty days from the first date fixed for taking evidence in the case, such
person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction
of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence and before
judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the
accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution
by him of a bond without sureties for his appearance to hear judgment delivered.
If the investigation is not done within 24 hours, the arrested person must be bought before the court and if
required, the police must make a case to extend the detention. The court may extend the detention by 15
days. However, the detention cannot extend more than 60 days (or 90 days, if the offence is punishable
by death or imprisonment for life), after which the accused must be released on bail. This provision
applies for bailable as well as non-bailable offence.
Section 436 A allows a person to be released on his own surety if he has already spent half the
maximum sentence provided for the alleged crime in jail. However, this does not apply if death is one of
the punishments specified for the offence.
Conditions on Bail
As per Section 437, if any person accused of an offence punishable with 7 yrs or more of imprisonment is
released on bail, the court may impose any condition on the bail to ensure that the person will attend the
court in accordance with the bond executed by him, or to ensure that the person will not commit a similar
offence or otherwise in interest of justice.
Special Powers of Hight Court and Court of Session regarding Bail
Section 439 gives special powers to High Court and Court of Session regarding bails. These are as
follows -
1. A High Court or Court of Sessions may direct that any person accused of an offence and in custody be
released on bail. It may also impose any condition which it considers necessary. It may set aside or
modify any condition imposed by a Magistrate when releasing any person on bail.
2. 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.
3. A High Court or Court of Sessions may direct that any person who has been released on bail under this
chapter be arrested and commit him to custody.
When can bail be denied -

1. As per Section 436(2), if a person has violated the conditions of the bail-bond earlier, the court may
refuse to release him on bail, on a subsequent occasion in the same case. He can also be asked to pay
penalty for not appearing before the court as per the conditions of the previous bail.
2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary power to the

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police and and court. However, this power is not totally without any restraint. Section 437 disallows bail to
be given in the following conditions.
1. if there appears reasonable grounds for believing that the person has been guilty of an offence
punishable with death or imprisonment for life;
2. if such offence is a cognizable offence and the person has been previously convicted of an
offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he
had been previously convicted on two or more occasions of a non-bailable and cognizable offence.
The person may, however, be released on bail if such person is under the age of sixteen years or is a
woman or is sick or infirm.
3. Persons accused of Dowry Death -

Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib's case (AIR
1958) held the absence of such provision as a lacuna and recognized the power of High Court of
cancellation of bail. In the new code, as per section 437 (5) any Court which has released a person on
bail under section 437(1) or 437(2), may direct that such person be arrested and commit him to custody.
This basically cancels the bail. However, it must be noted that only the court that has given the bail can
cancel it. Thus, a bail given by a police officer cannot be canceled by a court under this section. To do so
the special power of High Court or Court of Session under Section 439 has to be invoked. The new
Section 439 explicitly gives the power to High Court and Court of Session to direct that any person who
has been released on bail be arrested and to commit him to custody.
The power given by Section 439 for cancellation has no riders. It is a discretionary power. It is not
necessary that some new events should take place subsequent to the offender's release on bail for the
Sessions Judge to cancel his bail, however, the court usually bases its decision of cancellation on
subsequent events. For example, in the case of Surendra Singh vs State of Bihar 1990, Patna HC
pointed out that a bail may be cancelled on following grounds -
1. When the accused was found tampering with the evidence either during the investigation or during the
trial
2. when the accused on bail commits similar offence or any heinous offence during the period of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem in the
society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger
Appeal Provision for Bail

It has been held that an order granting bail is an interlocutory order and so it cannot be challenged under
the revisional jurisdiction of the Session Court or High Court. In general, there is no right of appeal against
the decision of refusing the bail. However, a person can alway file for Special Leave Petition to High Court
or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of bail to special
courts.
Q. What do you understand by Anticipatory bail? When is it granted and when it may be refused?
What is the difference between the general provisions of anticipatory bail and regular bail?
It has been observed that many cases are instigated against a person just because of political motivation
or personal vendetta. They lack enough evidence and are meant to harass a person by getting him
arrested. When a person apprehends such situation he may apply to Court of Session or the High Court
under Section 438 for a direction that he be released on bail upon his arrest. This provision is commonly
known as Anticipatory Bail, i.e bail in anticipation of an arrest. Anticipatory bail is technically an incorrect

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term because a bail can be given only if a person has already been arrested. In this case, the court
directs that the person be released on bail as soon as he is arrested. Thus, it is a direction to provide bail
and not the bail itself.
Section 438 - When any person has reason to believe that he may be arrested on an accusation of
having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a
direction under this section, and that Court may, if it thinks fit, direct that in the event of such arrest, he
shall be released on bail.
While applying under this section, the person has to explain the circumstances because which he
believes he might be arrested. Mere hunch or fear is not enough. He must also provide such evidence
that shows there is a reasonable probability that he will be arrested on accusation of a non-bailable
offence. Further, the direction under this section can be given only upon a specific offence. A generic
direction or a blanket order to be released whenever the applicant is arrested and on whatever offence is
not allowed.
In granting such a direction the court takes into account the following considerations -
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been imprisoned
upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the applicant by having
him arrested.
The order may also include conditions such as the person shall make himself available for interrogation
by a police officer whenever required, the person shall not leave India, the person shall not make any
inducement, threat, or promise to any person acquainted with the facts of the case, or any other condition
that the court may think fit.
It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently to Court of
Session and High Court. Thus, a person can approach either of the courts to get this relief.
As per Section 438 A, the court may also grant an interim order and in that case an opportunity is given to
the public prosecutor present his arguments on why the applicant should not be given bail. Further, as per
Section 438 B, if the court finds it necessary, it may require the applicant to be present personally at the
time of final determination of the interim order.
A bail under the direction of this section is equivalent to the bail given under Section 437(1) and so it is
applicable until the conclusion of the trial.
Refusal of Anticipatory Bail
Although, there is no specific provision that prohibits granting anticipatory bail, there are certain situations
where such bail is normally not granted. These are -
1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes
Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused must seek
remedy under Section 437.
Some high courts have held that the grounds mentioned in Section 437 for denying regular bail are
applicable for anticipatory bail as well. Thus, a person accused of an offence that entails a punishment of
death or life imprisonment will not be given anticipatory bail.
In general, the court has a wide discretion in granting anticipatory bail. So the court may deny this relief if

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it feels that it is not in the interest of justice.
Cancellation of Anticipatory Bail

There is no specific provision that allows a court to cancel the order of anticipatory bail. However, in
several cases it has been held that when Section 438 permits granting anticipatory bail, it is implicit that
the court making such order is entitled upon appropriate considerations to cancel or recall the order.
Criminal Procedure Code

Summons
Q. What provisions are given in CrPC for compelling appearance in courts? What do you know
about Summons in this context? Describe the procedure for issue and service of a Summons.
How can a Summons be served on a govt. employee or outside local limits?
Processes for compelling appearance

To meet the ends of justice, it is critical to produce the accused and other witness or related parties
before the court whenever needed. If the accused is found guilty at the conclusion of the trial, he must be
present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be
enforced. Further, the supremacy of the law will be questionable if there is no formal process to bring the
required persons before the court. For this reason, Chapter VI (Sections 61 to 90) of CrPC provides
three ways for compelling the appearance of any person who is required to be present in the court, in the
court -
1. Summons,
2. Warrant, and
3. Proclamation for person absconding
While Summons is an order of the court to the person to appear before it, Warrant is an order of the court
given to a third person to bring the person who is required to be present in the court, in the court. Which
method is to be used in a particular situation depends on the judicial officer, who is guided by the
provisions of this code. The third method is used when the person has absconded or is in any other way
avoiding arrest, in which case the Court may publish a written proclamation requiring him to appear at a
specified place and at a specified time not less than thirty days from the date of publishing such
proclamation

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The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if
the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A
summons case is a case that is not a warrant case. Thus, the basis of classification is the seriousness of
the offence. Since summons case contains a lesser sentence, there is less probability of the accused
violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is
issued for a warrant case. However, when a summons is not productive in making a person appear
before the court, the count may issue a warrant to a police officer or any other person to forcibly produce
the required person before the court.
Summons
A Summons is a process issued by a Court, calling upon a person to appear before a Magistrate. It is
used for the purpose of notifying an individual of his legal obligation to appear before the Magistrate as a
response to a violation of the law. It is addressed to a defendant in a legal proceeding. Typically, the
summons will announce to the person to whom it is directed that a legal proceeding has been started
against that person, and that a file has been started in the court records. The summons announces a date
and time on which the person must appear in court.
A person who is summoned is legally bound to appear before the court on the given date and time. Willful
disobedience is liable to be punished under Section 174 of IPC. It is a ground for contempt of court.
As per Section 61, every summons issued by a Court under this Code shall be in writing and in duplicate.
It must be signed by the presiding officer of the Court or by such other officer as the High Court may, from
time to time, by rule direct. It must also bear the seal of the Court.
Procedure for issuing a Summons

When a request in appropriate format is made to the court for compelling the appearance for a person,
the court either rejects the request or issues a Summons. As per Section 204, if in the opinion of the
magistrate taking cognizance of the offence, there is sufficient ground for proceeding, he shall issue a
summons if it is a summons case. If it is a warrants case, he may issue a warrant or a summons as he
thinks fit. However, Section 87, empowers a magistrate to issue a warrant even if the case is a summons
case if he has reason to believe that the summons will be disobeyed. He must record his reasons for this
action.
The summons should contain adequate particulars such as the date, time, and place, of the offence
charged. It should also contain the date, time, and place where the summoned person is supposed to
appear. The standard format of a summons is given in Form 1 of Second schedule.
As per Section 205, a magistrate issuing the summons may permit the accused to appear by his lawyer if
he sees reason to do so.
Procedure for serving a Summons

CrPC describes the procedures for serving a summons on various categories of individuals - a person, a
corporate body, a government servant, and a person residing outside the jurisdiction of the court.
Section 62 describes the procedure for serving a Summons on a person as follows -

(1) Every summons shall be served by a police officer, or subject to such rules as the State Government
may make in this behalf, by an officer of the Court issuing it or other public servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or
tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a
receipt therefore on the back of the other duplicate.
In case of Danatram Karsanal, 1968, it was held that summons should not only be shown but a copy of it
be left, exhibited, delivered, or tendered, to the person summoned. In a case, where a copy was tendered
to the person, it was held that the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be summoned is employed

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abroad, the court can send summons to the concerned embassy official for the purpose of service since
the embassy official is also a public servant. Merely affixing the summon on a conspicuous part of the
house will not amount to service of the summon.
Service of summons on corporate bodies and societies (Section 63) -

Service of a summons on a corporation may be effected by serving it on the secretary, local manager or
other principle officer of the corporation, or by letter sent by registered post, addressed to the chief officer
of the corporation in India, in which case the service shall be deemed to have been effected when the
letter would arrive in ordinary course of post. In this section, "corporation" means an incorporated
company or other body corporate and includes a society registered under the Societies Registration Act,
1860.
In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held that a Branch
Manager is a local manager and if he has been served the service shall be deemed to have been effected
on the company itself.
Service when persons summoned cannot be found (Section 64) -

Where the person summoned cannot, by the exercise of due diligence, be found, the summons may be
served by leaving one of the duplicates for him with some adult male member of his family residing with
him, and the person with whom the summons is so left shall, if so required by the serving officer, sign a
receipt therefor on the back of the other duplicate. A servant is not considered to be a member of the
family within the meaning of this section.
Procedure when service cannot be effected as before provided (Section 65) -

If service cannot by the exercise of due diligence be effected as provided in section 62, section 63, or
section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part
of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court,
after making such inquiries as it thinks fit, may either declare that the summons has been duly served or
order fresh service in such manner as it considers proper.
The service of summons on a witness can also be done by post. As per Section 69 -
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court issuing a
summons to a witness may, in addition to and simultaneously with the issue of such summons, direct a
copy of the summons to be served by registered post addressed to the witness at the place where he
ordinarily resides or carries on business or personally works for gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be
made by a postal employee that the witness refused to take delivery of the summons has been received,
the Court issuing the summons may declare that the summons has been duly served.
Service of summons on a Govt. employee (Section 66) -

Section 66 details the procedure for serving a summons on a Government employee as follows -
(1) Where the person summoned is in the active service of the Government, the Court issuing the
summons shall ordinarily sent it in duplicate to the head of the office in which such person is employed;
and such head shall thereupon cause the summons to be served in the manner provided by section 62,
and shall return it to the Court under his signature with the endorsement required by that section.
(2) Such signature shall be evidence of due service.
Service of summons outside local limits (Section 67) -

When a Court desires that a summons issued by it shall be served at any place outside its local
jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local
jurisdiction the person summoned resides, or is believed to be there, served.
Unit1 Organization Of Police

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Q. Describe the organization of police, prosecutor, defense counsel and prison authorities and
their functions, duties, and powers.
Police
The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say anything
about the constitution of Police. It assumes the existence of police and devolves various powers and
responsibilities on to it.
Functions -
As per The Police Act, 1861, the police force is an instrument for the prevention and detection of crime.
Organization -
Every state establishes its own police force which is formally enrolled. The force consists of such number
of officers and men and is constituted in such manner as the state govt. may decide from time to time.
The overall administration of police in the entire state is done by Director General of Police. The
administration of police in a district is done by District Superintendent of Police under the general control
and direction of District Magistrate who is usually the Collector of the district. Every police officer
appointed to the police force, other than Inspector General of Police and District Superintendent of Police,
receives a certificate in prescribed form by virtue of which he is vested with the powers, functions and
privileges of a police officer.
The Police Act, 1888 also empowers the Central Govt to create special police districts and to extend the
jurisdiction of police of any state to that district. The Police Act 1949, creates a police force for Union
Territories.
Powers -
1. The Cr P C confers specific powers on the members of police force who are enrolled as police officers.
These powers include power to make an arrest, search, and investigate. Wider powers have been given
to police officers in charge of a police station. As per Section 2(s), police station means any post or place
that is generally or specially designated by the state govt as a police station. Further, as per Section
2(o) officer in charge of a police station includes the officer who is present at the police station and is next
in rank to the police officer in charge, if he is on leave or is absent. This only increases the importance of
the police officer in charge of a police station.
2. Section 36 of CrPC specifies that officers of police who are superior in rank to police officer in charge
of a police station can exercise all the powers of that police officer. In the case of State of Bihar vs J A C
Saldanha SCC 1980, SC held that if the Inspector General (Vigilance) is an officer superior to the officer
in charge of the police station he can exercise the powers of that officer through out the territory to which
the superior officer has been appointed, which, in this case is the entire territory of Bihar.
Duties -
Prosecutor
A crime is a wrong not only against an individual but is also against the society. It is because of this
reason that the state, which represents the collective of people, participates in the criminal trial of an
accused, specially if the crime is of cognizable nature. Public Prosecutor or Assistant Public Prosecutor is
the state counsel for such trials. As per section 2(u), Public Prosecutor means any person appointed
under Section 24 and includes any person acting under the directions of the public prosecutor. Section
24 of CrPC specifies the rules for appointment of Public Prosecutor. A person shall be eligible to be
appointed in High Court as Public Prosecutor if he has been in practice as an advocate for not less than
seven years. The appointment can be made only after consultation with the High Court. Further, the
central govt. can appoint a Public Prosecutor for conducting in a high court any prosecution, appeal, or
other proceeding on behalf of the Central Govt.
Assistant Public Prosecutor are appointed under Section 25. It authorizes the State Govt. to appoint one

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or more APPs for every district for conducting any case in Court of Magistrates. No police officer is
allowed to be appointed as APP.
Duties -
Duty of a public prosecutor mainly consists in conducting the prosecution on behalf of the state. His goal
is not merely to produce a conviction but the help the court arrive at a just decision. He also appears as
the state counsel in criminal appeals, revisions, and such other matters in the Session Courts and High
Court. It is important to note that he does not appear on behalf of the accused.
Powers -
1. As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the authority to appear and
plead before any court in any case entrusted to him.
2. As per Section 321, he can withdraw from the prosecution against any person with the consent of the
court.
According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session Courts and
the High Courts and Assistant Public Prosecutors are appointed for conducting prosecution in
Magistrates' Courts. As per prevailing practice, in respect of cases initiated on police reports, the
prosecution is conducted by the APP and in cases initiated on a private complaint the prosecution is
either conducted by the complainant himself or by his duly authorized counsel.
Defense Counsel
As per Section 303, any person accused of an offence before a Criminal Court has a right to be defended
by a pleader of his choice. Such pleaders are not in regular employment of the state and a paid
remuneration by the accused person. Since, a qualified legal practitioner on behalf of the accused is
essential for ensuring a fair trial, Section 304 provides that if the accused does not have means to hire a
pleader, the court shall assign a pleader for him at state's expense.
At present there are several schemes through which an indigent accused can get free legal aid such as
Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board, and Supreme Court Senior
Advocates Fee Legal Aid Society. The Legal Services Authorities Act, 1987 also provides free legal aid
for the needy.
Prison Authorities
CrPC presumes the existence of Prisons and Prison authorities. The code empowers magistrates and
judges under certain circumstances to order detention of under trial prisoners in jail during the pendency
of proceedings. The code also empowers the courts to impose sentences of imprisonment on convicted
persons and to send them to prison authorities. However, the code does not make specific provisions for
creation and administration of prison authorities. These matters are dealt with in separate acts such as
The Prisons Act 1894, The Prisoners Act, 1900, and the Probation of Offenders Act 1958.
Warrant
Q. What do you understand by Warrant of Arrest? Describe the procedure for issue and execution
of a Warrant of Arrest. When can a court issue a warrant in a case in which it is empowered to
issue a summons? When can a warrant be issued for recovery of a fine?
Introduction
To meet the ends of justice, it is critical to produce the accused and other witness or related parties
before the court whenever needed. If the accused is found guilty at the conclusion of the trial, he must be
present in person to receive the sentence. Also, his presence is necessary if imprisonment is to be
enforced. Further, the supremacy of the law will be questionable if there is no formal process to bring the
required persons before the court. For this reason, Chapter VI (Sections 61 to 90) of CrPC provides two
ways for compelling the appearance of any person who is required to be present in the court, in the court

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- Summons and Warrant. While Summons is an order of the court to the person to appear before it,
Warrant is an order of the court given to a third person to bring the person who is required to be present
in the court, in the court. Which method is to be used in a particular situation depends on the judicial
officer, who is guided by the provisions of this code.
The code classifies all criminal cases into summons cases and warrant cases. A case is a warrant case if
the offence is punishable by death, imprisonment for life or imprisonment for more than two years. A
summons case is a case that is not a warrant case. Thus, The basis of classification is the seriousness of
the offence. Since summons case contains a lesser sentence, there is less probability of the accused
violating the court order. Therefore, generally, a summons is issued for a summons case and a warrant is
issued for a warrant case. However, when a Summons is not productive in making a person appear
before the court, the count may issue a warrant to a police officer or any other person to forcibly produce
the required person before the court.
Warrant of Arrest
A warrant of arrest is a written authority given by a competent magistrate for the arrest of a person. It is a
more drastic step than the issue of a summons. It is addressed to a person, usually a police officer, to
apprehend and produce the offender in front of the court.
Essential Elements of a valid warrant -
1. The warrant must clearly mention the name and other particulars of the person to be arrested. As
per Section 70(1), every warrant of arrest shall be in writing. It must be signed by the presiding officer of
the court and must bear the seal of the court. As per section 70(2), a warrant remains in force until it is
canceled or is executed. Normally, Form 2 of Second schedule is used to write a warrant.
2. It must show the person to whom the authority to arrest has been given. As per Section 72, a warrant
is normally directed to one or more police officers but, if necessary, the court may direct it to any other
person or persons. Further, section 73 provides that a magistrate may direct a warrant to any person
within his jurisdiction for the arrest of any escaped convict, proclaimed offender, or of any person who is
accused of a non-bailable offence and is evading arrest.
3. It may include a direction that if the person arrested under the warrant executes a bond and gives
security for his attendance in court, he shall be released. Warrant with such a direction is called as
bailable warrant of arrest.
4. It must clearly specify the offence.
Procedure for issuing a Warrant

When a request in appropriate format is made to the court for compelling the appearance for a person,
the court either rejects the request or issues a Warrant. As per Section 204, if in the opinion of the
magistrate taking cognizance of the offence, there is sufficient ground for proceeding, and if the cases is a
warrant case, he may issue a warrant or if he thinks fit, he may issue a summons.
Further, Section 87, empowers a magistrate to issue a warrant even if the case is a summons case if he
has reason to believe that the summons will be disobeyed. He must record his reasons for this action.
Procedure for executing a Warrant

As per section 75, A warrant can be executed by showing the substance of the warrant to the person
being arrest. If required, the warrant must be shown to the person arrested. Section 76 mandates that the
person executing the warrant must produce the arrested person before the magistrate without
unnecessary delay and within 24 hours excluding the time taken for travel from the place of arrest to the
magistrate.
As per section 77, a warrant may be executed anywhere in India. Section 78specifies that if a warrant is
to be executed outside the local jurisdiction of the court issuing it, such court may send it to the Executive
Magistrate or District Superintendent of Police or Commissioner of Police within the local limits of whose
jurisdiction it is to be executed instead of directing it to the police officer within the jurisdiction of the
issuing court.
Section 79 specifies the procedure for executing a warrant outside the local jurisdiction of the issuing
court as follows -

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(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction of the Court
issuing the same, he shall ordinarily take it for endorsement either to an Executive Magistrate or to a
police officer not below the rank of an officer in charge of a police station, within the local limits of whose
jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement shall be
sufficient authority to the police officer to whom the warrant is directed to execute the same, and the local
police shall, if so required, assist such officer in executing such warrant.
(3)Whenever there is reason to believe that the delay occasioned by obtaining the endorsement of the
Magistrate or police officer within whose local jurisdiction the warrant is to be executed will prevent such
execution, the police officer to whom it is directed may execute the same without such endorsement in
any place beyond the local jurisdiction of the Court which issued it.
When can a court issue a Warrant in a case in which it is empowered to issue summons
As per Section 87 a court may issue a warrant even in a case in which it is empowered only to issue a
summons. A court can issue a warrant either before issuing a summons or even after issuing a summons.
It may do so if it has reason to believe that the person has absconded or that the person will not obey the
summons. Further, a court may issue a warrant if the summons was duly served and still the person fails
to appear before it at the required date and time without any reasonable excuse. The court must record its
reasons to do so.
It must be noted that Section 204 empowers the court to issue a summons even for a warrants case if it
believes that a summons is sufficient to enforce the appearance of the person before it, while Section
87 empowers the court to issue a warrant even in a summons cases, if reasonable causes exist. In
general, a warrant ought not to be issued where a summons can serve the purpose and care should be
exercised by the court to satisfy itself that upon the materials present before it, it was necessary to issue a
warrant. In Anoop Singh vs CheeluAIR 1957, it was held that this applies to an accused as well as a
witness. But where the court has no power to issue a summons, it cannot issue a warrant under this
section. In P K Baidya vs Chaya Rani AIR 1995, it was held that when a witness avoids his appearance
in spite of the summons being appropriately served, court can take steps for securing his presence under
this section.
When can a warrant be issued for recovery of a fine

Section 421 - Warrant for levy of fine-
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action
for the recovery of the fine in either or both of the following ways, that is to say, it may,-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging
to the offender;
(b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land
revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be
imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall
issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do,
or unless, it has made an order for the payment of expenses or compensation out of the fine under
Section 357.
(2) The State Government may make rules regulating the manner in which warrants under Clause (a) of
sub-section (1) are to be executed, and for the summary determination of any claims made by any person
other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1), the Collector
shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if
such warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

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Crpc Notes - Has brief details on Crpc questions and answers

Criminal Law - II (Karnataka State Law University)

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Proclamation for person absconding (Section 82(1)) -

Procedure for Publication of the Proclamation (Section 82(2)) -

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Section 85 - Release, Sale, and restoration of the property -

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(Note - Arrest in case of Warrant is discussed in another question.)

Arrest without warrant

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Arrest by Private person

Procedure on arrest by private person -

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Arrest how made -

Rights of an Arrested person (GBMLLIM)

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Consequences of non-compliance with the provisions relating to arrest -

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Time and Place of the offence

Manner of committing the offence

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Effects of errors in a Charge

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Difference between Charge and FIR

Section 218 says thus -

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Exception 3 - Offences of criminal breach of trust or dishonest misappropriation of property and

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General Provisions of Bonds - ( ABNRI DDFFIMAL)

Procedure on forfeiture of a Bond

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Issue of Process (Section 204)

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Dismissal of a Complaint - Section 203

Criminal Procedure Code

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Differences and Short Notes.

Summons Case and Warrant Case

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When an offence is compounded, it is equivalent to an acquittal.

Compoundable Offence Section 320 Non Compoundable Offence

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compromise into account while delivering judgment.

Information and Complaint

Sufficient grounds for commitment and Sufficient grounds for conviction

Sufficient grounds for commitment Sufficient grounds for conviction

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offence is exclusively triable by Court of Session, the

Discharge and Acquittal

Cognizable offence and Non-cognizable offence

Cognizable offence Non Cognizable offence

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causing hurt, dishonest misappropriation of

First Information Report

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Evidentiary Value of FIR