General provisions for inquiries and trials

GENERAL PROVISIONS AS TO
INQUIRIES AND TRIAL
Final Draft Submitted In Partial Fulfillment Of Course Titled

Criminal Law - II For Completion Of B.A LL.B. (Hons.) In Academic Year
2020-21
SUBMITTED TO- SUBMITTED BY –
MISS PREETI ANAND KUMAR UTSAV
FACULTY OF CRIMINAL LAW - II ROLL NO. - 2123
4th Semester, B.A.LL.B.(Hons.)
31 MARCH 2021
Chanakya National Law University

Nyaya Nagar, Mithapur, Patna (Bihar)
LABOUR LAW - I Page 1
DECLARATION PAGE
I Kumar Utsav, student of B.A. LL.B. (Second year) in Chanakya National Law University declare that
the research project entitled “GENERAL PROVISION AS TO ENQUIRIES AND TRAILS” submitted
by me for the fulfillment of “CRIMINAL LAW - II” course is my own work. This project has not been
submitted for any other Degree / Certificate / Course in any Institution / University.
KUMAR UTSAV
B.A. LL.B. (Hons.)
Roll No- 2123
2|Page GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

ACKNOWLEDGEMENT
I am highly elated to have worked on my research topic “General Provisions as to Enquiries and
Trails” under the guidelines of MISS PREETI ANAND, (Faculty of CRIMINAL Law - II). I am
very grateful to her for the proper guidance.
I would like to take this opportunity to express my profound gratitude and deep regard to her for her
exemplary guidance, valuable feedback and constant encouragement throughout the duration of the
project.
Her valuable suggestions were of immense help throughout my project work.
Her perceptive criticism kept me working to make this project in a much better way. Working under him
was an extremely knowledgeable experience for me.
I would also like to thank all my friends and my seniors. Apart from all these I would like to give special
regard to the librarian and other staffs of the library of my university who made a relevant effort
regarding to provide the materials to my topic and also assisting me.
Finally, I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

TABLE OF CONTENT
1. Introduction………………………………………………………………………..05
1.1 Aims and objective of the project…………………...............................................................06

1.2 Hypothesis………………………………………………………………..............................06
1.3 Research Question…………………………………………………………..........................06
1.4 Limitation of the project…………………………………………………..............................06
1.5 Sources of Data………………………………………………………………………………06
2. Persons once convicted or acquitted not to be tried for same offence (Sec. 300)…..08
3. Appearance by public prosecutor (Sec. 301)………………………………………..08
4. Permission to conduct prosecution (Sec. 302)………………………………………12
5. Right of the accused person to be defended and legal aid to accused at state expense (Sec.
303 – Sec 304)……………………………………………………………………….13
6. Procedure when corporation or registered society is an accused (Sec. 305)………...13
7. Provisions as to pardon (Sec. 307, Sec.307 & Sec.308)……………………………..16
8. Power to postpone or adjourn proceedings (Sec. 309)………………………………16
9. Local Inspection (Sec. 310)………………………………………………………….18
10. Power to summon material witness, or examine person present (Sec. 311)…………18
11. Power of Magistrate to order person to give specimen signature or handwriting (Sec. 311 -A)
12. Power to examine the accused (Sec. 313)……………………………………………19
13. Oral arguments and memorandum of arguments (Sec. 314)…………………………19
14. Accused person to be competent witness (Sec. 315)…………………………………22
15. No influence to be used to induce disclosure (Sec. 316)……………………………..22
16. Provision for inquiries and trial being held in the absence of accused in certain cases (Sec.
317)……………………………………………………………………………………23
17. Procedure where accused does not understand proceedings (Sec. 318)………………23
18. Power to proceed against other persons appearing to be guilty of offence (Sec. 319)…24
19. Compounding of offences (Sec. 320)………………………………………………….24
20. Withdrawal from prosecution (Sec. 321)………………………………………………25
21. Procedure in cases which Magistrate cannot dispose of (Sec. 322)……………………25
22. Procedure when, after commencement of inquiry or trial, Magistrate finds case should be
committed (Sec 323)……………………………………………………………………26
23. Trial of persons previously convicted of offences against coinage, stamp law or property
(Sec. 324)………………………………………………………………………………27
24. Procedure when Magistrate cannot pass sentence sufficiently severe (Sec. 325)……..27
25. Conviction or commitment on evidence partly recorded by one Magistrate and partly by
another (Sec. 326)………………………………………………………………………28
26. Court to be open (Sec. 327)……………………………………………………………..29
Conclusion …………………………………………………………………………………………31
Bibliography…………………………………………………………………………………32

(3).INTRODUCTION
Chapter XXIV, Section 300-327 talks of the general provisions to be followed for inquiries and trials.
Section 300 talks that a person once convicted or acquitted not to be tried for same offence. However,
the dismissal of a complaint, or the discharge of the accussed is not an acquittal for the purposes of this
section. Section 301 states that the public prosecutor or Assistant public prosecutor in charge of a case
may appear and plead without any written authority before any court in which the case is under inquiry,
trial or appeal.
Section 302 provides that the magistrate inquiring into or trying a case may permit the prosecution to the
conducted by any person other than a police officer below the rank of Inspector but the general rule
stays that no person other than the Advocate General or a Public Prosecutor or Assistant Public
Prosecutor shall be entitled to do so without any permission. This part of the code talks about right o the
accussed, legal aid to accussed at State expenses in certain cases, procedure when after commencement
of inquiry or trial, magistrate finds cases should be committed, trials of person previously convicted of
offences against coinage, stamp law or property , court to be open, procedure when Magistrate cannot
pass sentence sufficiently severe.

(3.1) AIMS AND OBJECTIVE OF THE PROJECT
(i) The researcher’s aim for making this project is to study the general provision as to enquiries
and trails.
(ii) The project work aims at finding the relevant case laws related to chapter 24 of the code of
criminal procedure.
(3.2) HYPOTHESIS
The researcher believes that these general p;rovisions provide the basic rights to an accussed.
(3.3) RESEARCH QUESTION
(i) What is meant by principle of double jeopardy ?
(ii) What if a case has been tried by a magistrate who is not having the jurisdiction to try such
cases ?
(iii) What are the powers to examine an accused ?
(iv) What are the provision regarding compounding of offences ?
(3.4) LIMITATION OF THE PROJECT
Owing to the large number of topics that could be included in the project, the scope of this research
paper is exceedingly vast. However in the interest of brevity and due to certain restrictions like that of
area limited to Bihar and limitation of time etc., the researcher will not be able to deal with the topic in
great detail.
(3.5) SOURCES OF DATA
Primary Sources – Case laws, constitutional provision, legislative provision.

Secondary Sources – Books on Code of Criminal Procedure, websites, journals, articles, magazines etc.

(2) SECTION 300 – PERSON ONCE CONVICTED OR ACQUITTED NOT TO BE TRIED FOR
SAME OFFENCE
The section embodies the common law principle contained in the doctrine of autre fois acquit and autre fois
convict which means that if a person is tried and acquitted or convicted of an offence he cannot be tried again for
the same offence or on the same facts for any other offence. This doctrine is also incorporated in Article 20 (2) of
the Constitution. Thus the rule is based on the principle that a person may not be put twice in jeopardy for the
same offence. The six illustrations given in Section 300 explain the different situations, which constitute ‘same
offence’ for invoking the provisions of this section. In order to bar the trial of a person already tried, it must be
shown that—
(1) He had been tried by a competent Court for the same offence or one for which he might have been charged or
convicted on the same facts;
(2) That he had been convicted or acquitted at the trial; and
(3) That such conviction or acquittal is in force.
So the first requirement for the applicability of this section is that the earlier trial should have been before a
competent Court which must have recorded a verdict of acquittal or conviction.
The word “tried” used in this section does not necessarily mean tried on merits. Thus compounding of an offence
under Section 320 or a withdrawal by. the Public Prosecutor under Section 321, would result in an acquittal of the
accused even though he was not tried on merits such an acquittal would bar subsequent trial of the accused on the
same facts.
If in the earlier trial the Court was not competent to hear and decide the case, the – provision of this section will
not be attracted. Thus where the conviction of a person and the sentence passed on him was set aside for want of
proper sanction, it cannot be said that there was a proper trial and, therefore, the decision of that trial cannot
operate as a bar under Section 300 of the Code. The explanation, incorporated in this section makes it clear that
the discharge of the accused or the dismissal of the complaint against him does not amount to his acquittal to bar
his subsequent trial on the same facts. This section further requires that in order to bar the second prosecution and
the consequential punishment there under the trial must be for the ‘same offence’. This in other words, means that
the two offences should be identical. The section therefore, does not bar trial of different offences which may
result from the commission or omission of the same act. Thus where the accused was tried for the offence of
breach of trust as a public servant and acquitted he can subsequently be tried for the same offence in respect of
another misappropriation of a sum during the same period.1
Again, where the charge on the second trial is for a different offence, the trial is not barred by Section 300. For
instance, a conviction for the offence of affray under Section 160, IPC on a prosecution initiated by the police was
held to be no bar to a subsequent trial for causing hurt under Section 323, IPC on a complaint by the party injured.
So also, the offence under Section 409, IPC and Section 14 of the Provident Funds Act are not same offences.
Likewise the offence under Section 105 of the Insurance Act and Section^09, IPC cannot be deemed to be the
same offences.2
Section 300 and Double Jeopardy under Article 20(2) of the Constitution:
Section 300 CrPC and Article 200 (2) of the Constitution embody the well known principle of criminal
jurisprudence that “no one should be put in peril twice for the same offence”. The only difference between the two
provisions is that the former embodies both principles known as autrefois acquit and astrefois convict, while the
1
Supinder Kaur. Criminal Procedure Code (New Delhi: Lexis Nexis, 2014) 515.
2
Ibid.
latter only embodies the principle of astrefois convict. Thus under Article 20 (2) of the Constitution, the bar is
against a person being subjected to punishment twice for the same offence. It, therefore, follows that if at the
previous trial, a person was acquitted; there will be no bar to his being tried again for the same offence under this
Article.
The Supreme Court, in P.V. Mohammad Barmay Son v. Director of Enforcement has held that an offence
under Section 81(2) of FERA, 1973 and evasion of excise duty under the Sea Customs Act, 1922 were two
different offences and, therefore, the doctrine of ‘double jeopardy’ had no application in this case.
The facts of the case in brief were that the appellants purchased a few engines from foreign countries and made
payment in foreign currency without clearance of the Reserve Bank of India thus contravening Sections 5 (1) (a)
and (b) of FERA (Act 7 of 1947) which was later repealed and replaced by FERA (Act 46 of 1973).
The latter Act provided for higher penalty than the former one. The contravention was detected in 1974 after the
replaced Act had come into force. Meanwhile the appellants were also proceeded against for evasion of excise
duty under the Sea Customs Act, 1922 for which they were subsequently acquitted. In appeal against the
imposition of punishment under the FERA, 1973, the Supreme Court upheld the punishment holding it perfectly
legal and valid under Section 81(2) of FERA and Section 6 of the General Clauses Act, 1897, the appeal was,
therefore, dismissed.
The question of validity of prosecution and punishment for same offence more than once came up for
consideration before the High Court of Kerala in Abdul Salam v. State of Kerala. The Court held that where a
person was prosecuted and punished in a foreign country for an offence under the law in force in that country, he
could be prosecuted in India for the commission of an offence under law in force in India. The reason being that
the prosecution in India is not for the act which was made an offence under the law in force in foreign country,
but it was for the act which was an offence as per the Indian law.
The Court emphasised that in order to attract the provision contained in Article 20 (2), identity of the offence is an
essential prerequisite. Therefore, the previous prosecution and connection or acquittal does not bar a subsequent
prosecution and trial for a separate and distinct offence even though the two offences arise out of the same facts.
Principle of Issue – Estoppel:
In fact, the principle of issue estoppel is not a sufficient ground which can bar a subsequent trial under Section
300 CrPC. It was in the case of Pritam Singh v. State of Punjab, that certain observations were made by the
Supreme Court relying upon the Privy Council’s decision in Samashivan v. Public Prosecutor Federation of
Malaya, wherein Lord Dermot had observed that the maxim res judicata pro veritate acceptor is no less applicable
to criminal proceedings than to civil proceedings. The facts of Pritam Singh’s case, illustrate the application of the
role of issue – estoppel vis-a-vis Section 300, CrPC.3
In that case the accused was charged under Section 19(F) of the Indian Arms Act for possessing a revolver
without a licence and was acquitted as the prosecution could not prove that he was in possession of a revolver. In
a subsequent trial of the accused for murder, it was held that the possession of revolver cannot be proved against
the accused as the prosecution was bound by earlier decision on the point and was estopped from giving evidence
to prove the contrary.
The principle of issue-estoppel subsequently found support in a number of decisions of the Supreme Court. The
rule may be enunciated thus:
3
N.V. Paranjape. The Code of Criminal Procedure (Allahabad: Central Law Agency, 2006) 317.
“Where an issue has been tried by a competent Court on a former occasion and the finding of fact has been
reached in favour of the accused, such finding would constitute an estoppel or res judicata against the prosecution;
not as a bar to the trial and conviction of the accused for different or distinct offences but as precluding the
reception of evidence to disturb the finding of fact when the accused is tried subsequently even for a different
offence which might be permitted by law.” (i.e. Section 300(2) CrPC). It must, however, be stated that in order to
invoke the rule of issue-estoppel it is necessary that the parties in the two trials must be the same and fact-in-issue
proved or not in the earlier trial must also be identical with the one which is raised and agitated in the subsequent
trial.
Pointing out the distinction between issue-estoppel and double jeopardy, the Apex Court has observed, that the
principle of issue estoppel is different from the rule of double jeopardy or autre fois acquit as embodied in Section
300, CrPC. The principle of issue-estoppel is altogether a different principle where an issue of fact has been tried
by a competent Court on a former occasion and a finding has been reached in favour of the accused.
Such finding would operate as an estoppel or res judicata against the prosecution, not as a bar to the trial or
conviction of the accused for a different or distinct offence, but as precluding of evidence to disturb the earlier
finding when an accused is tried subsequently for a different offence which might be permissible by Section 300
(2) of the Code. For raising the plea of issue-estoppel there must be inevitably the same issue in the earlier
proceedings between the same parties. Thus, any issue as between the State and one of the accused person in the
same litigation cannot operate as binding upon the State with regard to another accused.
Relevant Cases:
Where a complaint filed under Section 20 of the N.D.P.S. Act by an Excise Inspector against the accused was
dismissed on the ground that he was not legally competent to file the complaint, a subsequent complaint on the
same facts filed by the competent authority against the same accused was held to be lawful and valid as there was
no violation of Section 300 (1) of Cr.P.C.
The Supreme Court in State of Karnataka (through C.B.I.) v. C. Nagrajaswamy, held that Section 300 of the
Code does not bar a second trial where the earlier prosecution was without proper sanction under Section 197, Cr.
P.C. The Trial Court was not bound to record judgment of conviction or acquittal.
Even if the same was recorded, it could be said to have been rendered illegally without jurisdiction. Subsequent
trial with proper sanction was not barred in such a case. Therefore, the order of the High Court quashing fresh
charge-sheet on ground that no fresh trial permissible was liable to be set aside with direction to dispose of the
matter expeditiously.
Where a complaint against the accused was dismissed for non-prosecution and consequently the accused was
discharged, it was held that second complaint was not barred by Section 300 as discharge does not r mount to an
acquittal for the purpose of this Section.
Where a writ petition was earlier filed following confiscation of gold under Sections 71 and 74 of the Gold
(Control) Act, 1968, it was held that the decision in writ petition will not operate as issue-estoppel in subsequent
criminal prosecution under Section 85 (1) of the Gold Control Act for possession of undeclared primary gold.
A person against whom security proceedings are taken under Section 107, CrPC, similar proceedings against him
may be initiated subsequently because he cannot be said to have committed an offence. So also dismissal in
default of an application under Sections 125 and 126, CrPC does not amount to acquittal of an offence and,
therefore, a second application on the facts is no bar under Section 300 of the Code.
In Balbir Singh v. State of Delhi accused was charged for offences under TADA Act but the proceedings were
found to be futile in absence of sanction as required under the Act. Though the order passed by the concerned
Court in that regard used the word ‘acquittal’ but in essence it could only operate as an order of ‘discharge’.
Therefore, subsequent filing of charge sheet against the accused on obtaining requisite sanction does not amount
to violation of provisions contained in Section 300, Cr.P.C.
10 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

(3) SECTION 301 -- APPEARANCE BY PUBLIC PROSECUTORS
The provisions of section 301 are in accordance with the concept of fair trial in article 21 of the constitution of
India.4 The Public Prosecutor or Assistant Public Prosecutor may appear and plead without any written authority
such as Vakalatnama or a warrant of attorney, before any Court in which the case is under enquiry, trial or appeal.
The Public Prosecutor may avail the assistance of a pleader engaged by a party but such pleader will act under the
directions of the Public Prosecutor and the management of the case shall solely vest in the Public Prosecutor.
Where the pleader engaged by the private party desires to submit written arguments after the evidence is closed,
he shall have to obtain prior permission of the Court for this purpose. Thus where the District Attorney did not
cross-examine the defence witnesses but the counsel for the complainant applied for cross-examining the defence
witnesses the High Court held that such counsel was only to assist the Public Prosecutor and would not conduct
the prosecution nor he could plead, though he could act under the directions of the Public Prosecutor and file
written arguments.
The High Court of Andhra Pradesh, in Thadi Narayana v. State, held that where the Advocate-General of the
State was called upon to appear in any case of special importance, the Public Prosecutor or the Assistant Public
Prosecutor cannot be said to be separately representing the case on behalf of the State while Advocate-General
merely acting as an amicus curiae.
(4) SECTION 302 -- PERMISSION TO CONDUCT PROSECUTION
The section commands that no person other than the Advocate-General or Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor is entitled to conduct a prosecution without the permission of the
Magistrate.
Thus a private person’s or complainant’s Advocate has no right to conduct the prosecution without the permission
of the Magistrate. A police officer even if he is not below the rank of an Inspector shall not be permitted to
conduct the prosecution if he has taken part in the investigation into the offence for which the accused is being
tried.
Where the investigating officer conducts the proceedings without the permission of the Magistrate, it amounts to
an illegality which is not curable under Section 465 of the Code. In the case of Rashida Kamaluddin Syed v.
Seikh Saheblal Mardan the question for decision before the Apex Court was whether permission to continue
prosecution be granted to legal heirs of the deceased complainant. In this case, there was complaint against the
appellant for offence punishable under Sections 406 and 420 of I.P.C.5
The complainant died pending trial. The sons of the deceased filed application for permitting them to continue
prosecution which was allowed and became final. But the application for discharge filed by the appellants only on
the ground that no prima facie case was made out against them was dismissed. Held, the permission granted to the
heirs (sons) of the deceased complainant was not illegal and there could be no interference under Article 136 of
the Constitution. It was further held that the jurisdiction of criminal Court could not be ousted for mere pendency
of civil suit.
Sub-section (2) provides that any person conducting the prosecution may do so personally or by a pleader.
4
Bhopal Singh v. State of Rajasthan, 2001 Cr LJ (DB) (Raj).
5
Ibid.
(5) SECTION -- 303 RIGHT OF PERSON AGAINST WHOM PROCEEDINGS ARE
INSTITUTED TO BE DEFENDED AND SECTION 304 – LEGAL AID TO ACCUSED AT
STATE EXPENSE IN CERTAIN CASES
Section 303 of the Code of Criminal Procedure, 1973 provides that any person accused of an 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.
The Code confers on the accused person a right to consult and to be defended by a legal practitioner of his choice.
The right guaranteed by this provision is indispensable to the fair administration of over adversary system of
criminal justice. An accused has a right to be defended by a counsel of his choice not only at the trial but at the
hearing of the appeal also. There is no provision in this section to be represented by a person other than a lawyer.
However, under Section 2(q) of the Code, an accused person cannot claim as of right to be represented by a
private person, but he may be represented by such person with the permission of the Court.6
The right to counsel would however remain empty if the accused due to his poverty or indigent conditions has no
means to engage a counsel for his defence. Article 21 of the Constitution of India implicitly requires a State to
make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of
reasons such as poverty, indigence or incommunicado situation. Article 39-A of the Constitution of India provides
that the State shall secure that the operation of the legal system promotes justice on a basis of equal opportunity
and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure
that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. To
an extent the Code provided legal aid to accused at State expense in certain cases in Section 304.
SECTION 304
The section confers on the accused the right to legal aid at the expense of the State Government in cases triable by
a Court of Session and empowers the State Government to extend this facility to other cases. The section
underlies the principle that indigence of the accused person should not be a ground for denying fair trial or equal
justice. The Court, before whom the accused appears, is under a duty to inform the accused that if he is unable to
engage the services of a counsel on account of poverty or indigence, he is entitled to obtain free legal service aid
and under the Legal Services Authorities Act, 1987. With the enactment of this Act, the right to legal service for
defence of indigent accused persons has been recognised far beyond the scope of Section 304 and it extends to
appeal against the order of conviction of such accused in the High Court as also an appeal against his acquittal
filed by the State in the High Court.
The Supreme Court in Sukh Das v. State of Arunachal Pradesh has held that a conviction of the accused in a
trial in which he was not provided legal aid would be set aside as being violative of Article 21 of the Constitution.
But where the accused pleads guilty without the assistance of a counsel under the legal aid scheme and was
convicted by the Magistrate it was held that the trial and conviction was not vitiated because the Magistrate was
fully satisfied that the plea was voluntary, true and genuine.7
Where in a criminal appeal the council appointed by the Court for the accused does not turn up at the time of
hearing and the appeal is disposed of without hearing him, the case rightly deserved to be remanded for fresh
hearing of the appeal. Where in a sessions trial the accused made a request for being provided the services of a
particular lawyer named by him at the State expenses as envisaged under Section 304 CrPC but the State provided
another lawyer to defend him, the High Court of Madhya Pradesh held that it is not denied that an accused has the
right to be defended by the lawyer of choice but when it comes to the appointment of lawyer for the defence of
accused at State expense, it would be the choice of the Court and not of the accused to provide a lawyer for
defending him. The Court is under no obligation to provide to the accused, the lawyer of his choice if he wants to
be defended at the expenses of the State Government.
6
7
Ibid.
In Rajiv Gandhi Murder case, the lawyers defending the indigent accused persons who were appointed by the
State were paid Rs. 50/- a day as their fees as per Rule 9 of the Legal Aid to Poor Accused Rules, 1976. They
moved the High Court to raise their fees making it at par with the prosecution lawyers on the principle of equal
pay for equal work. Rejecting their petition, the High Court of Madras held that the rule of equal pay for equal
work was not attracted in the instant case because the criteria for the appointment of prosecution lawyer is
different from those of defence lawyers appointed under the legal aid services scheme for the indigent persons.
The Court further held that the fees payable to each defence lawyer appointed for to defend the indigent accused
persons appeared to be quite reasonable, just and fair in the circumstances and therefore, it did not warrant any
interference by the Court. The High Court of Rajasthan has ruled that an accused having sufficient means cannot
claim for free legal aid assistance of a lawyer at the expense of the State, particularly when he has already
engaged a defence lawyer of his own choice.
The Calcutta High Court in Rajender Singh v. State of West Bengal, held that depriving the accused persons of
their right to produce evidence and not providing them opportunity to cross-examine the prosecution witnesses
will be gross violation of mandatory provisions of Section 304 of Cr. P.C. which may result in quashing of the
entire proceedings and the conviction of the accused may be set aside. In such a case, the appellate Court may also
order re-trial of the case if it deems necessary in the interest of justice.
Section 304( Free legal aid) enables the Sessions Court to assign a pleader for the defence of the accused at the
expense of the State provided he is unrepresented and the Court is satisfied that he has no sufficient means to
engage a pleader. Provisions is made in Sub-sec.3 of sec.304 to extend the same facilities to any class of trials
before other Courts by the State Government.
(06) SECTION 305 PROCEDURE WHEN CORPORATION OR REGISTERED SOCIETY IS

AN ACCUSED
This section prescribes the procedure to b; followed when a corporation or a registered society is an accused in a
criminal case.
Sub-section (2) requires that when a corporation or a legistered society is the accused person in an inquiry or trial,
it should appoint a nominee to represent it. Where there is no nomination under Section 305 the person who is
responsible for the conduct of business of the company shall be liable for punishment. Where it is proved that the
offence has been committed due to the negligent act or omission of any director or manager of the company, he
shall be liable for punishment. Once the guilt of the company is proved it may be directed to point out the person
on whom liability is to be fixed.8
The Supreme Court in State of West Bengal v. Calcutta Corporation observed that State like any other
individual is to be held criminally liable, unless the statute either expressly or by necessary implication exempts
the State from such liability.
(07) SECTION 306 -- TENDER OF PARDON TO ACCOMPLICE AND SECTION 307 –

POWER TO DIRECT TENDER OF PARDON
Section 306 deals with the tender of pardon to an accomplice. The object of this section is to allow pardon to be
tendered in cases where the grave offence is alleged to have been committed by several persons so that with the
aid of the evidence of the person pardoned, the offence could be brought to the rest.9
8
S.N. Misra. The code of criminal procedure (Allahabad: Central Law Publications, 2009) 418.
9
Ibid.
The gravity of the offence is to be determined with reference to the sentence awardable with respect to that
offence. Such tendering of conditional pardon to the accomplice enables the Court to know the fullest details
about the cases where it is otherwise impossible to establish the guilt of the accused from other evidence .
It is not necessary that an accomplice applying for tender of pardon must be a party to the offence or must be an
actual participant in the commission of the offence. He may be any other person who is not even summoned as an
accused.10
The section enumerates three types of cases in respect of which pardon can be tendered, namely,
(i) Offences triable exclusively by the Court of Session;
(ii) Offences triable by the Court of Special Judge appointed under Criminal Law Amendment Act, 1952; and
(iii) Offences punishable with imprisonment which may extend to seven years or with a more severe sentence.
Thus the pardon can be tendered only in respect of the three categories of cases mentioned above and none else.
In case of joinder of offences involving combination of offences arising out of the same transaction, the
committing Magistrate should commit the whole case to the Court of Session for trial.
The Magistrates who are empowered to tender pardon under Section 306 (1) are:—
(i) The Chief Judicial Magistrate or a Metropolitan Magistrate are empowered to tender pardon at any
stage of the investigation or inquiry into or trial of the offence;
(ii) The Magistrate of the first class inquiring into or trying the offence.
Where the Magistrate of the first class inquiring into the offence has declined to grant pardon, it does not take
away the power of the Chief Judicial Magistrate to entertain further application for grant of pardon. Though he is
empowered to consider such a further application but he will have due regard to the reason given by the
Magistrate of the first class for refusing to grant pardon. If the Magistrate granting pardon does not record
reasons, the order of the Magistrate may be quashed on this sole ground, because it will be difficult for the
revising Court to decide about the correctness of the order in the absence of the reasons therefore.
According to sub-section (4) when there is an approver, he shall be examined as a witness in the Court of
Magistrate taking cognizance of the offence before committal to the Court of Session. The accused should also be
given an opportunity to cross-examine him at this stage. The approver has to disclose the evidence before his
committal so that the accused has opportunity to prove the untrustworthiness of the approver’s evidence if he so
desires in his defence. The Supreme Court has categorically observed that the examination of approver in
committal Court as well as trial Court is mandatory even if he retracts from his earlier statement. However, the
accused has no right to cross-examine the approver during investigation.
Sub-section 4 (b) requires an approver to be kept in judicial custody until the termination of the trial if he is not
already released on bail. The object is not to punish the approver but to protect him from being exposed to harm
from the accused or accomplices. An approver who has been granted pardon no longer remains as an accused,
instead he is a witness.
The Supreme Court in Sitaram Sao alias Mungeri v. State of Jharkhand made it clear that examination of
approver should be conducted after .grant .of pardon to him. He then becomes a witness and has to be examined
in presence of accused and also cross- examined. The case involved abduction, looting and murder by the accused
driver with others. He abducted, looted and killed the wife of his employer. One of the accused turned approver
and gave sequence of events as to how conspiracy was hatched and how it was executed. Injuries found on the
body of the deceased and recovery of looted money from the accused driver corroborated the evidence of
approver.
Under these circumstances conviction of the accused on evidence of approver was held to be proper and in order.
The appeal of the accused (appellant) was, therefore, without merit and deserved to be dismissed. In a murder
10
case, the accused recorded his confessional statement under Section 164 though the circumstances did not suggest
his involvement in the murder. The witnesses also doubted his involvement. The Madhya Pradesh High Court did
not believe the prosecution story and acquitted him.
The Court held that it would have been proper on the part of the police to get the accused declared as an approver
under Section 306 of the Code rather than giving him status of an approver on the basis of the accuser’s statement.
The Court pointed out that the police has no power to declare the accused as approver. The purpose of the Court
in granting pardon to an approver is only to obtain his evidence as a witness. The fact that the accused has made a
confessional statement under Section 164 of Cr.P.C. cannot be a factor weighing against tender of pardon under
Section 306 of the Code.
In Randhir Basu v. State of West Bengal the Supreme Court held that the person who is granted pardon under
Section 306 has to be examined by the Magistrate as a witness as per sub-section (4) of Section 306 and it cannot
be demanded that such person should be examined in the presence of the accused and that the accused has the
right to cross-examine the person so pardoned at that stage.
The proceeding of the Magistrate is neither an inquiry nor trial, therefore, the argument that such person should be
examined as a witness in open Court and the accused should be given an opportunity to cross- examine him is not
tenable.
In Renuka Bai v. State of Maharashtra, the co-accused who was granted pardon under Section 306 was guilty
of giving false evidence along-with the accused. But the Court realised that the co-accused who was granted
pardon had co-operated in the Court proceeding and disclosed full and true information about the crime.
Therefore, the High Court instituted proceedings under Section 306 exercising its inherent powers under Section
482, Cr. P.C. which was upheld by the Supreme Court as proper and justified.
Tender of pardon protects the person concerned not only against the prosecution for the offence in which pardon
was granted but also from prosecution for any other offence of which he appears to have been guilty in connection
with the same. The Supreme Court has ruled that the release of approver on bail by the High Court would neither
affect the validity of the pardon granted to him nor the trial could be vitiated on this count.
The provisions of Section 306 will have no application where the accused person has actually been convicted of
the crime or he has not admitted his complicity in the crime. It is not necessary that grant of pardon should always
be at the behest of prosecution. The evidence of an approver to be trustworthy must satisfy two crucial tests viz.,
(1) it must show that he is a reliable witness; and (2) it must be sufficiently corroborative. It is however, not
necessary to examine an approver on oath.
Where approver has been given pardon for trial for the offence in respect of which he has been given pardon, but
the Court is satisfied that the approver has not given full details of crime despite public prosecutor’s failure to
initiate action, the Court would proceed against the approver by invoking his inherent powers under Section 482
of the Code.
The preceding section deals with tender of pardon by Magistrates. This section applies to tender of pardon by the
Court of Sessions, the Special Judge or the Chief Judicial Magistrate. Pardon under this Section can be
tendered not only -16- during a trial, but also before trial. Where pardon is granted by the Court to whom the case
has been committed for trial, compliance with the provisions of a S.306(4) is not necessary.

(08) SECTION 308 TRAIL OF PERSON NOT COMPLYING WITH CONDITIONS OF
PARDON
Legal provisions regarding trial of person not complying with conditions of pardon under section 308 of the Code
of Criminal Procedure, 1973.
(1) When, in regard to a person who has accepted a tender of pardon made under Section 306 or Section 307,
the public prosecutor certifies that in his opinion such person has, either by willfully concealing anything
essential or by giving false evidence, not complied with the condition on which the tender was made, such
person may be tried for the offence in respect of which the pardon was so tendered, or for any other
offence of which he appears to have been guilty in connection with the same matter, and also for the
offence of giving false evidence. However, such person shall not be tried jointly with any of the other
accused. Further, such person shall not be tried for the offence of giving false evidence except with the
sanction of the High Court and nothing contained in Section 195 or Section 340 shall apply to that
offence.
(2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under
Section 164 or a Court under Section 306(4) may be given in evidence against him at such trial.
(3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which
such tender was made, in which case it shall be for the prosecution to prove that such condition has not
been complied with.
(4) At such trial, the Court shall;
(a) If it is a Court of Session, before the charge is read out and explained to the accused;
(b) If it is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken, ask
the accused whether he pleads that he has complied with the conditions on which the tender of pardon
was made.
(5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before
passing judgment in the case, find whether or not the accused has complied with the conditions of the
pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code,
pass judgment of acquittal.
(09) SECTION 309 POWER TO POSTPONE OR ADJOURN PROCEEDINGS
The section contains directions to the Courts to conduct criminal proceedings expeditiously on day to day basis
until all the witnesses in attendance have been examined. It authorises the Magistrate to remand the accused to
judicial custody if necessary after taking cognizance of the offence or commencement of the trial.
This section also regulates the powers of the criminal Courts to postpone or adjourn the proceedings and
emphasises that stay of proceedings for indefinite period should be avoided so as to eliminate the chances of loss
of evidence by passage of time and unnecessary harassment to the accused. The Court may postpone the inquiry
or trial after taking cognizance of the offence if the Court deems it advisable to do so. Similarly, on
commencement of the trial, the Court may from time to time adjourn it when utmost necessary. But in both the
cases, it has to record reasons for postponement or adjournment, as the case may be.
Whereas witnesses are in attendance, 110 adjournments shall be granted, without examining them except special
reasons to be recorded in writing by the Court. The Court was fully justified in refusing to grant adjournment in
case for the examination of witnesses at the instance or prosecution, when the prosecution took years to adduce a
part of evidence.
The Supreme Court in M.S. Sheriji v. Slate of Madras, observed that the public interests demand that criminal
justice should be swift and sure and that the guilty should be punished while the events are still fresh in the public
mind and that the innocent should be absolved as early as is consistent with fair and impartial trial. Another
reason is that it is undesirable to let things slide till memories have gone too dim to trust.”

In yet another case, the Apex Court held that it is absolutely essential that persons accused of offences should be
speedily tried, so that in cases where bail is refused, the accused persons have not to remain in jail longer than is
absolutely necessary.
The Supreme Court in Ambika Prasad v. State, held that the examination of witnesses should not be adjourned
for months together and such adjournments should not exceed two or three months at the most. The Court should
ensure speedy disposal of trial and adjournments should be avoided as far as possible.
In R.D. Upadhyaya v. State of Andhra Pradesh the Supreme Court expressed deep concern for the plight of
women prisoners whose children also were lodged in jail along-with their mothers, and directed the Courts that
cases of such women prisoners should be decided expeditiously and their cases need to be disposed of on priority
basis.
Sub-section (2) empowers the Court to remand the accused but if the Court happens to be that of a Magistrate, he
shall not remand an accused person to custody for a term exceeding fifteen days at a time, but no limit has been
set to the number of such successive remands. However, there is no such inhibition on the Sessions Court.
Any custody in pursuance of an order of remand for a term exceeding fifteen days becomes illegal and the
detained accused becomes entitled for the grant of bail or to secure his release by filing a writ under Article 226 of
the Constitution. Proviso 3 to Section 309 (2) which has been inserted by the Amendment Act of 1978 clarifies
that no adjournment should be granted only for the purpose of enabling the accused to show cause against the
sentence proposed to be imposed on him.
The Code, no doubt, entitles an accused to have an opportunity of being heard on the question of sentence under
Section 235 (2), but this should not lead to undue delay in disposal of the case. Therefore, this proviso to Section
309 (2) does not allow the accused to ask for an adjournment to be heard on the point of sentence, but the Court is
not prohibited from granting such adjournment in serious cases of imprisonment for life or the sentence of death
in the interest of justice. An order of remand passed in the absence of accused will not be invalid and the Court
can pass an order of remand of the accused under Section 309 (2) even if the accused is not present in the Court.
Such occasion may arise due to the serious illness of the accused or some other reasons which prevent his
attendance in the Court.
In the well known Bihar Blinded Prisoners Case, the accused persons were not produced before the Court ever
since their first production before the Magistrate and they continued to remain in jail without any remand order.
The Supreme Court held that the detention of prisoners was contrary to law and illegal. Section 309 does not
prohibit the Court which commits an accused to Sessions Court to direct his being detained during the trial until it
is finally concluded. This will help the Sessions Judge in smooth conduct of the trial as he will not be required to
confer every time when he adjourns or postpones the trial, on any one such authority for detention of the accused
person. Where a Magistrate, in course of a trial adjourned the case by a written order but did not make an order to
remand the accused to judicial custody, it was held that the detention of the accused after the adjournment order
was illegal.11
But illegality of detention order does not entitle the accused to be released on bail. In a murder case where the
accused who was in judicial custody sought his release on bail on the ground that the remand order was invalid
under Section 309 (2), CrPC as reasons for adjournment were not given and also proper authorisation for
detention was not made, the High Court of Allahabad rejected the application for bail and held that the section did
not contemplate detailed reasons to be given and a mere noting that the case was adjourned on a particular day
because the Presiding Officer was on leave or he had been transferred was sufficient to comply with the
provisions of Section 309. It is not necessary for the Court to record reasons for remanding the accused though it
has to give reasons for adjournment.
11
Murli Dhar Chaturvedy The code of criminal procedure (Allahabad: Allahabad Law Agency Publications, 2006) 411.
In Syed Askari Hadi Ali Augustine Imam v. State (Delhi Adm.) the prayer of the accused for stay of criminal
proceedings against him in respect of forgery of will on the ground pendency of probate proceedings was not
granted by the Court. The Court held that criminal case was instituted against the accused much prior to initiation
of probate proceeding. On appeal, the Supreme Court upheld the order the Court below and refused to interfere in
view of the conduct of appellant and stage in which probate proceeding was pending. The appeal was therefore,
disallowed.
(10) SECTION 310 LOCAL INSPECTION
The powers under this section to permit a Judge or a Magistrate to make a local inspection are wide and can be
exercised at any stage of inquiry or trial even before the evidence is recorded. The exercise of discretion by Judge
or Magistrate to undertake local inspection of the place in which the offence is alleged to have been committed
depends on the facts and circumstances of each case. The observations made by the Court during its inspection
cannot be used as a part of evidence in the case. They can be used only for a limited purpose for appreciating the
evidence given at the trial.12
In the context of Section 310, CrPC the Supreme Court observed that what this section contemplates is the local
inspection of the topography of place in which the offence was alleged to have been committed or its local
peculiarities for the purpose of properly appreciating the evidence which was already on record. Local inspection
of the place of occurrence of the offence may be made either on application of parties or suo motu. The Judge or
the Magistrate, as the case may be, shall record a memorandum of any relevant fact observed at such inspection
which shall for a record of the case and if either party to the case desires a copy thereof, it shall be furnished to
him free of cost.
(11) SECTION 311-- POWER TO SUMMON MATERIAL WITNESS, OR EXAMINE PERSON

PRESENT AND SECTION 312 – EXPENSES OF COMPLANAINTS AND WITNESS
According to Section 311 of the Code of Criminal Procedure, any Court may, at any stage of any inquiry, trial or
other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though
not summoned, as a witness, or recall and re-examine any person already examined; and the Court shall summon
and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just
decision of the case.
Power of Magistrate to order person to give specimen signatures or handwriting, According to Section 311-A of
the Code of Criminal Procedure, if a Magistrate of the first class is satisfied that, for the purpose of any
investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to
give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom
the order relates shall be produced or shall attend at the time and place specified in such order and shall give his
specimen signatures or handwriting, Provided that no order shall be made under this section unless the person has
at some time been arrested in connection with such investigation or proceeding.
Section 311 confers very wide power on the Court for summoning witnesses. The power under Section 311 is
wholly discretionary but it should be exercised judicially as the wider the power is the greater is the necessity for
application of judicial mind.
Section 312 talks about expenses of complainants and witnesses. A/c to it “Subject to any rules made by the State
Government, any Criminal Court may, if it thinks fit, order payment, on the part of Government, of the reasonable
expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before
such Court under this Code”.
12
(12) SECTION 313 -- POWER TO EXAMINE THE ACCUSED AND SECTION – 314 ORAL
ARGUMENTS AND MEMORANDUM OF ARGUEMENTS
The section is intended to establish a direct dialogue between the Court and the accused so as to give him an
opportunity to give his explanation. The purpose of examination of the accused by the Court under this section is
certainly not to cross- examine him or trapping him to make an admission of facts which the prosecution has
failed to establish against him, but to afford him an opportunity of explaining the circumstances that appear to be
against him in the evidence. For instance, if some articles are found and recovered from accused’s house, which
points at his involvement in the crime, the Court should examine and give him an opportunity to explain how
those articles happened to be present in his house.
Section 313 consists of two clauses (a) and (b). Clause (a) gives discretion to the Court to question the accused at
any stage of inquiry or trial without previously warning him whereas under clause (b), it is mandatory for the
Court to-question the accused generally about the case after the prosecution witnesses have been examined and
before he is called for his defence.
However, in a summons case, where the Court has dispensed with the personal attendance of the accused under
Section 205 or 217 of the Code the Court has been given discretion under the proviso to Section 313 (1) to
dispense with the examination of the accused under clause (b). Where the accused expressly commits that he
would not complain about any prejudice on the ground of non-examination under Section 313, the Supreme Court
held, his non-examination proper as it did not contravene the provisions of Section 313.
The object underlying in Section 313 is to draw accused’s attention to every inculpatory material against him so
as to enable him to explain it in his defence. This being a basic requirement of a fair trial, failure in this may
gravely imperil the validity of the trial itself, if consequential miscarriage of justice or prejudice is proved.
The Supreme Court has reiterated that where a circumstance against the accused is not put to him in his
examination under Section 313, the prosecution cannot be permitted to rely on that circumstance in order to
convict him, particularly after his acquittal by trial Court. The accused is not bound to answer the questions and
according to sub-section (3) he shall not render himself liable to punishment if he refuses to answer the questions
put to him by the Court or gives false answers.
Nor is any oath to be administered to him. The reason being that under this section, he is not being examined as a
witness. However, his answers may be put in evidence for or against him, in inquiry or trial for some other
offence. For example, where in a murder case, the accused while being examined under Section 313 answers that
he concealed the dead body but did not kill the victim, this statement made by him may be used as evidence
against him in a subsequent trial for in offence under Section 201 IPC.
The object of Section 313 is not to nail the accused to any position but to comply with the most salutory principle
of natural justice enshrined in the maxim audi alteram partem. Therefore, the examination under this section has
to be of utmost fairness.
The Supreme Court in State of Punjab v. Naib Din, observed that “if any appellate Court or revisional Court
comes across that the trial Court had not put any question to an accused even if it is of a vital nature, such
omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort
should be made to undo or correct the lapse. If it is not possible to correct it by any means, the Court should then
consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence
aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter
much, and can be sidelined justifiably. But if the lapse is as vital as would affect the entire case, the appellate or
revisional Court can endeavour to see whether it could be rectified.”13
13
The Apex Court, in Avtar Singh v. State of Punjab, has once again reiterated that the object of examination of
accused under Section 313 is to afford an opportunity to him to explain the circumstances appearing in the
evidence against him. It is unfortunate that no question was asked about the possession of goods in the instant
case.14
The section aims at affording the accused a fair and proper opportunity of explaining circumstances which appear
against him and the question- put to him must be fair and couched in a form which an ignorant or illiterate person
may be able to appreciate and understand. The counsel of the accused need not be consulted by the Court on the
nature and circumstances or type of questions to be put to the accused.
Even if there was any lacuna or defect in the examination of the accused under Section 313, it amounts to a mere
irregularity and does not call for an interference with the order passed by the Court below especially when no
objection on this ground was raised before the High Court. The section does not require that the Court should
record the questions put to the accused persons or his answer while examining him under Section 313. The
provisions of this section equally apply to a trial before a Sessions Judge even when the accused has been
examined on the case generally by the committing Magistrate. The recording of the statements made by the
accused should, however, be in full details and no short-cut method be adopted in such recording of statements.
Where the accused on being questioned by the Court under Section 313 in general terms, prefers to leave his
defence to his legal adviser by filing a written statement, instead of answering them himself, he may do so and the
Court should accept the written statement so filed by an accused.15
In General Vaidaya’s Murder case the accused, besides giving written confessional statements also admitted in
their statements under Section 313, Cr PC that they were responsible for the murder of General Vaidya, it was
held that the trial Court was justified in accepting and acting upon their plea of guilt and convicting them
accordingly. It has been well settled that where there is no mention of the person as accused by any of the
prosecution witnesses, his statement under Section 313 cannot be acted upon or accepted as the very examination
of the accused under this section was uncalled for as there was no circumstance against him to be explained by
him.
As to the effect of error or omission in complying with the provisions contained in Section 313, the Courts have
held time and again that the trial is not necessarily vitiated thereby unless prejudice has been or is likely to have
been caused to the accused. They are mere irregularities which are curable under the Code.
In the case of Janak Yadav v. State of Orissa, the Supreme Court held that where additional evidence was taken
under Section 391 after recording the statement of the accused under Section 313, it was certainly prejudicial to
the accused as he did not get an opportunity to explain his position against the additional evidence. The Apex
Court, therefore, ordered retrial from the stage of recording of statement under Section 313 of CrPC.
In a case of prosecution for causing death due to negligent driving, the accused scrambled into evidence of other
witnesses and several distinct facts were mixed with each other. The accused was not given opportunity to explain
the circumstances appearing against him and the absence of mechanical fault in vehicle was not put forth as a
question to enable the accused to explain himself. It was held that such an examination was defective and
prejudice was caused to the accused. Hence the matter was remanded back for fresh examination under Section
313 of the Code.
Since the statement of the accused under Section 313 is not substantive evidence, a conviction cannot be based on
such examination alone. However, sub-section (4) does provide that such statement may be taken into
consideration at the trial. In other words, the Court may seek assistance from the statement of the accused under
Section 313 and consider it in conjunction with the evidence adduced by the prosecution.
14
Ibid.
15
The Supreme Court in Bishnu Prasad Sinha v. State of Assam reiterated that statements of accused made under
Section 313, Cr. P.C. cannot be sole basis of conviction, but the effect thereof may be considered in the light of
other evidences brought on record. However, where the accused has made a voluntary confession under Section
164 and does not retract it until the stage of his own examination and the Court has no doubt about the truth and is
satisfied that it is genuine, it would be admissible under Section 313 and the accused may be convicted on the
basis of such confession.
The Supreme Court in State of Punjab v. Swaran Singh, has ruled that the acquittal of the accused merely on the
ground that evidence of official witnesses was not specifically put to him under Section 313 was not proper and,
therefore, was liable to be set aside.
The Supreme Court in State of Karnataka v. Anne Cauda, held that the examination of the accused under
Section 313 of Cr. P. C. cannot be kept pending merely on the ground that charge-sheets against him have been
filed for other offences as well. In the instant case, the accused was charged for an offence under Section 18 of
N.D.P.S. Act. He had completely admitted evidence of official witnesses as regards receipt of sample, sealing of
same and sending to Chemical Analyst. The accused did not specifically cross-examine the official witnesses in
respect of facts deposed by them.
Therefore, no prejudice was caused to the accused by not giving him an opportunity to answer specifically
regarding evidence of official witnesses. As such, acquittal of the accused merely on the ground that evidence of
official witnesses was not specifically put to them under Section 313, Cr. P.C. was not proper. Omission to put
incriminating circumstances such as contents of dying declaration to accused did not by itself vitiate the trial. It
was for the accused to satisfy the Court that he had been prejudiced because of defect in procedure adopted. The
acquittal of the accused was, therefore, not proper.
The case of Tripurari Mohan Prasad v. Union of India, was concerned with the Fodder Scam case. In this case,
prayer was made for recording statement of accused persons in one case at the time of recording statement of
accused persons in another case. No ground had been made out for amalgamation of cases at the stage when a
number of witnesses have already been examined by the prosecution.
The appellants had also failed to suggest as to how they will be prejudiced if statement of accused persons under
Section 313 were recorded separately in respective cases. Rejection of prayer for recording statement of accused
persons under Section 313 was, therefore, proper and in accordance with the law.
With reference to the provisions of Section 313 of Cr. P. C. the Supreme Court in K. Anbajhgagan v.
Superintendent of Policed held that exempting the accused from personal appearance before the Court during
trial and permitting him to answers the questions on the question-answer form through his legal Counsel cannot
be said to be proper procedure, especially when no special reasons were shown for doing so. The Court expressed
surprise that even the Public Prosecutor did not raise any objection to this procedure.
However, the Apex Court in State of Punjab v. Hari Singh, observed that the word ‘shall’ used in Clause (b) to
Section 313 (1) of Cr. P. C is to be interpreted as obligatory on the Court and it should be complied with when it
is for the benefit of the accused.
But if it works to his great prejudice and disadvantage, the Court should in appropriate cases, e.g., if the accused
satisfies the Court that he is unable to reach the venue of the Court, except by bearing huge expenditure or that he
is unable to travel long distances due to physical incapacity or some other genuine hardship, relieve him of such
hardship arid at the same time adopt a measure to comply with the requirements in Section 313 of Cr. P. C. in a
substantial measure.16
The Court has in an earlier case of Keya Mukherjee v. Magma Leasing Ltd., held that personal attendance of
the accused may be dispensed with for his examination by the Court if it works hardship on him. The procedure to
16
be followed for granting such exemption and answering questionnaire is elaborately laid down by the Supreme
Court in this case.
Section 313 empowers the Court to examine the accused after the evidence for the prosecution has been taken.
The object of empowering the Court to examine the accused is to give him an opportunity of explaining any
circumstances which may tends to incriminate him and thus to enable the Court, in case where the accused is
undefended, to examine the witnesses in his interest. In a summons case, discretion lies with the Magistrate,
whether to dispence with the examination of the accused u/s 313 (Basavraj R. Patil Vs State of Karnataka,
(2000)8 SCC 740). No oath can be administered to an accused person. An accused person cannot be prosecuted
for perjury by reason of any false answers that he may give.
(13) SECTION 315 – ACCUSED PERSON TO BE COMPETENT WITNESS AND SECTION

316 – NO INFLUENCE TO BE USED TO INDUCE DISCLOSURE
Accused person to be competent witness:
The section provides that an accused person can be a competent witness for the defence and like any other witness
he is entitled to give evidence on oath in disproof of the case brought against him by the prosecution.
Where the accused voluntarily offers himself to be examined as a defence witness, the prosecution is entitled to
examine him and the evidence so obtained may be used against the co-accused. However, the section precludes
the Court from drawing any adverse inference from the non-examination of the accused as a defence witness.
The higher Courts have held in a number of cases that if an accused along with others, voluntarily steps in the
witness box as a defence witness, he is subject to cross- examination by the prosecution counsel and the evidence
brought out in such cross- examination can be used against his co-accused. If such a witness incriminates his co-
accused who are jointly tried with him, they have a right to cross-examine him, if they so desire.17
In the case of Gajendra Singh v. State of Rajasthan, the accused, after getting his statement recorded under
Section 313, got himself examined as a defence witness under Section 315 of the Code. His request to produce
certain documents was, however, turned down by the trial Court.18
Disapproving the refusal, the Supreme Court observed that once the learned Judge allowed the accused to be
examined as a defence witness on his application, the trial Court ought to have permitted him to produce the
documents on which he relied. The Court therefore, remanded back the case to the Sessions Court.
Section 316 says that no influence of any kind should be used to induce disclose. A/c to it, “Except as
provided in sections 306 and 307 no influence by means of any promise or threat or otherwise, shall be
used to an accused person to induce him to disclose or withhold any matter within his knowledge “.
(14) SECTION 317 – PROVISION FOR INQUIRIES AND TRAIL BEING HELD IN THE
ABSENCE OF ACCUSED IN CERTAIN CASES AND SECTION 318 – PROCEDURE WHEN
ACCUSED DOES NOT UNDERSTAND PROCEEDINGS
Provision for inquiries and trial being held in the absence of accused in certain cases:
17
18
This section lays down the procedure for inquiries and trials being conducted in the absence of accused in certain
cases. The section enables the Court to dispense with the personal attendance of the accused and proceed with the
inquiry or trial in his absence.
Similar provision also exists in Section 205 which provides that when a Magistrate issues a summons, he may
dispense with the personal attendance of the accused and permit him to appear by a pleader. The general rule is
that all inquiries and trials should be conducted in the presence of the accused. Therefore, this section provides an
exception to this general rule.
Sub-Section (2) provides for the case of an accused who is not represented by a pleader but whose continued
personal presence or attendance may be necessary. In such a case the Court may either adjourn the trial of all the
accused or order the particular absenting accused to be tried separately. In either case, i.e., sub-section (1) or (2)
the Court shall record reasons in writing for its decision in this regard. The observations made by the Kerala High
Court in the context of Section 317 deserve pointed attention. The Court held that in all trivial and technical cases
not involving moral turpitude, where the accused are ladies, old and sick persons, factory workers, labourers, busy
business people and industrialists, the Courts should invariably exempt such persons from personal attendance
under this section of the Code. The Courts should see that undue harassment is not caused to the accused
appearing before them.
In Baskar Industries Ltd. v. Bhiwani Denim & Apprals Ltd., the Supreme Court held that in certain cases the
Magistrate may exempt the accused even from the first personal attendance and permit him to be represented by
his Counsel and record the Counsel’s evidence as the evidence given by the accused. Section 317 permits the
Magistrate to exempt the accused from personal appearance before the Court provided he is being represented by
his defence Counsel and the latter is appearing before the Court on behalf of the accused.
Section 318 provides that if the accused (though not of unsound mind) cannot be made to understand the
proceedings, the Court may proceed with the inquiry or trial; and in the case of a Court other than a High Court if
such proceedings result in a conviction, the proceedings shall be forwarded to the High Court with a report of the
circumstances of the case, and the High Court shall pass thereon such order as it thinks fit.
(15) SECTION 319 – POWER TO PROCEED AGAINST OTHER PERSONS APPEARING TO

BE GUILTY OF OFFENCE
Power to proceed against other persons appearing to be guilty of offence:
Highlighting the primary object underlying Section 319 of the Code, the Supreme Court in Manjit Pal Singh v.
State of Punjab & others, observed that it is intended that the whole case against all the accused should be tried
and disposed of not only expeditiously but also simultaneously. The Court emphasised that justice and
convenience both require that cognizance against the newly added accused should be taken in the same case and
in the same manners as against the original accused. The power must be conceded as incidental and ancillary to
the main power to take cognizance as part of normal process in the administration of criminal justice.
However, it must be stated that the Code has taken care by sufficiently protecting and safeguarding the interest of
such newly added accused. Section 319 (4) expressly provides that where the Court exercises power of arraying
accused under Section 319 (1) and proceeds against a person not arrayed as an accused, the proceedings in respect
of such person shall be commenced afresh, and the witnesses re-heard. Hence there is no scope for ‘prejudice’
against the newly added accused.19
Thus this section contains an enabling provision which authorizes the criminal Court to proceed against any
person not shown or mentioned as accused, if it appears from the evidence that such person is also involved in the
19
offence for which he could be tried together with the accused against whom an inquiry or trial is being held.
The Court may issue a warrant of arrest or summons against such person if he is not attending the Court, and if he
is attending, it may detain such person for the purpose of inquiring into or trial of the offence in which he seems
to have been involved. Under this section, a Sessions Court is also entitled to summon an accused on finding a
prima facie case from the record of the evidence submitted to it with committal order. The expression “any other
person not being the accused” occurring in Section 319 clearly covers any person who is not being already
inquired into or tried by the Court and includes even the persons who have been dropped by the police during
investigation but against whom evidence showing their involvement in the offence comes before the criminal
Court. The question whether the Court of Session has the power under Section 319 to summon additional accused,
prior to the stage of recording evidence has been reconsidered by the Supreme Court in Ranjit Singh v. State of
Punjab, and the Court observed, “once the Sessions Court takes cognizance of the offence pursuant to the
committal order, the only other stage when the Court is empowered to add any other person to the array of the
accused is after reaching evidence collection stage when powers under Section 319 of the Code can be invoked.”
The Apex Court further held that if the Sessions Judge is convinced that the police have not sent up a particular
accused due to inadvertence or omission, he can send up a report to the High Court requesting it to direct the
Magistrate under its revisional or inherent powers to issue process against that left out accused.20
The provisions of Section 319 have to be read in consonance with the provisions of Section 398 of the Code and,
therefore, the Supreme Court has ruled that a person who has already been discharged in the case cannot be
summoned as an additional accused under Section 319 of the Code of Criminal Procedure.
The word “evidence” used in this section means the statements of witnesses as recorded by the Court and it does
not include the statements recorded by the Police under Section 164 or statements recorded under Section 202.
Such evidence must be sufficient enough to make out a prima facie case against the person sought to be added as
accused and satisfy all essential ingredients of the offence for which he is sought to be presented. However, the
Court at this stage need not evaluate the evidence to assess whether it is sufficient to result into conviction of the
accused, nor is it necessary at this stage to subject the person on whose statement the additional accused is
summoned for cross- examination.
The power conferred by section 319 may be used by the Court suo motu or on an application of someone
including the accused. The exercise of the power is, however, discretionary with the Court and the discretion must
be exercised judicially having regard to facts and circumstances of the case. The effect of the operation of the
section is that the person against whom an order under Section 319 is made becomes an accused from the very
date the order is made. But the proceedings in his case have to be started de novo and the witnesses are re-heard
so that the person so added as an accused may not suffer any injustice because of the non- examination of such
witnesses. But this does not however, mean that the person should be tried separately.
The Supreme Court, in Municipal Corporation, Delhi v. Ram Kishan Rohatgi, observed that the power
conferred on the Court by Section 319 of the Code being an extraordinary power, should be used sparingly and
only if compelling reasons exist for taking cognizance against the other person who has not been included as an
accused.
The Supreme Court in Mohd. Shaft v. Mohd. Rafiq and another reiterated that before a Court exercises its
discretionary jurisdiction in terms of Section 319 of the Code of Criminal Procedure, it must arrive at a
satisfaction that there exists a possibility that the accused so summoned under Section 319 in all likelihood would
be convicted. Such satisfaction can be arrived at upon completion of cross-examination of the said witness. The
Court concerned may also like to consider other evidence. In the instant case, the trial Court refused to summon
additional accused (i.e., appellant) to face trial in the murder case at the instance of witness who in his
examination under Section 161, Cr. P.C. had stated that appellant had taken part in the commission of offence.
20
Thereafter, an application was filed before the Allahabad High Court under Section 482, Cr. P.C. against the said
order contending that appellant was merely a witness and he had no say in the matter.
The Supreme Court held that High Court should not have entertained the application under Section 482, Cr. P.C.
as the order of the trial Court, i.e., Sessions Judge dated 26th August, 2006 was not even an interim order
affecting the rights of the parties. Even a revision application there against could not have been maintained at that
stage. The Apex Court, therefore, set aside the order of the High Court allowing the appeal. The Supreme Court in
its judgment made it clear that power under Section 319, Cr. P.C. is an extraordinary power which is conferred on
the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against
the person who is to be summoned as an additional accused.
(16) SECTION 320 – COMPOUNDING OF OFFENCES
A composition is an arrangement whereby there is settlement of the differences between the injured party and the
person against whom the complaint is made. It is not necessary that the composition should be in writing. It may
be oral. If both the parties agree that there has been compromise, then the Court has to dispose of the case in terms
of that compromise and the petitioner is to be acquitted. If, on the other hand, parties differ, then the Court has to
call upon them to lead evidence and then record a finding on such evidence.
The offences that may lawfully be compounded are those that are mentioned in Section 320 of the Code of
Criminal Procedure. The offences other than those mentioned cannot be compounded. The offences punishable
laws other than the Penal Code are not compoundable. Only the person named in the third column of Section 320
can legally compound an offence under Section 320. Any person may set the criminal law in motion, but it is only
the person specified in the third column who can compound the offence. A case may be compared at any time
before sentence is pronounced even whilst the Magistrate is writing the judgment. The compounding of an
offence signifies that the person against whom the offence has been committed has received some gratification,
not necessarily of a pecuniary character, to act as an inducement for his desiring to abstain from a prosecution and
Section 320 provides that if the offence be compoundable, composition shall have the effect of an acquittal.
The object of Section 320 of the Code is to promote friendliness between the parties so that peace between them
is restored.
(17) SECTION 321 – WITHDRAWAL FROM PROSECUTION
Withdrawal from prosecution:
The section enables the Public Prosecutor or an Assistant Public Prosecutor, as the case may be, who is
conducting the case, to withdraw from the prosecution which means retracting or refraining from proceeding with
the prosecution any further. The section further requires that where the offence falls within any of the categories
mentioned in sub-clauses (i) to (iv) of the proviso, the permission of the Central / State Government has to be
obtained for moving an application for withdrawal from the prosecution by the Public Prosecutor. However,
where the prosecution is being proceeded by a complainant on a private complaint, the Public Prosecutor is not
entitled to apply for withdrawal from prosecution in such a case.
It must be pointed out that Section 321 provides for ‘withdrawal from prosecution’ and not the ‘withdrawal of the
prosecution, the accused shall be discharged if the withdrawal is before the framing of a charge and he shall be
acquitted where no charge has been framed and such acquittal shall be a bar to a re-trial under Section 300 of the
Code. It would also be pertinent to note the distinction between composition of an offence under Section 320 and
‘withdrawal” under Section 321 of the Code. 21
The main distinction between the two is as follows —
21
(1) Composition of an offence requires consent of both parties whereas withdrawal is an act of one party only,
namely, the Public Prosecutor.
(2) Withdrawal is always with the consent of the Court but in case of composition of an offence Court’s
permission is not always necessary.
(3) Composition necessarily ends in the acquittal of the accused, but in case of withdrawal accused is discharged
if withdrawal is made before a charge is framed.22
The section {i.e., Section 321) applies to every kind of inquiry and trial as also all cases which are capable of
terminating either in a discharge or an acquittal according to the stage at which application for withdrawal is
made. An offence may be exclusively triable by a Court of Session, but even then the committing Magistrate has
the jurisdiction to give consent to Public Prosecutor to withdraw from the prosecution. The section is, however,
not applicable to security proceedings under Section 107, CrPC because they do not terminate in discharge or
acquittal of the accused. The withdrawal from the prosecution on an application by the Public Prosecutor takes
effect only after the Court gives its consent for the withdrawal after being satisfied with the material placed before
it and the reasons which have prompted the Public Prosecutor to withdraw from prosecution.
While granting the permission for withdrawal, the Court must ensure that it would serve the ends of justice. The
Court, while according consent under this section should record reasons therefore, so as to enable the revisional
Court (i.e., High Court) to determine the propriety and correctness of the direction of the trial Court. But the
Supreme Court in its decision in V.S. Achutanandan v. Balkrishna Pillai, has held that it is not mandatory for
the Court to make a reasoned order of withdrawal. Since the order of the Court granting, permission for the
withdrawal from the prosecution is not an interlocutory order, therefore, it is subject to the revisional jurisdiction
of the High Court. Where the accused was acquitted consequent to the withdrawal order made by the Court with
its consent, the private party had no locus standi to move an application for revision of the order.
The amplitude of Section 321 is wide enough to enable the Public Prosecutor to withdraw from the prosecution of
any person either generally or in respect of any one or more of the offences for which he has been charged.
It is now well established that the withdrawal from the prosecution by the Public Prosecutor is an executive
function. The Government may direct the Public Prosecutor to withdraw from particular case, but he cannot be
compelled by anyone, to do so. However, from the practical stand point, it is difficult to subscribe to this view as
rightly held by the Supreme Court in its decision in Shivnandan Paswan v. State of Bihar, The Court inter-alia,
observed:
“Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the
Government, Central or State, appointed for conducting in Court any prosecution or other proceedings on behalf
of the Government concerned. So there is relationship of counsel and client between the Public Prosecutor and the
Government. A Public Prosecutor cannot act without instructions of the Government; he cannot conduct a case
absolutely on his own, or contrary to the instruction of his client, namely, the Government. Section 321 does not
lay any bar on the Public Prosecutor to receive any instruction from the Government before he files an application
under this section. On the contrary Public Prosecutor cannot file an application for withdrawal of a case on his
own without instruction from the Government.” But the above decision has been reviewed by the Supreme Court
wherein the Court categorically observed that a Public Prosecutor can withdraw the case at any stage of
prosecution with the only limitation that the Court must have consented to it.
Reiterating this view, the Supreme Court has once again held in the case of Km. Sirilekha Vidyarthi v. State of
U.P., that the statutory responsibility for deciding withdrawal from the prosecution solely vests with the Public
Prosecutor and it cannot be circumscribed in favour of those who are above him (i.e., the Government). The
Public Prosecutor may avoid to withdraw from prosecution not only on the ground of insufficiency of evidence to
sustain the charge but on other relevant grounds as well, such as public interest, peace and tranquillity,
elimination of law and order problems which are likely to arise from communal riots, mass agitations, regional
22
Ibid
disputes and student unrest etc. The Government may also sometimes be required to drop the prosecution
launched against certain offenders in the larger interests of the society.
In the case of S.K. Shukla v. State of Uttar Pradesh, the Supreme Court clarified that in withdrawal from
prosecution the Public Prosecutor should not act like a post box or act on the dictate of the State Government. He
has to act objectively as he is also an officer of the Court. At the same time, Court is also not bound to accept the
opinion of the Public Prosecutor and it is free to assess whether the prima facie case is made out or not. The
Court, if satisfied, can also reject Public Prosecutor’s prayer of withdrawal from prosecution. In the instant case,
the Court examined the matter and found that there was prima facie case to proceed against the accused persons
under Section 4 (b) of the POTA and other provisions of the Explosives and Arms Act. Therefore, the sanction
granted by the Government and application moved by Public Prosecutor for withdrawal of the cases could not be
sustained.
Where a Magistrate permitted withdrawal of a case against a Police Inspector on the ground that departmental
inquiry was already instituted and pending against him. the High Court set aside the withdrawal order holding that
neither the Public Prosecutor nor the Court had applied their minds to :he circumstances justifying withdrawal.
In Phoolan Devi’s case i.e., State of U.P. v. Third Additional District & Sessions Judge, the Allahabad High
Court upheld the order of the trial Court rejecting the request for consent for withdrawal from prosecuting the
former woman dacoit on various charges as she belongs to a lower caste and had committed various heinous
crimes to take revenge upon her enemies who had allegedly tortured her. The Public Prosecutor wanted
withdrawal as proceeding further with the prosecution was likely to create a situation of caste-war in the State.
The consent of the Court for withdrawal under this section should be based on sound reasoning keeping in view
the facts and circumstances of the case. Simply nonavailability of the accused or the fact that he cannot be served
with summons has been held no justiciable ground for granting permission to withdrawal from prosecution.
The Supreme Court in Vijay Kumar Baldev Mishra v. State of Maharashtra held that while granting
permission or refusing it, it is necessary that the designated Court should apply its mind in regard to grounds for
withdrawal of prosecution in respect of any one or more of the offences for which the accused is tried. While
filing application for withdrawal of prosecution, the Public prosecutor is also required to apply his mind and
effect thereof in the society in the event such permission is granted by the Court. In the instant case, the accused
was being tried for murder under Section 302/307, I.P.C. as also under the Arms Act and TADA. The designated
court while refusing to grant permission, expressed its opinion in the merits of the matter and effect of confessions
made in terms of provisions of TADA. Disposing of the appeal, the Apex Court held that expression of opinion in
the merit of the matter and effect of confession thereon, by the designated Court was not warranted while refusing
grant of permission for withdrawal of the prosecution.
The section is silent as to the right of the complainant or any other person to oppose the application of the Public
Prosecutor seeking withdrawal from the prosecution In Subash Chandra v. State, the private complainant had
opposed such withdrawal but his application was rejected both by the High Court as well as the Supreme Court.
The High Court of Andhra Pradesh has, however, held that a third party who has been aggrieved and suffered as a
result of the offence sought to be withdrawn by the Public Prosecutor, has the right to oppose the withdrawal of
prosecution. There is no provision for appeal against the order passed under Section 321; hence the only remedy
available is to invoke the revisional jurisdiction of the C cm of Session or the High Court under Section 397 of the
Code.
In State v. L. Ganeshan, trial Court permitted withdrawal from prosecution in few cases on the application of the
Public Prosecutor, at the instance of the Government of Tamil Nadu, but thereafter when another political party
came to power, the Public Prosecutor was directed to get the withdrawal cancelled and prosecution restored. The
High Court of Madras held that the State Government which moved the applications for withdrawal from
prosecution could not seek to set aside the order granting withdrawal, as it would lead to uncertainty as to the
finality of the proceedings under Section 321.

(18) SECTION 322 – PROCEDURE IN CASES WHICH MAGISTRATE CANNOT DISPOSE OF AND
SECTION 323 – PROCEDURE WHEN, AFTER COMMENCEMENT OF INQUIRY OR TRAIL,
MAGISTRATE FINDS CASE SHOULD BE COMMITTED
A/c to section 322, in case the magistrate has initially no jurisdiction or is not competent to take
cognizance of the offence, section 322 will not be attracted and in such case the only course open will be
to return the complaint under section 210 to the complainant for presentation to the proper court. An
erroneous committal of case by the magistrate for which he was competent to try and the sessions judge
trying the same and convicting the accused does not render the committal and trail illegal.23
Section 322 reads as following, Procedure in cases which Magistrate cannot dispose of.
(1) If, in the course of any inquiry into an offence or a trial before a Magistrate in any district, the evidence
appears to him to Warrant a presumption-
(a) that he has no jurisdiction to try the case or commit it for trial, or
(b) that the case is one which should be tried or committed for trial by some other Magistrate in the district, or
(c) that the case should be tried by the Chief Judicial Magistrate, he shall stay the proceedings and submit the
case, with a brief report explaining its nature, to the Chief Judicial Magistrate or to such other Magistrate, having
jurisdiction, as the Chief Judicial Magistrate directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either try the case himself, or refer it to
any Magistrate subordinate to him having jurisdiction, or commit the accused for trial.
A/c to section 323, if in any inquiry into an offence or a trail before a magistrate, it appears to him at any stage of
the proceedings before signing judgment that the case is one which ought to be tried by the court of session, he
shall commit it to that court under the provisions herein before contained and thereupon the provisions of chapter
XVIII shall apply to the commitment so made.
In a case instituted on a police report or otherwise, if it appears to the magistrate that the offence is exclusively
triable by the court of session, then he is required by section 209 to commit the case to the court of session .
(19) SECTION 324 – TRAIL OF PERSONS PREVIOUSLY CONVICTED OF OFFENCES AGAINST

COINAGE, STAMP- LAW OR PROPERTY
Section 324 reads as following,
(1) Where a person, having been convicted of an offence punishable under Chapter XII or Chapter XVII of the
Indian Penal Code (45 of 1860 ) with imprisonment for a term of three years or upwards, is again accused of any
offence punishable under either of those Chapters with imprisonment for a term of three years or upwards, and the
Magistrate before whom the case is pending is satisfied that there is ground for presuming that such person has
committed the offence, he shall be sent for trial to the Chief Judicial Magistrate or committed to the Court of
Session, unless the Magistrate is competent to try the case and is of opinion that he can himself pass an adequate
sentence if the accused is convicted.
(2) When any person is sent for trial to the Chief Judicial Magistrate or committed to the Court of Session under
sub- section (1) any other person accused jointly with him in the same inquiry or trial shall be similarly sent or
23
committed, unless the Magistrate discharges such other person under section 239 or section 245, as the case may
be.24
(20) SECTION 325 PROCEDURE WHEN MAGISTRATE CANNOT PASS SENTENCE

SUFFICIENTLY SEVERE
This section applies when the Magistrate finds that the circumstances demand the imposition of a higher sentence
than what he can impose on the accused, he would send the case to the Chief Judicial Magistrate for higher
punishment. However, he can invoke the provisions of Section 325 only after hearing the evidence for the
prosecution and the accused and after forming an opinion that the accused is guilty of the offence.
If the Magistrate opines that the case before him ought to be tried by the Sessions Court, for reasons other than the
inability of the Magistrate to award adequate sentence, he may commit the accused to the Sessions Court under
Section 323 of the Code.
The Chief Judicial Magistrate, to whom the Magistrate subordinate to him has submitted the case for higher
punishment or a punishment different in kind than he can inflict, may commit the case to the Court of Session if
he thinks it fit. Section 325 further provides that if the subordinate Magistrate is of the opinion that the accused
ought to be required to execute a bond under Section 106, he may record the opinion and submit the proceedings,
and forward accused to the Chief Judicial Magistrate to whom he is subordinate.
The opinion of the referring Magistrate that the accused is guilty and deserves a severe punishment is not binding
on the Chief Judicial Magistrate. He may consider whether the evidence is worthy of belief or not and make his
own judgment and pass sentence or discharge or acquit die accused accordingly.
(21) SECTION 326 CONVICTION OR COMMITMENT ON EVIDENCE PARTLY

RECORDED BY ONE JUDGE AND PARTLY BY ANOTHER.
This section is an exception to the well known principle of criminal jurisprudence that it is a right of an accused
person that his case should be decided by a Magistrate or a Judge who has heard the whole of it.
The section enables a successor Judge/Magistrate to continue an inquiry or trial from the stage left by his
predecessor and pronounce judgment on evidence partly recorded by his predecessor and partly by himself, or on
the evidence wholly recorded by the predecessor.
A Magistrate who succeeds another Magistrate by reason of transfer retirement, vacation of office or otherwise,
may act on the evidence already recorded by his predecessor and frame a charge without re-examining the
witnesses already examined by the predecessor Magistrate.
Sub-section (2) further provides that the above provisions contained in sub-section (1) shall also be applicable
when a case is transferred from one Magistrate to another.
In Thingbaijam v. State of Manipur, the High Court of Gauhati clarified the conditions necessary for validity of
conviction on the basis of evidence partly recorded by one Judge and partly by another in a Session trial. The
Court, inter alia, observed: “A Judge who has recorded the evidence in the case either in part or in whole can act
on the evidences recorded in the case which are partly recorded by his successor and partly recorded by himself.
For the application of Section 326 of the Code three postulates must exist together. First is, a Judge should have
recorded the evidence in the case either in part or in whole. Next is, they said Judge should have ceased to
exercise jurisdiction in that case, and third is, another Judge should have succeeded him and such successor Judge
must have jurisdiction to try the offences concerned. If the above three conditions are completed, the successor
Judge Stands empowered to act on the evidence already recorded in the case.”
24
The Madras High Court has, however, held that when a case is transferred from the Magistrate of second class to
the Special Magistrate, first class, the latter being superior to the former, could not be said to be a successor of the
former within the meaning of Section 326 and, therefore, the conviction based on the evidence partly recorded by
the former, was liable to be quashed.
Judgment:
Where the Magistrate does not wish to decide the case on the basis of evidence partly or wholly recorded by his
predecessor, he may re-summon the witnesses and re-start the inquiry or trial of the case.
This section also empowers the successor Judge/Magistrate to act and give judgment on the evidence recorded by
his predecessor. But the judgment must have been written, signed and pronounced by himself. In other words, this
section does not empower a succeeding Magistrate to deliver the judgment written by his predecessor.
Exceptions:
The section does not apply to the following cases:—
(1) Summary trials,
(2) Cases in which proceedings have been stayed under Section 322 of the Code;
(3) Cases in which proceedings have been remitted to a superior Court under Section 325 of the Code.
(22) SECTION 327 – COURT TO BE OPEN
Section 327 reads as follows,
(1) The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall
be deemed to be an open Court, to which the public generally may have access, so far as the same can
conveniently contain them: Provided that the presiding Judge or Magistrate may, if he thinks fit, order at
any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular
person, shall not have access to, or be or remain in, the room or building used by the Court.
(2) Notwithstanding anything contained in sub- section (1), he inquiry into and trial of rape or an offence
under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code
shall be conducted in camera: Provided that the presiding judge may, if he thinks fit, or on an application
made by either of the parties, allow any particular person to have access to, or be or remain in, the room
or building used by the court.
(3) Where any proceedings are held under sub- section (2), it shall not be lawful for any person to print or
publish any matter in relation to any such proceedings, except with' the previous permission of the court.]

CONCLUSION:
Inquiries and trial are simply two out of the various stages in the due course of deciding a case of criminal nature.
They are both defined as under the Code of Civil Procedure, 1973.
An inquiry is done either by a magistrate or by the court. It is not to be done by police officials. Inquiry is
different from investigation. Inquiry according to the Code includes every inquiry other than a trial conducted
under this Code, by a Magistrate or court. It relates to proceedings of Magistrates prior to trial. [Section 2 (g)]
Section 159 of the Code empowers a Magistrate on receipt of a police report under Section 157, Cr.P.C. to hold a
preliminary inquiry in order to ascertain whether an offence has been committed and, if so, whether any persons
should be put upon their trial.
The cases which are triable by the court of sessions, the commencement of proceedings takes place before a
Magistrate, which are in the nature of an inquiry preparatory to sending the accused to take his trial before the
Court of Session.

BIBLIOGRAPHY
BOOKS:-
(i) Kelkar R.V. Criminal Procedure,( Lucknow: Eastern Book Company, 2018).
(ii) Misra S.N. The code of criminal procedure,(Allahabad: Central Law Publication, 2019).
(iii) Lal Batuk. The code of criminal procedure, (Allahabad: Central Law Agency, 2018).
(iv) Paranjape N.V. The code of criminal procedure (Allahabad: Central Law Agency, 2016).
(v) Chaturvedy M.D. Code of criminal Procedure (Allahabad: Allahabad law Agency
Publications, 2019).

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GENERAL PROVISIONS AS TO

INQUIRIES AND TRIAL

Final Draft Submitted In Partial Fulfillment Of Course Titled

SUBMITTED TO- SUBMITTED BY –

MISS PREETI ANAND KUMAR UTSAV

FACULTY OF CRIMINAL LAW - II ROLL NO. - 2123

4th Semester, B.A.LL.B.(Hons.)

Chanakya National Law University

2|Page GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

Her valuable suggestions were of immense help throughout my project work.

3|Page GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

1.1 Aims and objective of the project…………………...............................................................06

4|Page GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

5|Page GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

Primary Sources – Case laws, constitutional provision, legislative provision.

6|Page GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

(2) That he had been convicted or acquitted at the trial; and

(3) That such conviction or acquittal is in force.

Principle of Issue – Estoppel:

10 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

(4) SECTION 302 -- PERMISSION TO CONDUCT PROSECUTION

(06) SECTION 305 PROCEDURE WHEN CORPORATION OR REGISTERED SOCIETY IS

(07) SECTION 306 -- TENDER OF PARDON TO ACCOMPLICE AND SECTION 307 –

15 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

(09) SECTION 309 POWER TO POSTPONE OR ADJOURN PROCEEDINGS

16 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

(10) SECTION 310 LOCAL INSPECTION

(11) SECTION 311-- POWER TO SUMMON MATERIAL WITNESS, OR EXAMINE PERSON

(13) SECTION 315 – ACCUSED PERSON TO BE COMPETENT WITNESS AND SECTION

Accused person to be competent witness:

(15) SECTION 319 – POWER TO PROCEED AGAINST OTHER PERSONS APPEARING TO

Power to proceed against other persons appearing to be guilty of offence:

(16) SECTION 320 – COMPOUNDING OF OFFENCES

(17) SECTION 321 – WITHDRAWAL FROM PROSECUTION

Withdrawal from prosecution:

The main distinction between the two is as follows —

27 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

(19) SECTION 324 – TRAIL OF PERSONS PREVIOUSLY CONVICTED OF OFFENCES AGAINST

Section 324 reads as following,

(20) SECTION 325 PROCEDURE WHEN MAGISTRATE CANNOT PASS SENTENCE

(21) SECTION 326 CONVICTION OR COMMITMENT ON EVIDENCE PARTLY

(22) SECTION 327 – COURT TO BE OPEN

Section 327 reads as follows,

30 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

31 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

32 | P a g e GENERAL PROVISION AS TO ENQUIRIES AND TRAILS

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