DEFINITIONS ..............................................................................................................................

13
CONSTITUTION OF CRIMINAL COURTS AND OFFICES (only relevant portions from bare act
have been added) ............................................................................................................................. 15
PREVENTIVE MEASURES and SECURITY PROCEEDINGS ................................................... 19
Preventive action by police officer .............................................................................................. 19
Part I: Prevention of Cognizable Offences .............................................................................. 19
Part II: Prevention of Injury to Public Property .................................................................... 21
Part III: Inspection of Weights and Measures ........................................................................ 21
Security proceeding under CrPC ............................................................................................... 22
Part 1: Security for Peacekeeping ........................................................................................... 22
Part II: Security for Good Behaviour ..................................................................................... 23
COMPLAINTS TO MAGISTRATES ........................................................................................... 25
Cognizance of an FIR and Complaint ........................................................................................ 25
Difference Between FIR and Complaint ..................................................................................... 26
Procedure of Issue of Process and Examination of Complainant when a Complaint is Filed
Before a Magistrate .................................................................................................................... 27
Procedure of Dismissal of Complaint under the Code of Criminal Procedure, 1973................... 29
Reasons for Dismissal of Complaint ....................................................................................... 30
Procedure to be Followed for Dismissal .................................................................................. 31
PRE-ARREST PROCEDURE ....................................................................................................... 32
INITIATION OF CRIMINAL PROCEEDINGS: ...................................................................... 32
■ Sec.156 and 157.............................................................................................................. 32
■ Sec.155(2) r/w Sec.3(1)(a) ............................................................................................... 32
Sec.201 ................................................................................................................................... 32
Assistance by persons/public: ................................................................................................. 32
○ This is given to the Police. .............................................................................................. 32
PRESENCE OF ACCUSED FOR TRIAL ................................................................................. 33
● Sec.204 Issue of Process ................................................................................................. 33
● Sec.87 Issue of warrant in lieu of or in addition to summons ......................................... 33
Summons to the accused and its service .................................................................................. 33
● Sec.62 to 67 deals with how summons are to be served................................................... 33
Warrants ................................................................................................................................ 34
Summons Case and Warrant Case (done in class but not in syllabus. Please read the relvant
sections relating to trial of warrant cases as well.)....................................................................... 34
ARREST........................................................................................................................................ 35
INTRODUCTION - ................................................................................................................... 35
EXECUTION OF WARRANT OF ARREST............................................................................. 36
○ Sec.81 Procedure by Magistrate before whom such person arrested is bought .............. 36
Duty and Right to assist in execution of a warrant of arrest ....................................................... 36
ARREST WITHOUT WARRANT ............................................................................................ 37
● Sec.41 -- When police may arrest without a warrant...................................................... 37
Procedure for making arrest ...................................................................................................... 38
● Sec.41B Procedure for arrest and duties of officer making arrest .................................. 38
● Sec.41C Control Room at districts ................................................................................. 38
ARREST BY A PRIVATE PERSON WITHOUT WARRANT .................................................. 39
ARREST BY MAGISTRATE .................................................................................................... 39
● Sec.44............................................................................................................................. 39
ARREST HOW MADE.............................................................................................................. 39
● Sec.46 → Arrest how made ............................................................................................ 39
ADDITIONAL POWERS FOR EFFECTING ARREST............................................................ 40
● Search of Place............................................................................................................... 40
● Pursuit of offenders ....................................................................................................... 40
● Deputing Subordinate to arrest...................................................................................... 40
○ Order in writing specifying the details ........................................................................... 40
○ Re-arrest has same powers under Sec.46 and 49 ............................................................ 40
POST ARREST PROCEDURES ............................................................................................... 40
● Search of arrested person .............................................................................................. 40
● Seizure of offensive weapons .......................................................................................... 41
● Medical examination of accused after arrest .................................................................. 41
○ Sec.53 -- Examination of accused by medical practitioner at the request of ................... 41
○ Sec 54 -- Examination of arrested person by medical officer .......................................... 41
■ Cl.3 -- copy of report to be sent to the arrested person ................................................... 41
● Sec.58 -- Reports of arrest to be sent to DM ................................................................... 41
RIGHTS OF ARRESTED PERSON .......................................................................................... 41
● Right to Know Grounds of Arrest .................................................................................. 41
○ Information regarding the right to be released on bail → Sec.50(2) ............................... 42
 ○ Sec.56 -- Person arrested to be taken before Magistrate or officer in charge of Police
Station .................................................................................................................................... 42
○ Sec. 76 -- Person arrested to be brought before Court without delay ............................. 42
● Right not to be detained for more than 24 hrs without judicial scrutiny ........................ 42
○ FR under Art.22(2) ........................................................................................................ 42
● Right to Consult a legal practitioner .............................................................................. 42
● Rights at Trial................................................................................................................ 42
● Right to be examined by a medical practitioner ............................................................. 43
Consequences of Non-Compliance with provisions relating to arrest ......................................... 43
CASE LAWS: ............................................................................................................................ 46
○ Under section 41 police have the power to arrest a person without a warrant ............... 46
Miscellaneous:............................................................................................................................ 48
● Sec.45 Protection of members of the Armed Forces from Arrest ................................... 48
● Sec.82 Proclamation for person absconding ................................................................... 48
○ Discussed in Ss.82 to 86 .................................................................................................. 48
● Sec.83 Attachment of property of person absconding .................................................... 48
○ Sec.84 → Claims and objections to attachment .............................................................. 48
● Sec.89 Arrest for breach of bond of appearance ............................................................ 48
SEARCH, SEIZURE AND PRODUCTION OF EVIDENCE ........................................................ 48
● Chapter VII, containing Sections 91-100........................................................................ 48
○ Seizure under Section 102 means actually taking possession in pursuance of a legal
process.................................................................................................................................... 49
PROCEDURE RELATING TO SEARCH AND SEIZURE ....................................................... 49
○ Only the District Magistrate or Chief Judicial Magistrate can grant the search of a
document which is in the custody of postal or telegraph authority. ........................................ 49
○ articles/things which are considered as objectionable as per Section 94 – ...................... 50
Persons in charge of a closed place to allow search..................................................................... 51
CONSEQUENCES OF IRREGULARITIES OR ILLEGALITIES IN A
SEARCH 51
POWERS OF POLICE OFFICER ............................................................................................. 52
● The power of Police Officers to seize certain property is given under Section 102 in...... 52
● Police may perform a search without a warrant in your house or office if they ........... 52
Landmark Judgments ................................................................................................................ 52
INVESTIGATION BY POLICE .................................................................................................... 53
 INVESTIGATION ..................................................................................................................... 53
Meaning of FIR .......................................................................................................................... 53
Purpose of FIR/ WHAT IS THE EVIDENTIARY VALUE OF FIR .......................................... 54
Procedure after Recording FIR .................................................................................................. 54
Procedure for not recording FIR ............................................................................................ 55
· Evidentiary Value of Statements made to Police ............................................................ 55
· Evidentiary Value of Statements made to Magistrates ................................................... 55
Inculpatory and Exculpatory Confession................................................................................ 56
· Procedure to follow on completion of investigation ............................................................ 56
INVESTIGATIONS & INQUIRIES INTO CAUSE OF UNNATURAL DEATHS, SUICIDES,
OF DEATH IN POLICE CUSTODY ETC................................................................................. 57
Responsibilities of the Executive Magistrate ........................................................................... 58
SUICIDE ................................................................................................................................ 59
COGNIZANCE OF OFFENCE AND COMMENCEMENT OF JUDICIAL PROCEEDINGS ..... 59
COGNIZANCE OF OFFENCE ................................................................................................. 59
Meaning ................................................................................................................................. 59
By whom ................................................................................................................................ 59
Cognizance when taken. ......................................................................................................... 60
Transfer of case. ..................................................................................................................... 60
Time limitations...................................................................................................................... 60
Restraints on taking cognizance. ............................................................................................ 60
LIMITATIONS ON THE POWER TO TAKE COGNIZANCE OF AN OFFENCE ................. 61
Prosecution for contempt of lawful authority of public servants............................................. 61
Prosecution for offences against public justice and for offences relating to documents given in
evidence .................................................................................................................................. 61
Prosecution for offences against the State ............................................................................... 61
Prosecution for the offence of criminal conspiracy ................................................................. 62
Prosecution of judges and public servants .............................................................................. 62
Prosecution of members of armed forces. ............................................................................... 62
Prosecution for offences against marriage. ............................................................................. 62
Prosecution of husband for rape ............................................................................................. 63
Prosecution for defamation .................................................................................................... 63
SCRUTINY OF THE COMPLAINT ......................................................................................... 63
 Examination of the complainant ............................................................................................. 63
Enquiry or investigation for further scrutiny of the complaint ............................................... 64
Dismissal of complaint. ........................................................................................................... 64
ISSUE OF PROCESS ................................................................................................................ 65
Power to dispense with the personal attendance of the accused .............................................. 66
SPECIAL SUMMONS IN CASES OF PETTY OFFENCES ...................................................... 66
SUPPLY TO THE ACCUSED COPIES AND PROCEDURE AFTERWARDS......................... 66
COMMITMENT OF CASE TO SESSIONS COURT ................................................................ 67
Accused’s right to participate in revisional proceedings arising from committing Magistrate 68
CONSOLIDATION OF CASES................................................................................................. 68
BAIL.............................................................................................................................................. 68
INTRODUCTION: .................................................................................................................... 68
BAIL IN BAILABLE OFFENCES............................................................................................. 69
● Section 436 provides for the release on bail of a person accused of a bailable offense. ... 69
● Section 436A .................................................................................................................. 70
● SUMMARY OF S.436.................................................................................................... 70
Cases: ......................................................................................................................................... 70
BAIL IN NON-BAILABLE OFFENCES ................................................................................... 71
Cases .......................................................................................................................................... 71
WHEN RELEASE ON BAIL IS MANDATORY ....................................................................... 72
When arrestee is not accused of a non-bailable offence .......................................................... 72
When the investigation is not completed within the time prescribed....................................... 73
When no reasonable grounds exist for believing the accused guilty of non-bailable offence.... 73
Where trial before Magistrate not concluded within 60 days .................................................. 73
Where no reasonable ground exists for believing the accused guilty after conclusion of trial but
before judgement. ................................................................................................................... 73
DISCRETION IN GRANTING BAIL IN CASES OF NON-BAILABLE OFFENCES .............. 73
● How is discretion to be exercised.................................................................................... 74
● No bail in case of offence punishable with death or imprisonment for life ..................... 74
● Bail with conditions ....................................................................................................... 74
● Power of HC or Sessions Court in granting bail............................................................. 75
ANTICIPATORY BAIL ............................................................................................................ 75
Conditions Imposed under S.438(2) ........................................................................................... 76
 Guidelines to be Followed for anticipatory bail ...................................................................... 76
Scope And Ambit Of Anticipatory Bail .................................................................................. 76
CANCELLATION OF BAIL ..................................................................................................... 77
Grounds for cancellation ........................................................................................................ 78
BAIL AFTER CONVICTION ................................................................................................... 79
POWERS OF APPELLATE COURT IN RESPECT OF GRANTING BAIL ............................ 80
Sec.378 ................................................................................................................................... 80
PROVISIONS REGARDING BOND OF ACCUSED AND SURETIES .................................... 80
TRIAL ........................................................................................................................................... 81
· Trial of Warrant Cases: ..................................................................................................... 81
· Trial of Summons case:...................................................................................................... 82
· Summary Trial .................................................................................................................. 84
CHARGES .................................................................................................................................... 84
INTRODUCTION...................................................................................................................... 84
Section 173. ............................................................................................................................ 84
FORM AND CONTENTS OF A CHARGE ............................................................................... 85
● Section 213 of Cr.PC ...................................................................................................... 85
Sec.211(5) ............................................................................................................................... 85
ALTERATION OF CHARGE AND PROCEDURE THEREAFTER ........................................ 86
● The court should not alter or add to any charge to the prejudice of the accused person. 86
BASIC RULE REGARDING CHARGES .................................................................................. 87
The exceptions to the basic rule .............................................................................................. 87
○ Offences are considered to be of the same kind when they are punishable with the same
amount of punishment under the same section of the law. [S. 219(2)] ..................................... 87
Joinder of Charges ..................................................................................................................... 88
Conviction of an offence not charged when such offence is included in an offence charged ........ 89
Withdrawal of remaining charge on conviction on one of several charges.................................. 89
EFFECT OF OMISSION TO FRAME, OR ABSENCE OF OR ERROR IN CHARGE ............ 89
TRIAL BEFORE COURT OF SESSIONS .................................................................................... 90
● Section 225-Trial to be conducted by the Public Prosecutor........................................... 90
● Section 226-Opening Case For Prosecution.................................................................... 90
● Section227-Discharge ..................................................................................................... 90
● Section 228-Framing Of Charge .................................................................................... 90
 ● Section 229 – Conviction on Plea of Guilty..................................................................... 91
● Section 230 – Date For Prosecution Evidence and Section 231 – Evidence for Prosecution
91
● Section 232 – Acquittal .................................................................................................. 91
● Section233 – Defence...................................................................................................... 91
● Section 235 – Judgement Of Acquittal or Conviction and Section 236 Previous Conviction
91
EVIDENCE FOR PROSECUTION ........................................................................................... 91
Steps in evidence presentation of prosecution. ........................................................................ 92
Summoning witnesses ............................................................................................................. 92
Examination of witnesses ........................................................................................................ 92
Record of evidence ................................................................................................................. 92
Evidence for defence............................................................................................................... 93
WARRANT CASES ...................................................................................................................... 93
INTRODUCTION...................................................................................................................... 93
Trial of Warrant Cases by Magistrate Where Cases Instituted On a Police Report ................... 93
● Section 207: ................................................................................................................... 93
● Section 238: Compliance with section 207 ...................................................................... 93
● Section 239: When accused shall be discharged ............................................................. 94
● Section 240: Framing of charge ..................................................................................... 94
● Section 241: Conviction on plea of guilty ....................................................................... 94
● Section 242: Evidence for prosecution ........................................................................... 94
● Section 243: Evidence for defence .................................................................................. 95
● Section 248: Acquittal or conviction............................................................................... 95
● Section 249: Absence of complainant ............................................................................. 95
● Death of complainant in trial ......................................................................................... 95
● Section 250: Compensation for accused without reasonable cause ................................. 95
Trial of Warrant Cases Instituted Otherwise Than On a Police Report ..................................... 95
● Section 244: Evidence for prosecution ........................................................................... 95
● Section 245: When accused shall be discharged ............................................................. 96
● Section 246: Procedure where accused is not discharged ............................................... 96
● Section 247: Evidence for defence .................................................................................. 96
● Section 248: Acquittal or conviction............................................................................... 96
 ● Section 249: Absence of complainant ............................................................................. 96
● Death of complainant in trial ......................................................................................... 97
● Section 250: Compensation for accused without reasonable cause ................................. 97
SUMMONS CASES....................................................................................................................... 97
INTRODUCTION...................................................................................................................... 97
Section2(w) ............................................................................................................................. 97
Summons case into a warrant case ............................................................................................. 98
PROCEDURE FOR TRIAL IN SUMMONS CASE ................................................................... 98
● Section 251 – Explaining the substance of allegation to the accused ............................... 98
● Section 252 – The Conviction On Plea of Guilty............................................................. 98
● Section 253- The Absence of Accused............................................................................. 98
● Section 254- The Procedure When The Accused Is Not Convicted On Plea ................... 99
● Section 255- Acquittal or Conviction.............................................................................. 99
● Section 256 – Death or Non-Appearance of the Complainant ........................................ 99
● Section 257- The Withdrawal of Complaint ................................................................... 99
● Section 258- Discharge of Summons Case ...................................................................... 99
Procedure if the accused not convicted on plea ........................................................................ 100
Prosecution case ....................................................................................................................... 100
Hearing of the defence: – (Defence Case) ................................................................................. 100
SUMMARY TRIAL .................................................................................................................... 100
INTRODUCTION.................................................................................................................... 100
○ Offences which are not punishable with death, imprisonment for life or imprisonment for
more than two years. ............................................................................................................ 101
→ Sec. 378-81 IPC ................................................................................................................ 101
PROCEDURE.......................................................................................................................... 101
● Summons case procedure subject to the provisions of Sec.262 to 265 ........................... 101
○ Summons case procedure: ........................................................................................... 101
■ In summons and summary trials, a formal charge is not written down. ....................... 101
● Punishment awardable ................................................................................................ 102
● Summary trial to be given up in favour of regular trial ............................................... 102
● Judgement ................................................................................................................... 102
DISTINCTION OF SUMMARY TRIALS WITH OTHER TRIALS ....................................... 102
PLEA BARGAINING.................................................................................................................. 102
 CHAPTER XXIA – PLEA BARGAINING .......................................................................... 102
PROVISIONS .......................................................................................................................... 103
● Section 265-A (Application of Chapter) ....................................................................... 103
● Section 265-B (Application for Plea Bargaining) .......................................................... 103
● Section 265-C (Guidelines for Mutually satisfactory disposition) ................................. 104
● Section 265-D (Report of the mutually satisfactory disposition) ................................... 104
● Section 265-E (Disposal of the case) ............................................................................. 104
● Section 265-F (Judgment of the Court) ........................................................................ 104
● Section 265-G (Finality of Judgment) .......................................................................... 104
● Section 265-H (Power of the Court in Plea Bargaining) ............................................... 104
● Section 265-I (Period of detention undergone by the accused to be set off against the .. 105
● 265-J (Savings)............................................................................................................. 105
● Section 265-K (Statement of the accused to be used) .................................................... 105
● Section 265-L (Non-application of the chapter) ............................................................ 105
TYPES OF PLEA BARGAINING ........................................................................................... 105
● Sentence Bargaining .................................................................................................... 105
● Charge Bargaining ...................................................................................................... 105
● Fact Bargaining ........................................................................................................... 105
JUDICIAL PRONOUNCEMENTS.......................................................................................... 106
JUDGEMENT ............................................................................................................................. 106
FORMS AND CONTENT OF JUDGEMENT ......................................................................... 106
Language and content of Judgement .................................................................................... 107
Judgement In Abridged Forms............................................................................................. 108
POST CONVICTION ORDERS .............................................................................................. 108
● Section 360................................................................................................................... 108
NO IMPRISONMENT IN CASE OF YOUNG OFFENDERS ................................................. 108
JUDICIAL DISCRETION IN SENTENCING ......................................................................... 109
DECISIONS AS TO SPECIFIC PUNISHMENT ..................................................................... 109
COMPENSATION AND COSTS ............................................................................................. 110
VICTIM COMPENSATION SCHEME (Section 357A) ........................................................... 111
PRONOUNCEMENT OF JUDGEMENT ................................................................................ 112
APPEAL, REVIEW, REVISION ................................................................................................. 112
APPEALS TO SUPERIOR COURTS ...................................................................................... 112
 Part I: Appeals to the Supreme Court .................................................................................. 112
Part II: Appeals to the High Court ....................................................................................... 113
Part III: Appeals from Courts of Session .............................................................................. 113
· APPEAL LIES IN THREE CIRCUMSTANCES & ITS PROCEDURE: ........................ 114
I. Appeals against Convictions .............................................................................................. 114
II. Appeals in Cases of Acquittal .......................................................................................... 115
NO APPEAL IN CERTAIN CASES ........................................................................................ 116
Special Right to Appeal ............................................................................................................ 117
Judicial Power in Disposal of Appeals ...................................................................................... 118
Section 381: Appeal of Sessions Court: how it is to be heard ................................................ 118
Section 382: Form of Appeal ................................................................................................ 119
Section 383: Procedure when the appellant is in jail ............................................................. 119
Section 384: Summary dismissal of Appeal .......................................................................... 119
Section 385: Appeal when not dismissed summarily ............................................................. 120
Section 386: Powers of the Appellate Court .......................................................................... 120
Section 387: Judgments of Subordinate Appellate Courts .................................................... 121
Section 389: Suspension of sentence pending the appeal; release of appellant on bail ........... 121
REVISIONAL JURISDICTION .............................................................................................. 123
TRANSFER OF CASES .............................................................................................................. 125
REFERENCE (She has taught this but its not in the syllabus) ...................................................... 126
EXECUTION, SUSPENSION, REMISSION OF SENTENCES .................................................. 127
EXECUTION OF DEATH SENTENCE .................................................................................. 127
Execution of sentence of death passed by High court ............................................................... 127
DUTY OF JAIL SUPERINTENDENT IN CERTAIN CASES ................................................. 127
POSTPONEMENT OF EXECUTION OF DEATH SENTENCE ............................................ 128
Postponement of capital sentence on a pregnant woman .......................................................... 128
PLACE OF IMPRISONMENT ................................................................................................ 128
Execution of sentences of imprisonment ................................................................................... 129
A warrant for the execution of sentence of imprisonment ........................................................ 129
EXECUTION OF THE SENTENCE OF FINE ........................................................................ 129
Effect of such warrant .............................................................................................................. 130
Suspension of execution of the sentence of imprisonment in default of payment of fine............ 130
GENERAL PROVISIONS REGARDING THE EXECUTION ............................................... 130
 The sentence on an escaped convict .......................................................................................... 131
The sentence on offender already sentenced for another offence .............................................. 131
Period of detention undergone by the accused against the sentence of imprisonment............... 131
Return of warrant on execution of sentence ............................................................................. 132
Money ordered to be paid recoverable as a fine ....................................................................... 132
SUSPENSION AND REMISSION OF SENTENCES .............................................................. 132
Suspension or remission of sentences ....................................................................................... 133
● The procedure followed is given under Section 432 of CrPC, 1973. ............................. 133
COMMUTATION OF SENTENCE ......................................................................................... 133
Restriction on powers of remission or commutation in certain cases ........................................ 134
Concurrent power of the Central Government in case of death sentences ................................ 134
MAINTENANCE ........................................................................................................................ 135
Applicability of the Provisions.................................................................................................. 135
Persons Entitled to Claim Maintenance ................................................................................... 135
Essential Conditions for Granting Maintenance....................................................................... 138
1. Sufficient means to maintain: .............................................................................................. 138
2. Neglect or Refusal to Maintain: .......................................................................................... 139
3. A person claiming Maintenance must be unable to maintain itself: ......................................... 139
4. Special Conditions when Maintenance is claimed by wife: .................................................... 140
Alteration in Allowance Ordered by the Magistrate ............................................................. 140
Jurisdiction and enforcement of the order of the magistrates under section 125 CRPC 1973 ... 141
Jurisdiction of Magistrates ................................................................................................... 141
Enforcement of Order of Maintenance ................................................................................. 143
JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2000 ................................................ 144
HISTORY OF THE JUVENILE JUSTICE ACT .......................................................................... 144
FUNDAMENTAL PRINCIPLES OF JUVENILE JUSTICE ........................................................ 145
JUVENILE: MEANING AND DEFINITION .............................................................................. 147
APPREHENSION AND PRODUCTION .................................................................................... 148
Bail of Juvenile (Section 12): ................................................................................................ 148
JUVENILE JUSTICE BOARD ................................................................................................ 149
INQUIRY ................................................................................................................................. 151
PRESUMPTION AND DETERMINATION OF AGE ................................................................. 152
OFFENCES AND PUNISHMENT ............................................................................................. 153
 CHILD IN NEED OF CARE AND PROTECTION ..................................................................... 156
CHILD WELFARE COMMITTEE ............................................................................................. 157
HOMES AND INSTITUTIONS ................................................................................................. 159
REHABILITATION AND SOCIAL INTEGRATION ................................................................. 160
APPEAL AND REVISION ........................................................................................................ 163
CASE LAWS FOR ANALYSIS ................................................................................................... 164
1) A.N. Roy, Comissioner Of Police & Ors. v. Suresh Sham Singh .......................................... 164
2) Madhu Limaye v. Sub-Divisional magistrate....................................................................... 165
3) M. Krishnamurthy v Sub-divisional magistrate .................................................................. 166
4) Madhu Limaye vs. The State of Maharashtra .................................................................. 166
5) Medha Patkar v State of M.P - in relation to EXECUTIVE MAGISTRATE ..................... 167
6) Joginder Kumar vs. State of U.P. and Ors. ....................................................................... 168
7) Sheela Barse vs. State of Maharashtra ............................................................................ 169
8) State of Punjab v Ajab Singh AIR 1953 S. C. 10 ................................................................. 170
9) D.K. Basu vs. State of West Bengal ................................................................................... 171
10) Birendra Kumar Rai v union of India ................................................................................ 172
11) G. Kavitha v. Union of India ........................................................................................... 172
12) State through C.B.I. vs. Dawood Ibrahim Kaskar and Ors ............................................. 173
13) Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Ors............................... 174
14) K GOVVIND RAJ VS SUBIAN ......................................................................................... 175
15) RAJNESH VS NEHA ......................................................................................................... 176
16) Dilawar Singh vs State Of Delhi ......................................................................................... 177
17) STATE OF BIHAR VS JCS SALDHANA.......................................................................... 178
18) LALITA KUMARI VS STATE OF UP .............................................................................. 179
19) Sakiri Vasu vs State Of U.P. ............................................................................................... 181
20) KARTAR SINGH VS STATE OF PUNJAB....................................................................... 181
21) Shivappa vs State Of Karnataka ........................................................................................ 183
22) K VEERASWAMY VS UOI............................................................................................... 184
23) State Of Rajasthan, Jaipur vs Balchand ............................................................................. 185
DEFINITIONS
Offence
Section 2(n) of the CrPC defines the word “offence” to mean any act or omission made punishable
by any law for the time being in force and includes any act in respect of which a complaint may be
made under Section 20 of the Cattle-trespass Act, 1871. However, the term is more elaborately
defined under Section 40 of the IPC which states that “offence” denotes a thing made punishable
by the Code.

Section 39 of the CrPC imposes a duty on every person who is aware of the commission of or of
intention to commit an offence, to give information of certain offences which are specified in
Clause (i) to (xii) of sub-Section (1). An offence is what the legislature classes as punishable. Mens
Rea a bad intention or guilt is an essential ingredient in every offence.

Bailable Offence and Non-bailable Offence

A “bailable offence” means an offence which is shown as bailable in the First Schedule or which
is made bailable by any other law for the time being in force. “Non-bailable” offence means any
other offence. [Section 2(a)]

Cognizable Offence and Non-cognizable Offence

“Cognizable offence” means an offence for which, and “cognizable case” means a case in which,
a police officer may, in accordance with the First Schedule or under any other law for the time
being in force, arrest without warrant.

“Non-cognizable offence” means an offence for which, and “non-cognizable” case means a case
in which, a police officer has no authority to arrest without warrant. Thus, a non-cognizable offence
needs special authority to arrest by the police officer. [Section 2(c) and 2(l)]
In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or more
(not ordinarily all) of the oences are cognizable.
(Note: It may be observed from the First Schedule that non-cognizable oences are usually bailable
while cognizable oences are generally non-bailable).
Complaint
“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his
taking action under this Code that some person, whether known or unknown, has committed an
oence, but it does not include a police report. [Section 2(d)]
However, a report made by the police ocer in a case which discloses after investigation, the
commission of a non-cognizable oence shall be deemed to be a complaint, and the police ocer
making the report as a complainant. In general a complaint into an oence can be led by any person
except in cases of oences relating to marriage, defamation and oences mentioned under Sections
195 and 197. A complaint in a criminal case is what a plaint is in a civil case. The requisites of a
complaint are:
an oral or a written allegation;
some person known or unknown has committed an oence; it must be made to a magistrate; and
it must be made with the object that he should take action.
There is no particular format of a complaint. A petition addressed to the Magistrate containing an
allegation that an oence has been committed, and ending with a prayer that the culprit be suitably
dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705)

Police report is expressly excluded from the denition of complaint but the explanation to Section
2(d) makes it clear that such report shall be deemed to be a complaint where after investigation it
discloses commission of a non-cognizable oence. Police report means a report forwarded by a
police ocer to a Magistrate under Subsection (2) of Section 173.

Bail
It means the release of the accused from the custody of the ocers of law and entrusting him to the
private custody of persons who are sureties to produce the accused to answer the charge at the
stipulated time or date.
An “anticipatory bail” is granted by the High Court or a Court of Session, to a person who
apprehends arrest for having committed a non-bailable oence, but has not yet been arrested (Section
438). An opportunity of hearing must be given to the opposite party before granting anticipatory
bail (State of Assam v. R.K. Krishna Kumar AIR 1998 SC 144).

Inquiry
It means every inquiry other than a trial, conducted under this Code by a Magistrate or Court.
[Section 2(g)]. It carries the following three features:
i. the inquiry is dierent from a trial in criminal matters;
ii. an inquiry is wider than trial;
iii. it stops when the trial begins.

Investigation
It includes all the proceedings under this Code for the collection of evidence conducted by a police
ocer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
[Section 2(h)]
The three terms – ‘investigation’, ‘inquiry’ and ‘trial’ denote three dierent stages of a criminal case.
The rst stage is reached when a police ocer either on his own or under orders of a Magistrate
investigates into a case (Section 202). If he nds that no oence has been committed, he submits his
report to the Magistrate who drops the proceedings.
But if he is of a dierent opinion, he sends that case to a Magistrate and then begins the second stage
– a trial or an inquiry. The Magistrate may deal with the case himself and either convict the accused
or discharge or acquit him. In serious oences the trial is before the Session’s Court, which may
either discharge or convict or acquit the accused. (Chapter XVIII)

Judicial Proceeding
It includes any proceeding in the course of which evidence is or may be legally taken on oath. The
term judicial proceeding includes inquiry and trial but not investigation. [Section 2(i)]

Pleader
With reference to any proceedings in any Court, it means a person authorised by or under any law
for the time being in force, to practise in such Court and includes any other person appointed with
the permission of the Court to act in such proceeding. [Section 2(q)] It is an inclusive denition and
a non-legal person appointed with the permission of the Court will also be included.

Public Prosecutor
A “public prosecutor” means any person appointed under Section 24, and includes any person
acting under the directions of a Public Prosecutor. [Section 2(u)]
Public prosecutor, though an executive ocer is, in a larger sense, also an ocer of the Court and he
is bound to assist the Court with his fair views and fair exercise of his functions.

Summons and Warrant Cases

“Summons case” means a case relating to an oence and not being a warrant case. [Section 2(w)] A
“Warrant case” means a case relating to an oence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. [Section 2(x)]
Those cases which are punishable with imprisonment for two years or less are summons cases, the
rest are all warrant cases. Thus, the division is based on punishment which can be awarded. The
procedure for the trial of summons cases is provided by Chapter XX and for warrant cases by
Chapter XIX of the Code of Criminal Procedure.

CONSTITUTION OF CRIMINAL COURTS AND OFFICES (only relevant portions from bare act
have been added)

6. Classes of Criminal Courts.—Besides the High Courts and the Courts constituted under any
law,
other than this Code, there shall be, in every State, the following classes of Criminal Courts,
namely:—
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.
7. Territorial divisions.
8. Metropolitan areas.— a city or town whose population exceeds one million shall be a
metropolitan area for the purposes of this Code.
9. Court of Session.—(1) The State Government shall establish a Court of Session for every
sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Session Judges to
exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one sessions division may be appointed by the High Court to be also an
Additional Sessions Judge of another division, and in such case he may sit for the disposal of cases
at such place or places in the other division as the High Court may direct.

10. Subordination of Assistant Sessions Judges.—(1) All Assistant Sessions Judges shall be
subordinate to the Sessions Judge in whose Court they exercise jurisdiction.
(2) The Sessions Judge may, from time to time, make rules consistent with this Code, as to the
distribution of business among such Assistant Sessions Judges.
11. Courts of Judicial Magistrates.—(1) In every district (not being a metropolitan area) there
shall be established as many Courts of Judicial Magistrates of the first class and of the second class
(2) The presiding officers of such Courts shall be appointed by the High Court.

12. Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.—(1) In every
district (not being a metropolitan area), the High Court shall appoint a Judicial Magistrate of the
first class to be the Chief Judicial Magistrate.
(2) The High Court may appoint any Judicial Magistrate of the first class to be an Additional Chief
Judicial Magistrate, and such Magistrate shall have all or any of the powers of a Chief Judicial
Magistrate
(3) (a) The High Court may designate any Judicial Magistrate of the first class in any sub-division
as the Sub-divisional Judicial Magistrate and relieve him of the responsibilities specified in this
section as occasion requires.
(b) Subject to the general control of the Chief Judicial Magistrate, every Sub-divisional Judicial
Magistrate shall also have and exercise, such powers of supervision and control over the work of
the Judicial Magistrates (other than Additional Chief Judicial Magistrates) in the sub-division as
the High Court may, by general or special order, specify in this behalf.

13. Special Judicial Magistrates.—(1) The High Court may, if requested by the Central or State
Government so to do, confer upon any person who holds or has held any post under the
Government, all or any of the powers conferred or conferrable by or under this Code on a Judicial
Magistrate
Provided that no such power shall be conferred on a person unless he possesses such qualification
or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be appointed for such
term, not exceeding one year at a time, as the High Court may, by general or special order, direct.
2
14. Local jurisdiction of Judicial Magistrates.—(1) Subject to the control of the High Court, the
Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which
the Magistrates appointed under section 11 or under section 13 may exercise all or any of the
powers with which they may respectively be invested under this Code
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such
Magistrate shall extend throughout the district.

15. Subordination of Judicial Magistrates.—(1) Every Chief Judicial Magistrate shall be

subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the general
control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.
(2) The Chief Judicial Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Judicial Magistrates
subordinate to him.
16. Courts of Metropolitan Magistrates.—(1) In every metropolitan area, there shall be
established as many Courts of Metropolitan Magistrates, and at such places, as the State
Government may, after
consultation with the High Court, by notification, specify.
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The jurisdiction and powers of every Metropolitan Magistrate shall extend throughout the
metropolitan area.

17. Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate.—(1) The
High Court shall, in relation to every metropolitan area within its local jurisdiction, appoint a
Metropolitan Magistrate to be the Chief Metropolitan Magistrate for such metropolitan area.
(2) The High Court may appoint any Metropolitan Magistrate to be an Additional Chief
Metropolitan Magistrate, and such Magistrate shall have all or any of the powers of a Chief
Metropolitan Magistrate under this Code or under any other law for the time being in force as the
High Court may direct.

18. Special Metropolitan Magistrates.—(1) The High Court may, if requested by the Central or
State Government so to do, confer upon any person who holds or has held any post under the
Government, all or any of the powers conferred or conferrable by or under this Code on a
Metropolitan Magistrate, in respect to particular cases or to particular classes of cases
Provided that no such power shall be conferred on a person unless he possesses such qualification
or experience in relation to legal affairs as the High Court may, by rules, specify.
(2) Such Magistrates shall be called Special Metropolitan Magistrates and shall be appointed for
such term, not exceeding one year at a time, as the High Court may, by general or special order,
direct.

19. Subordination of Metropolitan Magistrates.—(1) The Chief Metropolitan Magistrate and

every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge; and
every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be
subordinate to the Chief Metropolitan Magistrate.
(3) The Chief Metropolitan Magistrate may, from time to time, make rules or give special orders,
consistent with this Code, as to the distribution of business among the Metropolitan Magistrates
and as to
the allocation of business to an Additional Chief Metropolitan Magistrate.

20. Executive Magistrates.—(1) In every district and in every metropolitan area, the State
Government may appoint as many persons as it thinks fit to be Executive Magistrates and shall
appoint one of them to be the District Magistrate.
(4) The State Government may place an Executive Magistrate in charge of a sub-division and may
relieve him of the charge as occasion requires; and the Magistrate so placed in charge of a sub-
division shall be called the Sub-divisional Magistrate.

21. Special Executive Magistrates.—The State Government may appoint, for such term as it may
think fit, Executive Magistrates, to be known as Special Executive Magistrates, for particular areas
or for the performance of particular functions and confer on such Special Executive Magistrates
such of the powers as are conferrable under this Code on Executive Magistrates, as it may deem
fit.

22. Local Jurisdiction of Executive Magistrates.—(1) Subject to the control of the State
Government, the District Magistrate may, from time to time, define the local limits of the areas
within which the Executive Magistrates may exercise all or any of the powers with which they may
be invested under this Code.

23. Subordination of Executive Magistrates.—(1) All Executive Magistrates, other than the
Additional District Magistrate, shall be subordinate to the District Magistrate and every Executive
Magistrate (other than the Sub-divisional Magistrate) exercising powers in a sub-division shall also
be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the
District Magistrate.
(2) The District Magistrate may, from time to time, make rules or give special orders, consistent
with this Code, as to the distribution of business among the Executive Magistrates subordinate to
him and as to the allocation of business to an Additional District Magistrate.

24. Public Prosecutors.—(1) For every High Court, the Central Government or the State
Government shall, after consultation with the High Court, appoint a Public Prosecutor and may
also appoint one or more Additional Public Prosecutors, for conducting in such Court, any
prosecution, appeal or other proceeding on behalf of the Central Government or State Government,
as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors for the purpose of
conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint
one or more Additional Public Prosecutors for the district:
Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may
be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be,
for another district.
(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names
of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public
Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional
Public Prosecutor for the district unless his name appears in the panel of names prepared by the
District Magistrate under sub-section (4).
(6) Notwithstanding anything contained in sub-section (5), where in a State there exists a regular
Cadre of Prosecuting Officers, the State Government shall appoint a Public Prosecutor or an
Additional Public Prosecutor only from among the persons constituting such Cadre:
Provided that where, in the opinion of the State Government, no suitable person is available in
such
Cadre for such appointment that Government may appoint a person as Public Prosecutor or
Additional Public Prosecutor, as the case may be, from the panel of names prepared by the District
Magistrate under sub-section (4).
(7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public
Prosecutor under sub-section (1) or sub-section (2) or sub-section (3) or sub-section (6), only if he
has been in practice as an advocate for not less than seven years.
(8) The Central Government or the State Government may appoint, for the purposes of any case or
class of cases, a person who has been in practice as an advocate for not less than ten years as a
Special Public Prosecutor:

25. Assistant Public prosecutors.—(1) The State Government shall appoint in every district one
or more Assistant Public Prosecutors for conducting prosecutions in the Courts of Magistrates.

25A. Directorate of Prosecution.—(1) The State Government may establish a Directorate of

Prosecution consisting of a Director of Prosecution and as many Deputy Directors of Prosecution
as it thinks fit.
(2) A person shall be eligible to be appointed as a Director of Prosecution or a Deputy Director of
Prosecution, only if he has been in practice as an advocate for not less than ten years and such
appointment shall be made with the concurrence of the Chief Justice of the High Court.
(3) The Head of the Directorate of Prosecution shall be the Director of Prosecution, who shall
function under the administrative control of the Head of the Home Department in the State.
(4) Every Deputy Director of Prosecution shall be subordinate to the Director of Prosecution.
(5) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed
by the State Government under sub-section (1), or as the case may be, sub-section (8) of section
24 to conduct cases in the High Court shall be subordinate to the Director of Prosecution.
(6) Every Public Prosecutor, Additional Public Prosecutor and Special Public Prosecutor appointed
by the State Government under sub-section (3), or as the case may be, sub-section (8) of section
24 to conduct cases in District Courts and every Assistant Public Prosecutor appointed under sub-
section (1) of section 25 shall be subordinate to the Deputy Director of Prosecution.

PREVENTIVE MEASURES and SECURITY PROCEEDINGS

Preventive action by police officer

Part I: Prevention of Cognizable Offences

Section 149 of the Code provides that "every police officer may interpose for the purpose of preventing,
and shall, to the best of his ability, prevent the commission of any cognizable offence". This section implies
that a police officer is empowered to take any preventive action to stop a cognizable offence from being
committed. A cognizable offence, as defined under Section 2 (c) of the code, means "an offence for which
the police has the power to arrest and investigate without the written authority of the Magistrate".
A general reading of the provision makes it categorical that the powers under this provision are very wide.
The use of the words "to the best of his ability" signifies that the section can be used to arrest and detain a
person in custody, to search any place related to the commission of a cognizable offence and require any
person to be interrogated for the purpose of prevention of the crime.

It may be noted that the section uses the word "shall" in the provision. It implies that it is not the power or
right of the police officer to prevent a cognizable offence but a binding duty, breach of which can result in
departmental proceedings.

Further, Section 150 provides that when an information with respect to an intention or design to commit an
act which shall be a cognizable offence under the Code, is received by a police officer, such officer should
transmit the information to his superior officer or any other officer whose duty is to prevent and take
cognizance of such offences (usually, the officer in charge of a police station). The code vests power to
arrest and investigate upon an officer of certain specific rank, for instance, Sub-inspector.

However, it is possible that at the time when the information is received the officer in charge (Inspector or
Sub-inspector, as the case may be) and all the sub-inspector of police are absent from the station house and
the information may be recorded by an officer of a junior rank (such as a constable or Assistant Sub-
inspector). Thus, since such officers have not been empowered to take action under the code, it is their duty
to transmit information to the police officers to whom he is subordinate.

Section 151 empowers a police officer "to make an arrest without orders from a Magistrate and without a
warrant, the person designing the commission of a cognizable offence, if it appears to such officer that the
commission of the offence cannot be otherwise prevented". Thus, Section 151 empowers the police officers
with similar powers as in the investigation of a cognizable case.

For the application of Section 151, the following essentials or requirements must be proved:
· The officer must have substantial knowledge of the design to commit an offence,
· The offence must be a cognizable offence according to Schedule 1 of the code,
· The arrest must pat be the first recourse to prevent the offence,
· The officer must have a reasonable belief that the commission of the offence cannot otherwise
be prevented

The Supreme Court has held that if the requirements for the exercise of power under Section 151, Cr.P.C.
are not fulfilled and the person is arrested, the arresting authority may be exposed to proceedings under the
law. It has further been said in Manikandan v. SI of Police that a person arrested on a mere suspicion
cannot be said to be a person against whom commission of a cognizable offence or non-bailable offence is
alleged or made out and so cannot, without more, be remanded to judicial custody and should be enlarged
on bail treating the case as that of a bailable offence.

The rules laid down in the code for arrest shall apply mutatis mutandis to arrest under this provision as well.
Section 151 (2) provides that "no person arrested under Section 151 (1) shall be detained in custody for a
period exceeding twenty-four hours from the time of his arrest unless his Further detention is required or
authorized under the provisions of the code" This provision is in consonance with Section 57 of the code
which provides for the procedure after arrest in general. The section has to be read with Sections 76 and
167 of the code.

Part II: Prevention of Injury to Public Property

Section 152 states that "a police officer may of his own authority interpose to prevent any injury attempted
to be committed in his view to any public property, movable or immovable or the removal or injury of any
public landmark or buoy or other mark used for navigation". This section is aimed at protecting any public
property to be destroyed by acts of an individual.

The term 'public' is defined under Section 12 of the Indian Penal Code, 1860as "public includes any class
of the public or community but that class must be numerically sufficient to be designated as public". The
term community cannot mean the residents of a particular household but it has a wider implication than that
.

Further, "public property" connotes any property to which the public has access without any restriction or
with permission of the competent authority. In Ram Kishore v. State, the court observed that public property
also includes property belonging to the State camping grounds and grounds left unoccupied for sanitary or
recreational purposes.

Part III: Inspection of Weights and Measures

As asserted before, the Code of Criminal Procedure aims to provide machinery for the administration of
substantive criminal law. The Indian Penal Code which the prime substantive criminal law specifically
deals with offences related to possession and use of false weights and measures with the intention to deceive
or defraud customers of such enterprises possessing the false weights and measures.

It has been occasionally noticed that several vendors possess and use false weights and measuring
instruments to increase their profits by unscrupulous means. However, the penal laws take a stern look at
these acts and such actions are made punishable under Section 264 to 267 of the IPC. Now, the question is
the determination of the fact of whether false weight is being possessed or used or made and sold.

For the above purpose Section 153 of the Criminal Procedure Code, 1973 empowers any officer in charge
of a police station to conduct a search in such places where he has a reasonable suspicion that a false weight
or measuring technique is being used, made or sold. The exercise of powers under this provision is subject
to the following conditions:
· The place to be searched must be within the local jurisdiction of the police station,
· The search must be conducted by an officer in charge of the police station or any other officer
not below the rank of Sub-Inspector, The search must be conducted according to the procedure
for general search under Section 103,
· The officer must have sufficient reason to believe that there are in such place "any weights,
measures or instruments for weighing which are false",
 ● The intention of the owner or person in possession of such a place should beto deceive or defraud
any other person.

If the above conditions are fulfilled, the officer can conduct a search in such place without any warrant or
written authorization by the Magistrate and seize any such false weights or measuring instruments
discovered.

Security proceeding under CrPC

Security Proceedings

The code empowers the courts to conduct security proceedings for two purposes. For the ease of
understanding, the article is divided into two parts each dealing with one of the purposes for exercising the
power to foist security upon such persons.

Part 1: Security for Peacekeeping

Security proceeding for keeping the peace "may be taken against a person under the following
circumstances":

On Conviction of an offence likely to cause a breach of the peace; This provision and provisions
hereinafter are to ensure the maintenance of public peace and tranquillity. The Code bestows carte blanche
powers to the Executive Magistrate for this purpose. Under this provision, if a person is convicted of any
offence, the nature of which is such that it will disrupt public order and peace, the Magistrate may convict
the person of such offence and at the time of conviction, require the person to execute a bond prohibiting
any recidivism of the same offence within three years of his release from prison. For instance, a person who
has been a part of an unlawful assembly preparing to cause a riot in the society is believed to be committing
an offence that will disturb public order,

The Important ingredients of the provision are:

Firstly, it applies to "offences under Chapter VIII of the Indian Penal Code including the offence of assault,
criminal force and criminal intimidation".

Secondly, the bond can be executed "with or without sureties" to take the guarantee in case there is a
violation of the conditions of the bond and the person escapes from justice.
Thirdly, the person must be "convicted by a court of competent jurisdiction" after a fair trial.

Fourthly, if the "conviction is set aside in an appeal or review or otherwise, the bond executed shall be
void".

In any other cases - Section 107 of Cr.P.C provides similar powers to require an offender to execute a
bond for maintenance of public serenity in any other cases where public order disruption is likely and
probable. The joint committee report on criminal law provided that "in order to be effective, proceedings
under the above section have to be taken urgently"tol and since these procedures relate to "maintenance of
peace and order in the society, the powers have been vested upon the executive Magistrates".

The objective of the provision is preventive in nature and not punitive. The section is designed "to enable
the Magistrate to take measures with a view to preventing the commission of offences involving breach of
peace or disturbance of public tranquillity". In Rajendra Singh Pathania v.. State, the court observed that
the object of the provisions is "to invoke it in an emergent situation when prompt action is necessitated to
deal with threatening apprehension of breach of peace"
The Executive Magistrate is the head of the police force in a district who is accountable for maintaining
peace and tranquillity. Thus, "he has absolute and unqualified discretion to decide whether or not it is
imperative, for maintenance of peace, to institute proceedings under Section 107". However, this discretion
must be guided by reason and not a whim. To ensure the reasonable exercise of power under this provision
the sine qua non have been obtruded by the courts:

Firstly, the Magistrate should be of "the opinion that there is sufficient ground for proceeding against the
person informed against".

Secondly, the Magistrate is "bound to record the reasons for forming such opinion before issuing notice
under Section 111".

Part II: Security for Good Behaviour

Sections 108, 109 and 110 of the Code provide for taking security for good behaviour from persons
involved in any kind of act constituting an offence under the Indian Penal Code. The provisions of these
sections affect the liberty of a person and hence, is violative of Article 21 of the Indian Constitution.

Therefore, the lawmakers considered it vital to vest the power upon Judicial Magistrate "to be exercised in
accordance with the procedure established by law". However, the provision was "amended by the Criminal
Procedure (Amendment) Act, 1980 to transfer the power from the Judicial Magistrate to the Executive
Magistrates".

Maintenance of law and order in the community is of prime importance under the Cr.P.C. Therefore, to
attain this objective, the code empowers the functionaries to obtain security from different classes of
persons. These are:
Proceedings against persons disseminating seditious matters - Section 108 of the Code empowers an
Executive Magistrate to "order a person to execute a bond if such person is known to be disseminating
seditious matters or matters amounting to intimidation or defamation of a judge". The jurisdiction under
this provision is "preventive and not punitive". The test under this section is whether the person proceeding
against has been disseminating seditious matters or any other matter as mentioned above and whether the
court fears a possibility of recidivism".

The second clause of the provision provides for "taking security for the dissemination of obscene material".
In the first part, it is essential that the dissemination was done intentionally whereas, for the second part,
the intention is not a consideration. Any person who "makes, produces, publishes or keeps for sale, imports,
exports conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation
any obscene matter" shall be included under this section. Moreover, the section does not only apply on the
commission of offence but also on attempt and abetment of the same offences.

Proceedings against Suspected Persons - Sec 109 of the r.P.C provides a procedure to "check and control
the persons who are likely to commit offences and it cannot be denied that this cannot be done unless they
are prevented from doing so by resorting to provisions such as Section 109. The provisions of Section 109
are so stringent that it may be "made an engine of oppression unless care is taken by the Magistrates to
prevent its abuse. The object of the section is to enable the Magistrate to take action against suspicious
strangers lurking within their jurisdiction"

While explaining the scope of the terms "conceal presence" under Section 109, the court in Abdul Ghafoor
v. The Emperor held that "these words are sufficiently wide to cover not only the concealment of bodily
presence in a house or grove, etc. but also the concealment of appearance by wearing a mask or covering
the face or disguising in any other way".

Now, in order to apply the provisions of Section 109, the courts have laid down two essential

conditions:

i. "The person must be taking precautions to conceal his presence, and

ii. The concealment must be with a view to committing a cognizable offence".

Security Proceedings against habitual offenders-Persons who "habitually commit offences of anti-social
traits like food adulteration or customs or corruption, not only deserve to be punished but certain action is
required to be taken against such persons to prevent recidivism on their part. The provision deals with
offences which are anti-social in nature, i.e. those directly affect the society at large. For instance, theft may
be an offence against the society but, however, it directly affects the one whose materials have been stolen.
On the other hand, food adulteration affects everyone in general.

In Emperor v. Vijaidatta Jha, the court averred that "the object of the section is to protect the public against
hardened and habitual offenders" .formation received by the police officer under this section "should not
be vague and must Indicate that person against whom the information is given is by habit an offender",
Therefore, in all these situations, the code entails that an Executive Magistrate is obliged to issue a show-
cause notice urging the person to state his reasons and explain why the Magistrate must not require him to
execute a bond to ensure peace and serenity in the society and if such person fails to show cause or the
Magistrate is not satisfied with his cause, he may order such person to execute a hand with the condition of
not repeating the offence.

Jurisdiction of Magistrates
According to the Code, only "Judicial Magistrates of the First Class can deal with and decide petitions for
maintenance" under Chapter IX. It has been provided by clause (g) of Section 461 that "if any Magistrate,
not being empowered by law in this behalf, makes an order of maintenance, his proceedings and such order
shall be void".

COMPLAINTS TO MAGISTRATES

Meaning and Purpose of Complaint. Difference between an FIR and a complaint.

Introduction

A First Information Report (FIR) is the absolute initial phase in the criminal issue where the realities of the
commission of wrongdoing are accounted for to the police by the individual who is an observer to the case,
unfortunate casualty or an individual who has information on a similar demonstration done by the charged
person.

The meaning of the FIR is given in the Code of Criminal Procedure, 1973 under Section 154 of the Code
which expresses that each data identifying with the commission of a cognizable offence, whenever offered
orally to an official responsible for a police headquarters, will be diminished to composing by him or under
his bearing, and be perused to the witness; and each such data, regardless of whether given recorded as a
hard copy or decreased to composing as previously mentioned, will be marked by the individual giving it,
and the substance thereof will be entered in a book to be kept by such official in such structure as the State
Government may endorse for this sake.

The tern complaint is defined under Section 2(d) of the Code. A "complaint" signifies any charge made
orally or recorded as a hard copy to a Magistrate, with a view to his making a move under this Code against
some individual, regardless of whether known or obscure, has submitted an offence, however, does exclude
a police report.

A report made by a cop for a situation which uncovers, after examination, the commission of a non
cognizable offence will be regarded to be a complaint; the police officer by whom such report is made will
be considered to be the complainant.

Cognizance of an FIR and Complaint

FIRS can be enlisted by an injured individual, an observer of an offence or whatever other individuals who
know about the wrongdoing. According to the arrangements of Section 154 of the CrPC the informant can
express the realities about the offence either recorded as a hard copy or Oral.

On account of Hallu v. State of Madhya Pradesh, it was held that the Section 154 doesn't necessitate that
the Report must be given by an individual who has individual information on the episode announced. The
provision discusses data identifying with the commission of a cognizable offence given to an official
accountable for a police headquarters.

A Magistrate can take cognizance of an endless supply of a complaint or something else, from that point
he analyzes the objection by inspecting the realities and the observers. On the off chance that he finds that
the complaint is with merits, the case is esteemed dedicated for preliminary and the officer gives the
procedure.

In the event that the offence is only triable by the Court of Session, the Magistrate submits the case to the
Court of Session. On account of a first data report, the offence included is of cognizable nature and in this
manner, the police have the position to start the examination in the said case without earlier consent from
the Magistrate and afterwards record a charge sheet.

Then again, when a Magistrate takes the insight of an offence based on a complaint, he arranges an
examination in the issue and can likewise guide the police to hold up an FIR on the off chance that he feels
that the offence is of a genuine sort.

Difference Between FIR and Complaint

The primary concern of distinction between an FIR and a complaint is that an FIR identifies with a
cognizable offence though a complaint can be petitioned for both cognizable and non-cognizable class of
offences. Despite the fact that FIR is like a complaint, there are contrasts as far as offences they manage,
disciplines, lawful results, evidentiary worth, and so forth..

Further, the FIR is required to be held up at the police headquarters close by the spot of the commission of
the wrongdoing, while the complaint can be documented with a Judicial or Metropolitan magistrate, with
the end goal of mentioning activity on it. Further, a complainant and a first witness need not be a similar
individual. Indian criminal laws don't give any exacting structure to an objection, and in this manner, a
sworn statement or a request may likewise add up to a complaint in the official courtroom. On the contrary,
the FIR is, for the most part, is a pre-characterized design.

At the point when a witness moves toward the police specialists to advise about the commission of a
cognizable offence, it is called recording a complaint. This data as a complaint, when enlisted, as per 154
of the Code of Criminal Procedure, 1973, turns into an FIR. As it were, subsequently, the complaint is a
phase preceding the FIR.

A Magistrate can take the insight of a complaint as indicated by Section 190 of the Code of Criminal
Procedure, 1973. At the point when a Magistrate takes the insight of an (endless supply of a complaint or
else), he looks at the complainant as per Section 200 by analyzing the realities and the observers.

In the event that he finds that the complaint is with merits, the case Is esteemed dedicated for preliminary
and the judge issues either the request or the warrant under Section 204. In the event that the offence is
solely triable by the Court of Session, the Magistrate submits the case to Court of Session under Section
209.

On account of an FIR, the offence included is of cognizable nature and accordingly, the police have a
position to start the examination in the said case without earlier authorization from the Magistrate and
afterwards record a charge sheet.
Then again, when a Magistrate takes the perception of an offence based on a complaint, he arranges an
examination in the issue and can likewise guide the police to hold up an FIR in the event that he feels that
the offence is of a genuine sort. He can follow up on the protest just on the off chance that it uncovers a by
all appearances commission of an offence.

In P. Kunhumuhammed v. State of Kerala, the Hon'ble High Court of Kerala held that the report of a
police officer following an examination in opposition to Section 155(2) could be treated as complaint under
S. 2(d) and S. 190(1)(a) if at the beginning of the examination the police personnel is persuaded that the
case included the commission of a cognizable offence or if there is any uncertainty about it and examination
builds up just commission of a non-cognizable offence.

The Officer responsible for a police headquarters, may on receipt of a complaint by a source that uncovers
a non-cognizable offence submitted inside the points of confinement of its ward, enter the substance of the
case in the station journal and the witness to move toward the concerned Magistrate on whose request just
can the police explore such cases with indistinguishable forces from practised in a cognizable case, aside
from the ability to capture without warrant.

Where a case identifies with at least two offences of which one is cognizable, at that point the case will be
viewed as a cognizable offence, despite the way that different offences are non-cognizable.

Procedure of Issue of Process and Examination of Complainant when a Complaint is Filed Before a
Magistrate

Examination of the Complainant

A judge taking cognizance of an offence on criminal complaint will examine upon pledge or vow, the
complainant and witnesses present (assuming any) and the substance of such assessment will be diminished
into written format and will be verified by the complainant and witnesses and furthermore by the Magistrate
and they shall authenticate their truth by signatures.

Save that, when the complaint is made in a written document, the Magistrate need not analyse the
complainant because the complaint in itself can be considered as the statements of the complainant. In the
event that a police officer acting or implying to act in the released of his official obligations of court submits
the complaint in issue, or if the Magistrate puts forth the complaint about enquiry or trial to another
Magistrate under Section 192 for the purpose of examination of the complainant, the Magistrate need not
rethink them.

The technique of being embraced when a complaint is recorded is as follows and is provided under Section
200 of the Code:

It is occupant on the Magistrate taking cognizance of the complaint to conduct a hearing specifically
to examine the complainant and/or witnesses produced by the complainant (if any) at adequate
length to satisfy himself that there is a bona fide case and the complaint is not frivolous. A trial is
a very lengthy and complex process and therefore, it is vital that all precautions be taken to ensure
that a malign or malicious case has not been commenced by the complainant. Therefore, the
examination of the complainant is extremely momentous

·
In the wake of recording articulations and averments made by the complainant and/or his witnesses
individually under Section 200 CrPC, the Magistrate has three choices:

· He may issue a process in the nature of a summons or a warrant depending on the circumstances
of the case, under Section 204 CrPC, 1973; if at the first sight, the offence is made out and if
the alleged denounced person is dwelling inside the territory to which the jurisdiction of the
Magistrate applies OR
· He may dismiss the complaint under Section 203. If the complaint fails to fulfil all the
procedural elements under Section 190, the Magistrate may dismiss the complaint. Further, if
the complaint is one filed before the Magistrate in the form of a police report in case of a non-
cognizable offence, the Magistrate shall simply look whether the investigation has disclosed
any culprit or accused person and if there is sufficient evidence to proceed against the person
the complaint shall be accepted OR
· He may delay or postpone the procedure of issuing the summons or warrant to the accused
person if the Magistrate believes that there is need to examine the complainant and/or witnesses
further to ensure the involvement of the accused. In such a case, the Magistrate shall fix a date
for examination and if upon such examination, he is satisfied that a case is made out, the process
can be issued.

Subsequently, after the complaint is registered by the Magistrate, a date is fixed for the examination of the
complainant and the witnesses, if any, before the Magistrate. However, if the complainant fails to appear
before the Magistrate for examination, the Magistrate is empowered it dismiss the complaint. In criminal
law, a lot of things and considerations need to be considered before an order is made.

For instance, dishonour of a cheque is a non-cognizable offence under the Negotiable Instruments Act,
1881 which is between the debtor and the creditor. Therefore, if the complainant does not appear for the
examination, it is presumed that the complaint was either frivolous or no grievance exists with the
complainant.

However, the mere absence of the complainant does not give the court the right to dismiss the complaint.
The Magistrate must give the complainant an opportunity to explain the reason for his absence. In Padam
Singh Saini v. Megh Singh, the Magistrate dismissed the complaint filed under Section 138 of the
Negotiable Instruments Act, 1881 because the complainant was absent from the examination.

The High Court observed that the absence was due to an inadvertent circumstance which should have been
considered by the Magistrate. Thus, if the complainant can prove or show that his absence was due to
unavoidable circumstances, Ithe Magistrate should ideally condone such absence.

Issue of Process in Complaint

It has been explained above that the Magistrate has three choices to make after the complaint is registered,
i.e. (a) to issue process, (b) to dismiss the complaint and (c) to postpone the issue of process. This section
deals with the procedure and needs for the issue of process under CrPC in a complaint case before the
Magistrate. Once the Magistrate is satisfied that the complaint is genuine on the examination of the
complainant and witnesses (if any), the Magistrate shall issue a process to the accused person(s).

The term process is a legal expression used for any document to be served upon a person with the intention
of producing the person before the court. Processes are of two types, viz. summons and warrant.
A summons is a formal statement by the court under its seal and signature ushering the person to whom it
is served to be present before the court on the date and time stipulated in the summon to explain any facts
or circumstances known to him related to the case in the issue of which he has the personal knowledge.

On the other hand, a warrant is an instruction to the police officer of the police station to which the warrant
is served to arrest a person named in the warrant and produce him/her before the court on the specified time
and date. The police officer shall make the arrest and detain the person until the date of the hearing.

The issue of processes depends completely on the lature of the case. If the offence allegedly brings out a
summons case, the Magistrate is obliged to serve a summon to the accused whereas if the offence allegedly
makes a warrant case, the Magistrate is empowered to issue a warrant of arrest. Besides these, the issue of
the process depends upon several circumstances.

If the accused has been known to be absconding with the intention to flee from justice, the Magistrate shall
issue a warrant for his arrest and declare the accused as a 'proclaimed offender'. Moreover, if the Magistrate
believes that the person is likely to abscond or attempt to destroy any evidence or influence a witness, he
may issue a warrant of arrest.

The main object of the issuing process under CrPC is to allow the accused to explain circumstances within
his personal knowledge to the court to enable the court to take an impartial and fair judgment. For instance,
if an offence is committed for private defence or if the person has been falsely implicated in a case while
he was not even present at the scene of crime and has a very authentic alibi, he may explain all these
circumstances to the Magistrate when the summon or warrant is served and he is produced before the court.
After the issue of process, the trial commences like any criminal case.

Procedure of Dismissal of Complaint under the Code of Criminal Procedure, 1973

Procedure after filing complaint

This means that this provision cannot be explained without dealing first with the process of filing the
complaint and the procedure followed after the complaint is filed.

Section 190 of the CrPC empowers a Magistrate to take cognizance of an offence brought to his/her notice
by filing a written or oral complaint by a person. Moreover, if a police officer has investigated a case
believing it to be of a cognizable offence which turned out to be non-cognizable, the report of investigation
filed by the police officer can be treated as a complaint and the Magistrate is empowered to take cognizance
of such complaint as well under Section 190.

These are the two ways in which a complaint reaches a Magistrate. After the complaint is received, the
Magistrate registers the complaint and make a note to this effect and the complainant is asked to be present
on a specific date and time.

The next procedure is to examine the complainant to ascertain the truth of his averments and to ensure that
a valid case can be made out against the accused person. Section 200 of CrPC empowers and mandates for
the Magistrate to examine the complainant and any witnesses who have been produced by the complainant
on oath to state only the truth.
The Magistrate shall record everything that the complainant avers as his case and the same shall be recorded
in written format to be signed by both the parties. Further, the witnesses shall be recorded in the same
manner and their assertions shall also be verified by their signatures.

According to the provisions of section 190 (1) (a) of the Code the comprehension, possibly taken after
accepting a complaint of such circumstances which comprises an offence. At the end of the day, we can
say that when a composed complaint unveiling an offence is recorded under the watchful eye or guidance
of a Magistrate or a Court and when the Magistrate makes registration of such complaint as aforesaid for
recording the assertions or any averments of the complainant and the observers, witnesses or other persons
present, if any, under section 200 of the Code, the Magistrate is esteemed to have taken the cognizance of
the offence.

Reasons for Dismissal of Complaint

The first requirement for dismissal of the complaint is that the Magistrate must apply his mind while taking
any decision and making an order of dismissal. This does not mean literally he should apply his mind.

It means that the Magistrate must look into all the reasons for dismissal with no prejudice and grant all
possible opportunities to the complainant to save the complaint from being dismissed. There are several
reasons for the dismissal of a criminal complaint, inter alia, most essential of which are as follows:

1. Failure to Fulfil Requirements of Section 200:

Section 200, as already mentioned, requires that (a) there must be certain allegation of commission of an
offence, (b) there must be name of the accused person or any other information known by the complainant
about the alleged offender and (c) intention that the Magistrate shall cause to investigate the case in the
complaint that shall be submitted by the complainant.

If the complaint fails to fulfil all these elements, the Magistrate may dismiss the complaint. Now, if the
complaint is one filed before the Magistrate in the form of a police report in case of a non cognizable
offence, the Magistrate shall simply look whether the investigation has disclosed any culprit or accused
person and if there is sufficient evidence to proceed against the person the complaint shall be accepted.

2. Absence of Complainant from Examination

As aforementioned, after the complaint is registered by the Magistrate, a date is fixed for the examination
of the complainant and the witnesses, if any, before the Magistrate. However, if the complainant fails to
appear before the Magistrate for examination, the Magistrate is empowered to dismiss the complaint.

In criminal law, a lot of things and considerations need to be considered before an order is made. A
complaint is usually filed in a non-cognizable case in which the police do not have the power to investigate
without the Magistrate's order. A non-cognizable case is usually in the nature of a private conflict between
two persons and is not literally against the State.

For instance, the bouncing of a cheque is a non-cognizable offence under the Negotiable Instruments Act,
1881 which is between the debtor and the creditor. Therefore, if the complainant does not appear for the
examination, it is presumed that the complaint was either frivolous or no grievance exists with the
complainant.

However, the mere absence of the complainant does not give the court the right to dismiss the complaint.
The Magistrate must give the complainant an opportunity to explain the reason for his absence. In Padam
Singh Saini v. Megh Singh, the Magistrate dismissed the complaint filed under Section 138 of the
Negotiable Instruments Act, 1881 because the complainant was absent from the examination.

3. No Case Made Out

After the complaint has been registered and the complainant and/or witnesses have been examined, the
Magistrate shall pass an order whether a suitable case exists for investigation or not. If the Magistrate feels
or is of the opinion that no prima facie case is made out against the alleged offender, he may dismiss the
complaint.

For instance, if the basic requirements, i.e. the sine qua non of the offence is not fulfilled according to the
statements of the complainant, then the offence is not committed; such as in a case of dishonour of cheque
under Section 138 of Negotiable Instruments Act, 1881, if the demand notice was not sent by the
complainant or there unreasonable delay in sending the notice, the complaint shall be dismissed since no
legal case is made out.

4. Insufficient Evidence or Adverse Police Report

If the Magistrate considers that the sine qua non of the alleged offence has been duly proved or sufficiently
proved to enable the Magistrate to order an investigation in the case, he shall do so. Under Section 156(3),
the Magistrate can order a police officer of the police station in whose jurisdiction the offence was alleged
to have been committed to initiate an investigation and collect evidence to prove the incrimination or
innocence of the named accused.

The police are empowered to investigate the matter under Section 156 as it would if the case was of
cognizable nature. After the end of the investigation, the investigating officer submits a report to the
magistrate informing him of the offence committed, the manner in which it was committed, evidence and/or
witnesses who can testify anything related to the commission of the offence.

If the police file a report according to which the offence has not been committed by the accused person or
that there is insufficient evidence to prove the guilt of the accused beyond a reasonable doubt then the
complaint has to be dismissed and the accused arrested shall be acquitted and discharged immediately.

Procedure to be Followed for Dismissal

There is no specific procedure prescribed by the Code to be followed if a complaint is to be dismissed. The
code only requires that reasons for such dismissal must be recorded. However, equity requires that certain
procedures need to be followed before dismissal.

The reasoned decision has been held to be a principle of natural justice which connotes that a judge or any
court must give reasons for the orders passed by it. In Mehmood Ul Rehman v. Khazir Mohammad Tunda,
the apex court observed that the Magistrate shall pass a speaking order dismissing the complaint and shall
briefly mention the reasons for dismissal in the order itself.

If the reasons are not stated, the complainant is entitled to appeal the order for violation of natural justice
principle. However, if a complaint is duly dismissed, the case ends and the accused person(s) are deemed
to be acquitted of all charges.
PRE-ARREST PROCEDURE

INITIATION OF CRIMINAL PROCEEDINGS:

● Complaint Sec.190 → filed before a competent judicial magistrate by any person

pertaining to the commission of any offence.
● Based on the allegations of the commission of the offence, the case can fall under either of
the following types:
○ Cognizable Offence u/s 2(c) - which means an offence punishable where the police
officer can arrest without warrants
■ Deals with all serious offences
■ Even those with imprisonment under 3yrs such as Chapter VIII IPC,
Ss.260-290 IPC
■ Can arrest without warrant and can investigate into case without orders or
directions of the Magistrate

■ Sec.156 and 157

○ Non Cognizable Offence u/s 2(l) - where the police officer cannot arrest without
warrant
■ Non serious, offenes with imprisonment of <3yrs, Private wrongs (even
those with 5yrs min imprisonment such as Sec.493-97 IPC)
■ Cannot arrest without warrant and cannot investigate into case without
orders or directions of the Magistrate

■ Sec.155(2) r/w Sec.3(1)(a)

■ The Magistrate can order to investigate -- investigation can happen as per a
cognizable case (Sec.155(2) and 155(3))
Misc.: The reason why the offences are to be correctly classified into cognizable and non-cognizable is
essential to indicate as to whether the arrest in respect of the offence can be made with or without warrant
● After complaint has been filed, Magistrate can either
○ Ask the police to investigate
○ Or Inquire into the case
These are done to ensure that there are sufficient grounds for a proceeding as per
Sec.201
● If sufficient grounds are found then Magistrate issues summons or warrant for securing
presence of the accused for trial as per Sec.204

Assistance by persons/public:

● Sec.39 - duty of every citizen to report/inform to the authorities about the commission or
likelihood of commission of any offence/crime.
○ This is given to the Police.
● Duty on ‘every person’ who knows about the crime/offence to inform, but a person can be
exempted from the duty if he has reasonable excuse for not giving information.
○ Intentional omission to give information under Sec.39 would amount to be offence
in itself under Ss.176 and 202 IPC.
 ● Sec.40 - duty on village-officers (Collector, Sarpanch, etc) and even village-residents to
report certain matters to the police or Magistrate.
● Sec.37 - every private citizen to give reasonable assistance to the Magistrate and police
under certain circumstances if such assistance is demanded by a Magistrate or police.

PRESENCE OF ACCUSED FOR TRIAL

● Two methods - issuance of summons or by arrest-detention

○ This is left to the judicial discretion of the Judicial Officer’s decision
● Criminal cases are further classified into
○ Warrant cases Sec.2(x) -- Cases relating to an offence punishable with Death
Penalty, life imprisonment or imprisonment execeeding 2 years
■ Basically serious offences.
○ Summons cases Sec.2(w) -- Those cases which are not warrant cases
● Seriousness of crime is used to make the initial decision as to whether the accused is to be
summoned to attend the trial or whether he is to be arrested or detained for the trial.
○ In a summons case, consequence of trial is less serious than warrant case - lower
probability of the accused to abscond/disobey the summons
○ In a warrant case, consequences of trial is more serious - risk of accused not
obeying the summons and of absconding is Higher.
● Sec.204 Issue of Process
○ Magistrate who has taken cognizance and has an opinion that there are sufficient
grounds for proceedings, then for summons case shall issue summons and in
warrant cases may issue a warrant or a summon.

● Sec.87 Issue of warrant in lieu of or in addition to summons

○ Court can issue a warrant in lieu of or in addition to summons being issued provided
that it has recorded the reasons for doing the same.

Summons to the accused and its service

● Summons is an authoritative call to the accused to appear in court and answer to a charge of
an offence.
● Prepared based on Sec.61 (Form of Summons) and Form I of the Second Schedule.

● Court may permit the accused to appear by his lawyer → Sec.205 Magistrate may dispense
with personal appearance of accused.
● Should contain adequate particulars of offence charged with.
● Sec.62 to 67 deals with how summons are to be served.
● Sec.68 provides for the proof of service of summons in particular cases, such as where
summons is served outside jurisdiction of the court, or in cases serving officer is not present
at the hearing of the case. In such cases, an affidavit stating that such summons have been
served along with duplicate copy of summons being purported to be endorsed shall be
deemed to be correctly done/followed.
Warrants

● Warrant of arrest is a written order issued and signed by a Magistrate and addressed to a
police officer or some other person specifically named and commanding him to arrest the
body of the accused person named in it
● Arrest can be done with or without issuance of warrants
● Must be in writing and sealed and signed by the Magistrate/Court -- Sec.70
● Must conant the name and other particulars of of the person to be arrested along with the
offences charged for
● Bailable warrant for arrest -- warrants that would include a direction that if the person
arrested under the warrant executes a bond and gives security for his attendance in court, he
shall be released. -- Sec.71
● Warrants would be directed to the police officers -- Sec.72
○ Or other persons if the police officer is not immediately available
● Warrant issued to any person for the arrest of an escaped convict/evading accused/
proclaimed offender etc -- Sec.73
○ it is possible for the investigating agency to procure the presence of an accused who
is evading arrest
● CrPC does not provide for a general warrant, i.e one warrant for all accused.
● Warrant of arrest - Sec.70 and Form 2

Summons Case and Warrant Case (done in class but not in syllabus. Please read the relvant sections
relating to trial of warrant cases as well.)

As per Section 2(w), "summons-case" means a case relating to an offence, and not being a warrant-case
and as per Section 2 (x), "warrant-case" means a case relating to an offence punishable with death,
imprisonment for life or imprisonment for a term exceeding two years. Cr P C classifies an offence as either
cognizable or non-cognizable, and a trial procedure as summons case or warrant case. Thus, the terms
summons case and warrant case are in reference to the procedure adopted for the trial of the case. Thus, the
difference between the two can be seen from the point of view of their trial procedures as highlighted below
–
Summons Case Warrant case
Cr P C prescribes only one procedure for all Cr PC prescribes two procedures for the trial of a
summons cases, whether instituted upon a police warrant case my magistrate - one for case instituted
report or otherwise. upon a police report and one for case instituted
otherwise than on a police report.
No charge needs to be framed only the particulars of A charge needs to be framed against the accused.
the offence needs to be conveyed to the accused.

As per S. 252, if the accused pleads guilty, the As per S. 241, After the charge is framed, the
magistrate must record the plea of the accused and accused may plead guilty and the magistrate may
may, in his discretion, convict him on such plea. convict him on his discretion.

Accused my plead guilty by post without appearing Accused must appear personally.
before the magistrate.
The accused may be acquitted, if the complainant is Magistrate can discharge the accused if complainant
absent or if the complainant dies. is absent, or no charge is framed, or if the offence is
compoundable and non cognizable.

The complainant may, with the permission of the The complainant may, with the permission of the
court, withdraw the complaint against the accused. court, withdraw the remaining charges against an
accused, if he is charged with several offences and
convicted on one or more of them.

When a warrant case is tried as a summons case and When a summons case is tried as a warrant case and
if the accused is acquitted under S. 255, the acquittal if the accused is discharged under S 245, the
will only amount to discharge. discharge will amount to acquittal.

Trial of a warrant case as a summons case it is a Trial of a summons case as a warrant case is an
serious irregularity and the trial is vitiated if the irregularity which is curable under Section 465.
accused has been prejudiced.

A summons case cannot have charges that require a A warrant case may contain charges that reflect a
warrant case. summons case.

Accused gets only one opportunity. Accused may get more than one opportunity to
cross-examine the prosecution witness.

A charge under a warrant case cannot be split up into

its constituents for trial under summons case.

No such power to the magistrate in summons case. After convicting the accused, the magistrate may
take evidence regarding previous conviction not
admitted by the accused.
All cases which are not punishable by death, All cases which are punishable by death,
imprisonment for life, or for more than two years are imprisonment for life, or for more than two years are
summons cases. warrant cases.
Conversion A warrant case cannot be converted into a summons
As per Section 259, a summons case can be case.
converted into a warrant case if the case relates to an
offence that entails more than 6 months of
imprisonment as punishment and the judge feels that
in the interest of justice it the case should be tried as
a warrant case.

ARREST

INTRODUCTION -
● Arrest means the deprivation of a person of his liberty by legal authority or by apparent legal
authority.
● Chapter 5 -- conditions under which a person can be arrested
● Magistrate may issue a warrant for the arrest under S.204 r/w S.87
 ● Situations when arrest may be necessary
○ to secure attendance of accused,
○ as a preventive or precautionary measure,
○ or of a habitual offender,
○ or ex-convict,
○ person found under suspicious circumstances [Sec. 151,41(2) r/w s.110,41(1)]
○ Necessary for obtaining correct name,address of person committing non-cog off
(S.42)
○ Persons obstructing police officers from performing their duties [S.41(1)(e)]
● Decision to issue or not issue a warrant depends on the balancing of social interests with
those of the interests of the accused.
● In case of arrests without warrant, the decision to make the arrest is no doubt made by
persons other than magistrates and courts (i.e police officers, pvt citizens etc)
○ Rationale: acts as a preventive action that may be necessary to avert dangers and
outbreak of crime which the immediate arrest may ensure in fulfilling.
● Arrest without warrant → custody/detention upto 24hrs hours from time of arrest and then
has to be taken to the Judicial Magistrate.
● Refer to the general points of warrants given above.
● A warrant of arrest remains in force till it is executed, or cancelled by the court issuing it.
● Bailable warrant can be issued for bailable and non-bailable offences (only if non-bailable
offence is of a technical nature) -- Marula Sidda Sivamulu v Emperor 1911

EXECUTION OF WARRANT OF ARREST

● Executed by any other police officer whose name is endorsed upon the warrant by the officer
to whom it is endorsed or directed to -- Sec.74
● Can be executed at any place in India -- Sec.77
● Sec.78 to 81 -- execution of warrant outside the jurisdiction of court
○ Sec.78 Warrant forwarded for execution outside jurisdiction -- forward the
warrant by post or otherwise to any EM or DSP or CP within the local jurisdiction
it is to be executed in

○ Sec.79 Warrant directed to police officer for execution outside jurisdiction --

the police officer should take such warrant to the EM or to a police officer not below
the rank of station officer within the local limits of whose jurisdiction it is to be
executed in.
○ Sec.80 Procedure of arrest of person against whom warrant issued -- person
shall be taken to the Magistrate or District Superintendent or Commissioner of that
local jurisdiction (30km or beyond 30km then the nearest EM, DSP, CP)

○ Sec.81 Procedure by Magistrate before whom such person arrested is bought

-- direct his removal to the Court that had issued the original warrant along with the
bond/security if any for bailable warrant cases and/or may release person on bail
(subjected to S.71 and 78)

Duty and Right to assist in execution of a warrant of arrest

 ● Sec.37 -- every person is bound to arrest a police officer reasonably demanding his aid in
arresting or preventing the escape of any other person whom such police officer is authorised
to arrest
● Sec.38 -- empowers a private citizen to assist a person other than a PO in the execution of a
warrant directed to such a person.

ARREST WITHOUT WARRANT

● When person has been reasonably suspected to have committed a serious (cognizable)
offence
● In cases of non-cognizable offences, arrest without warrant may be done as well in order to
ascertain the name and address of the offender perpetrating the crime.

● Sec.41 -- When police may arrest without a warrant

○ When a person commits a cognizable offense in the presence of a police officer
○ When a reasonable complaint is made against a person or credible information has
been received, or a reasonable suspicion exists that such person has committed a
cognizable offense punishable with imprisonment for a term which may be less than
seven years or which may extend to seven years whether with or without fine
○ To prevent such person from committing any additional crime; or
○ For proper facilitation of the investigation of the crime; or
○ To stop such person from causing the proof of the crime to disappear or tampering
with such evidence in any manner; or
○ To restrain such person from making any inducement, threat or promise to any
person acquainted with the facts of the case so as to stop him from disclosing such
facts to the Court or to the police officer; or as unless such person is arrested, his
presence in the Court whenever required cannot be ensured;

○ Against whom credible information has been received that he has committed a
cognizable offense punishable with imprisonment for a term which may extend to
more than seven years whether with or without fine or with a death sentence, and
the police officer has reason to believe based on that information that such person
has committed the said offense.
○ The person so being arrested is a proclaimed offender by the Central or the State
Government.
○ When the person being so arrested is in possession of the stolen property and who
may reasonably be suspected of having committed an offense with reference to such
thing.
○ When the person being so arrested obstructs a police officer while in the
execution of his duty.
○ When the person being so arrested has escaped or attempted to escape from lawful
custody.
○ When the person being arrested is reasonably suspected of being a deserter from any
of the Armed Forces of the Union.
○ Who has been concerned in, or against whom a reasonable complaint has been made,
or credible information has been received, or a reasonable suspicion exists, of his
having been concerned in, any act committed at any place out of India which, if
committed in India, would have been punishable as an offense, and for which he is,
 under any law relating to extradition, or otherwise, liable to be apprehended or
detained in custody in India.
○ When the person being arrested is a released convict, commits a breach of any
rule under subsection (5) of section 356.
○ A requisition is made or received from any other police officer. The requisition must
specify the person to be arrested with the crime that was committed by him. The
requisition may be in writing or be oral.
● Sec.42 -- The police also have the power to arrest a person if he denies giving his correct
name and residential address or the police have a reason to believe that the furnished
information is wrong.
● “May” indicates that the police has the discretion in making arrest without warrant
● ‘Reasonable’ and ‘credible’ → such information must afford sufficient materials for the
exercise of an independent judgement at the time of making arrest → M Baskaran v State
1969
● Malicious and excessive exercise of powers of arrest under s.41 and 42 would result in
punishment under Sec.220 IPC
● It may be inferred that a Magistrate might issue a warrant even before taking cognizance of
the offence but in the circumstances in which a police officer can arrest without warrant
under s.41.

● In case of arrest of person at a different place → police officer can send a requisition to
another police officer in order to arrest the person.
● Sec.41A → police officer shall in all cases where he decides not to make the arrest, issue
notice to the person complained against to appear before him to make the necessary inquiries.
● Rini Johar v State of MP 2016 → State would be liable to compensate for arrest without
warrant when the procedure is not followed and is a flagrant violation/deviation from Sec.41
and 41A.
● Section 154, “under a cognizable offenses, if the police officer receives any information
relating to the commission of a cognizable offence, if given orally shall be reduced to writing
and be read over to informant, whether given in writing shall be reduced to writing and shall
be signed by the informant and substance shall be entered in a book to be kept by officer in
form prescribed by state government”.
○ provides further that, “if any person aggrieved by a refusal on the part of the officer
in charge of police station, may send the substance of such information by post to
Superintendent of Police, who is satisfied that such information discloses any
commission of cognizable offences, shall either investigate himself or direct an
investigation to be made any police officer subordinate to him”.

Procedure for making arrest

● Sec.41B Procedure for arrest and duties of officer making arrest
○ Name,designation of officer arresting should be visible clearly
○ Prepare memorandum of arrest - attested by 1 witness (family member) and the
person being arrested
○ Inform the person arrested about his right to have a relative/friend being informed
about such arrest

● Sec.41C Control Room at districts

○ Established by State Govt
 ○ Should display on the notice board kept outside the PCR at every district the names
and addresses of persons arrested and by whom they have been arrested
● Sec.41D Right of Arrested person to meet advocate of choice during interrogation

ARREST BY A PRIVATE PERSON WITHOUT WARRANT

● Sec.43 -- private person to make arrest without warrant from magistrate
○ May arrest or cause to be arrested
○ Person should be committing a non-bailable and cognizable offence, or is a
proclaimed offender
○ Commission of the crime should be in the presence of the person arresting
○ Can be re-arrested under sec.41 by PO

● Right to arrest must be exercised simultaneously with the commission of the offence -- In
re. Kolavennu Venkayya 1956.
● If the private person making the arrest under sec.43 fails to follow the after-arrest procedure
as prescribed, he can be prosecuted for the offence of wrongful confinement under
Sec.342IPC.

ARREST BY MAGISTRATE
● Sec.44
● Wider powers for arrest:
○ Any offence irrespective of nature and seriousness is committed in the presence of
the EM or JM - either himself or with help of others.
○ Even if no such offence is committed in the presence of such Magistrate, but if the
Magistrate is competent to issue a warrant for the arrest of any person, and the person
is present before him, he can arrest such a person.
● If detained beyond 24hrs and not produced before another magistrate for obtaining an
order of remand to custody under Sec.167(1) then such detention would be illegal.
● Based on the principle under Sec.479 the Magistrate arresting a person under Sec.44(1)
should not try the case himself.

ARREST HOW MADE

● Sec.46 → Arrest how made
● Actually contacting or touching the body or by his submission to the custody of the person
making the arrest.
● For women -- her submission to custody on an oral intimation of arrest shall be presumed
and only a woman officer can touch or physically restrain her
○ Shall not be arrested after sunset till before sunrise
■ In exceptional cases -- woman PO shall make a report to the JMFC for
permission to do so.
● Submission to custody can be made express words or may be indicated by conduct
● In case there is forcible resistance to or attempt to evade arrest, the person attempting to
make arrest may use all necessary means for the same.
 ○ But not been given right to cause death of any person (even if the accused has been
sentenced to DP) → Karam Singh v Hardayal Singh
○ The person arrested shall not be subjected to more restrain than is necessary to
prevent his escape.
● Resistance or obstruction to lawful arrest → Sec. 244 and 245 IPC

ADDITIONAL POWERS FOR EFFECTING ARREST

● Search of Place
○ Sec.47 Search of Place
○ Occupier of a house is under legal duty to afford to the police all facilities to search
the house for the purpose of making arrest
■ If denied then force can be used
○ May conduct it with or without warrant
○ If there is a female present at such as a house then PO has to duly inform her
○ There is reasonable restrictions imposed on the police to restrain from searching
places occupied by pardanashin women.
● Pursuit of offenders
○ Sec 48
■ A PO may for the purpose of arresting without warrant pursue such person
into any place in India
○ Usually PO power to arrest is ordinarily limited to the police district, but s.48
supplements this. Also sec.77 warrant of arrest may be executed at any place in India

● Deputing Subordinate to arrest

○ If senior PO in his presence requires that a subordinate PO (or any other person) to
arrest a person who may be lawfully arrested without a warrant such subordinate
officer is under a duty to arrest -- Sec.55

○ Order in writing specifying the details

● Power on escape, to pursue and retake
○ If a person in lawful custody espaces or is rescued, the person from whose custody
he escaped or was rescued may immediately pursue and arrest him in any place in
India → Sec.60

○ Re-arrest has same powers under Sec.46 and 49

● Power to obtain assistance from any person -- Sec.37

POST ARREST PROCEDURES

● Search of arrested person
○ Sec.51
○ Empowers a PO to make a search of the arrested person under certain circumstances
○ Such search may prove useful for proper investigation
○ If any incriminating items founds (or even stolen) -- same can be seized u/s 102
○ Police Act -- Search should be made in the presence of witnesses
○ Power under sec.51 is available only if the arrested person is not released on bail
 ○ In case the arrested person is a woman, the search can be made only by a female
with strict regard to decency
● Seizure of offensive weapons
○ Sec.52
○ Exercised by any person making arrest
● Medical examination of accused after arrest
○ To facilitate effective investigation -- medical examination by medical practitioner
IF from the nature of the alleged offence or the circumstances under which it was
alleged to have been committed, there is a reasonable ground for believing that an
examination of the person will afford evidence

○ Sec.53 -- Examination of accused by medical practitioner at the request of

the PO
○ State of Bombay v Kathi Kalu Oghad → medical examination is not violative of
self incrimination under Art.20(3) as Art.20(3) is confined only to testimony written
or oral
■ Jamshed v State of UP → Sec.53 is not violative of Art.2093) and the
person cannot be said to have been compelled “to be a witness” against himself
if her is merely required to undergo a medical examination in accordance to s.53
○ Permits the use of reasonable force as is reasonably necessary for the purpose of
medical examination of the arrested person
○ Medical examination is to be done at the instance of a PO not below the rank of SI.
○ Sec 53A -- empowers the Investigating Agency to compel medical practitioners to
help it get the person accused of rape examined promptly

○ Sec 54 -- Examination of arrested person by medical officer

■ Cl.2 deals with contents of the report
■ Cl.3 -- copy of report to be sent to the arrested person
● Sec.54A -- Identification of person arrested
● Sec.58 -- Reports of arrest to be sent to DM
● Sec.59 -- Person arrested not to be discharged except on bail or bond
○ Once a person is arrested by the police, he can be enlarged only after taking a bond
or bail for his appearance before a Magistrate. The police cannot discharge him on
their own accord without the order of a Magistrate.
○ (This order is under Sec.167)

RIGHTS OF ARRESTED PERSON

● Right to Know Grounds of Arrest
○ Sec 50(1) → Person arrested to be informed of grounds of arrest and the right
to bail

○ Notify the person the substance of the written order given specifying the offence or
the causes for which the arrest is to be made
○ Warrant substance has to be notified, if not then arrest would be unlawful
 ○ Art.22(1) -- No person who is arrested shall be detained in custody without being
informed as soon as may be of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by a legal practitioner of his choice
○ Grounds of arrest should be communicated to the arrested person in the language
understood by him
○ The right to be informed of the grounds of arrest is recognised by Sections 50, 55
and 75 in cases of arrest with or without warrant
■ If arrest is made by a Magistrate without warrant under Sec.44 the case is
not covered under Ss. 50, 55 and 75 not by any other provision of the code
requiring the Magistrate to communicate the grounds of arrest to the arrested
person
○ Joginder Kumar and DK Basu cases -- Sec.50A making it obligatory on the part of
the PO not only to inform the friend or relative of the arrested person about his arrest,
but to also make an entry in the register maintained by the police and the Magistrate
should ensure the compliance

○ Information regarding the right to be released on bail → Sec.50(2)

● Right to be taken before a Magistrate without delay
○ Arrested person to be taken before a magistrate without unnecessary delay
○ The arrested person should not be confined in any place other than a police station
before he is taken to the Magistrate
○ Sec.56 -- Person arrested to be taken before Magistrate or officer in charge of
Police Station
■ These are in case of arrest without warrant
○ Sec. 76 -- Person arrested to be brought before Court without delay
■ Arrest with warrant
● Right not to be detained for more than 24 hrs without judicial scrutiny
○ Sec 57 -- Person arrested not to be detained more than 24hrs
○ Presented before the JM
○ If PO fails to produce an arrested person before a Magistrate within 24hrs then he
shall be guilty for wrongful detention
○ FR under Art.22(2)
○ These are in case of arrest without warrant
○ Time can be extended by Magistrate under Sec.167 for the purpose of facilitating
Police investigation
● Right to Consult a legal practitioner
○ Art.22(1) -- no person who is arrested shall be denied the right to consult a legal
practitioner of his choice.

○ Non Compliance with this requirement and failure to inform the accused of this right
would vitiate the trial → Rajoo v State of MP
○ Sec.303 provides that any person against who, proceedings are instituted under the
Code may of right be defended by a pleader of his choice.
● Rights at Trial
- Right to a Fair Trial
The Constitution under Article 14 guarantees the right to equality before the law. The Code of Criminal
Procedure also provides that for a trial to be fair, it must be an open court trial. This provision is designed
to ensure that convictions are not obtained in secret. In some exceptional cases, the trial may be held in
camera.
- Right to a Speedy Trial by the Constitution of India
Though this right has not been specifically mentioned in the Constitution, however, the SC in the
Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 has made it mandatory that the investigation in
the trial must be conducted "as expeditiously as possible."
In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused is arrested,
the investigation for the trial has to be completed within the period of six months or stopped on receiving
an order from the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that
there is cause to extend the investigation.

Right of an arrested indigent person to free legal aid and to be informed about it
○ Khatri (2) v State of Bihar → State is under a constitutional mandate to provide free legal aid to
an indigent accused person and that this constitutional obligation to provide legal aid does not arise only
when the trial commences but also when the accused is for the first time produced before the Magistrate
as also when he is remanded from time to time

● Right to be examined by a medical practitioner

○ Sec.54
○ Sec 53 v Sec 54 → While sec.53 enables a police officer to compel an arrested
person to undergo a medical examination with a view to facilitate investigation,
Sec.54 gives the accused the right to have himself medically examined to enable him
to defend and protect himself properly.
○ Magistrate should inform about such a right to be medically examined

● Right to Silence
○ The 'right to silence' has been derived from common law principles. It means that normally
courts or tribunals should not conclude that the person is guilty of any conduct merely
because he has not responded to questions which were asked by the police or by the court.
The breaking of silence by the accused can be before a magistrate but should be voluntary
and without any duress or inducement.
○ As per Article 20(3) of Constitution of India guarantees every person has been given a right
against self-incrimination, it states that any person who has been accused of any offense,
shall not be compelled to be a witness against himself. The same was again reiterated by a
decision of Supreme Court in the case of Nandini Sathpathy v. P.L.Dani (1978) 2 SCC
424; wherein it was held that no one can forcibly extract statements from the accused and
that the accused has the right to keep silent during the course of interrogation
(investigation). The Supreme Court again in the year 2010, held that narco-analysis, brain
mapping, and lie detector test are in violation of Article 20(3) of the Constitution of India.

Consequences of Non-Compliance with provisions relating to arrest

Cr.P.C provides stringent procedural requirements for giving effect to an arrest. However, no provision is
devoted to the consequences that will follow in case of non-adherence of these procedures; no law speaks
about the liability of the police officers or the State in case of failure to follow the procedures or whether
such arrest is legal or illegal. In such a situation, the pronouncements by the courts are the guiding light for
this issue. The consequences of non adherence of procedural requirements of arrest in a different legal
context are as follows [8]:

1. Effect on Arrest: If a police officer blatantly violates all the procedure under the Code of Criminal
Procedure while arresting a person, it shall become an illegal arrest. On the other hand, if certain provisions
are not complied with while substantial provisions are complied with, it is an irregular arrest. In either
situation, the arrest is not valid and the Magistrate must take not of the nature of illegality of arrest when
the arrestee is first brought before him/her.

2. Effect on Trial: Trial is a stage where the investigation is complete and the police officers, having found
sufficient evidence against the accused, have charged him with certain offences and the court determines
the guilt or the innocence of the accused. A trial will not be void simply because provisions relating to arrest
have not been fully complied with. However, though the illegality or irregularity of arrest will not vitiate
the trial of the accused, it will still be quite material if the charge against such person is of resistance to or
escape from the lawful custody of the police. Since the custody is unlawful, the authenticity of the charge
is shaken.

3. Effect on Jurisdiction of Court: It is possible that while in the unlawful exercise of his powers, a public
servant may end up arresting a person in one part of the State while the charge sheet is filed in some other
part of the State where the police station is located. The fact that the officer who effected the arrest went
beyond his powers in making arrest does not affect the jurisdiction of the court to try the accused. In Rishbud
v. State of Delhi[11], the court observed that non-adherence of procedure of arrest is "merely a procedural
irregularity which does not go deep to the root of the matter such as to oust the jurisdiction of the court".

4. Liability of State: From a practical point of view, the relationship between the State and the police
department is that of an employer and an employee or in a non conventional legal language, a master-
servant relation. According to the laws of vicarious liability, "the master shall be liable for the wrongful
acts of the servant done during the course of his employment". Now, the arrest is an official duty of a police
officer done during his course of employment in the official uniform. Therefore, the State should be held
liable in case of illegal arrest by a police officer.
In Nagendra Rao v. State of Andhra Pradesh, the apex court ruled out the defence of sovereign immunity
from government employees (laid down in Kasturi Lal) and held that "the State can be held liable for
wrongful acts of the police officers".

5. Prosecution of the Offender: If a public servant having authority to arrest, knowingly exercises that
authority in contravention of law and effects an illegal arrest, he can be prosecuted under Section 220 of
the Indian Penal Code, 1860 for the same offence punishable with an incarceration period of 7 years.
Besides this special provision, any person, including a police officer, can be prosecuted for "wrongful
confinement" under Section 342 of the Penal Code.

6. Civil Action against the Offender: If an arrest is illegal and made against the provisions of the law, it
amounts to the tort of 'false imprisonment'. A tort is a civil wrong usually uncodified and developed by
courts of the common law countries. According to the tort of false imprisonment, any person who restrains
the free movement of any other person and confined such person without his/her knowledge or consent
shall be liable for the tort of false imprisonment. Any defendant in such cases, if found guilty, must pay
pecuniary damages to the plaintiff.
7. Right to Private Defence: Among several general exceptions to offences, the Indian Penal Code provides
the right to defend oneself and one's property as a general exception to the commission of an offence under
IPC. According to this right, any person facing an imminent threat to his life, person or property or any
other person's life or property, can use proportional force to stop such threat or avoid it.

According to Section 99 of the Code, the right also extends against any act of a public servant which is not
done in the colours of his office or in good faith. Therefore, If a person is subjected to illegal arrest or
detention, such person has a right to defend himself against any force used in such arrest and also escape
from the public servant if the arrest is illegal[14].

Remedies in Case of Non-adherence of Procedure of Arrest

The most popular common law maxim states 'ubi jus ibi remedium', i.e. for every wrong, there is a remedy.
The law is of no use if there is a remedy for violation of right. A right without a remedy is like a car without
fuel; only utility is to snob. For non-adherence of procedure of arrest, a victim can claim two forms of relief:

Relief of Release From Confinement: Where it is found that a person is illegally arrested, the High Courts
or the Supreme Court can issue a "writ in the nature of habeas corpus" ordering the release of such person.
In Sebastian M. Hongray v. Union of India & Ors.[15], the Supreme Court issued a writ of habeas corpus
directing the respondents to release two named persons and if not, show cause as to why they cannot be
produced before the court.

Similarly, in Smt. Harbans Kaur v. Union of India[16], the petitioner is a mother of four sons, all of whom
were arrested by police officers without providing any reasons and informing her of the place of their
detention. In the custody, one son Gurbaksh was beaten to death while others were illegally detained without
presence before the magistrate. On the order of the court, the detenu was presented before the Judicial
Magistrate and Judicial custody was ordered. The SC observed that since one detenu has died and others
have been lawfully detained in judicial custody habeas corpus cannot be issued. Nevertheless, the court
ordered an enquiry by the DGP into the death and illegal detention of all the victims.

Relief of Compensation: The relief of compensation for illegal arrest cannot begin without the landmark
judgment of Nilabati Behera v. State Of Orissa. The petitioner is the mother of the deceased who was
arrested by the police officers and brutally beaten and later, his body was found near the railway track. The
police claimed it to be an attempt to escape. However, the court was satisfied that the act was "done by the
police officers" and thus, "a compensation of Rs. 1, 50,000 was awarded to the petitioner". This was the
first case where the court awarded pecuniary compensation for illegal arrest.

In Prabavathy v. The State of Tamil Nadu, [18] the petitioner filed the writ petition seeking for a direction
to the respondents "to pay compensation of Rs.5 Lakhs to the petitioner for the illegal detention and death
of her husband E.Nanjappan in the judicial custody". Court held that the petitioners were supposed to pay
8 lakhs as compensation.
- Other Reliefs: The main relief which is usually sought is the release of the detenu and compensation.
However, in certain cases, different reliefs have been sought and the courts have even accepted such relief
In P Rathinam v State of Gujarat & Ors.[19], the petitioner requested the court to formulate a committee to
investigate the custodial rape of the petitioner after her illegal arrest. Further, in Sri Ramamurthy v. the
State of Karnataka, the apex court directed the State government to amend their Police and Prison Manuals
that give carte blanche powers to the public servant.

CASE LAWS:
● Nilabati Behra v State of Orissa 1993
○ Right to compensation for the victims of unlawful arrest and detention
● Joginder Kumar v State of UP 1994
○ Need for having more transparency in the accused-police relations has been
emphasised by the SC.

○ Rules:
■ Arrested person in custody is entitled if he so request to have one person
(friend, relate, anyone else) told that he has been arrested and where he is
being detained
■ The PO shall inform the arrested person when he is brought to the police
station his rights
■ An entry shall be required to be made in the diary as to who was infomed of
the arrest
● DK BASU v STATE OF WB 1997
○ Despite various to attempts to issue proper guidelines to eradicate the possibility of
committing torture by police officials, there were frequent instances of custodial
deaths and police atrocities. The apex court, in this case, issued some guidelines
which are to be followed under all cases of arrest or detentions.
○ The person to be arrested must be informed of the grounds of arrest as per
Section 50 of CrPC and Article 22 of the Indian Constitution. It is a fundamental
right of an individual to be informed of the grounds of arrest. It is the duty of the officer
in charge to inform the person whether the offence is Bailable or Non- Bailable. Bailable
offences are the offence in which it is the right of a person to be granted bail whereas in
the non-bailable offence it is at the discretion of the court.

○ Under section 41 police have the power to arrest a person without a warrant
where an immediate arrest is needed and there is no time to approach the
magistrate and obtain a warrant. For example where a serious crime has been
perpetrated by a dangerous person and there are chances of him being escaped unless
immediately arrested. Later due to misuse of powers conferred by police officers
accorded to them, this section got amended and put restrictions upon the power of
officers such as police officer must act reasonably while deciding whether the arrest
is necessary or not. The notice should be made if credible information is received
(section 41 a).
○ The arrested person has a right to meet an advocate of his choice during
 interrogation under section 41 D and section 303 of CrPC.
○ The person so arrested has a right to inform his family member, relative or friend
of his arrest under section 50 of CrPC.
○ The arrested person has a right not to be detained for more than 24 hours,
without being presented before a magistrate to prevent unlawful and illegal
arrests. This right is also the fundamental right of an individual under Article 22 of
the Constitution.
○ The arrested person has a right to remain silent during police enquiry provided
by Article 20(3) of the Indian Constitution so that police cannot extract any self-
incriminating information against him.

● DELHI JUDICIAL SERVICE ASSOCIATION v STATE OF GUJRAT 1991

○ Gujarat Police had cruelly trodden and handcuffed an incumbent Magistrate, for
creating consistent complaints against the ill-conduct of the police officials. SC laid
down guidelines for the police while arresting Judicial Officers
○ A judicial officer should be arrested for any offence under intimation to a district
judge or the High court.
○ In case of necessity for immediate arrest only a technical or formal arrest may be
effected
○ The fact of such arrest should be immediately communication to the District and
Sessions Judge of the district concerned and the Chief Justice of the HC
○ The judicial officer so arrested shall not be taken to a police station without the prior
order or directions of the District and Sessions Judge of the concerned district if
available
○ Immediate facilities shall be provided to the judicial officer for communication
with his family members/legal advisors and other associated juridical officers
○ No statement of a judicial officer who is under arrest be reocrded nor any
panchamana be drawn nor any test be conducted except in presence of legal advisor
or another judicial officer of equal or Higher rank
○ No hand-cuffing.
● State of Maharashtra v. Christian Community Welfare Council of India 2004
○ Guidelines were laid down for the arrest of female persons.
○ It was said that the arresting authority should make all possible efforts to assure the
presence of a woman constable. But if such presence cannot be assured and delay to
the investigation cannot be afforded, the arresting officer can himself affect the
arrest for lawful reasons at any time of the day or night, even in the absence of a
woman constable. Reasons for doing so must be recorded.
○ The police officer making the arrest needs only to actually physically touch or
confine the body of the person so arrested, unless there is voluntary submission to
custody by the person being arrested by word or action. In simple words, if the person
being arrested voluntarily submits to custody, then there is no need to physically touch
or confine the person.
○ A male officer is not to touch a female arrestee.
○ If the person forcibly resists the endeavour to arrest him, or attempts to evade the
arrest, then then arresting police officer or any other person may use all means
necessary to make the arrest.
○ When it is intended to arrest a woman after sunset and before sunrise, the woman
police officer must mandatorily obtain the previous permission in writing of the Judicial
Magistrate of the first class within whose jurisdiction the crime is committed or arrest is
 to be made. This provision has been inserted by the Code of Criminal (Amendment) Act,
2005.

Miscellaneous:
● Sec.45 Protection of members of the Armed Forces from Arrest
○ In lines of Sec.197 that prohibits taking cognizance of any offence alleged to have
been committed by such person while acting or purporting to act in the discharge of
his duty.

● Sec.82 Proclamation for person absconding

○ Upon serving of summons or warrants, the court has the reason to believe that he
would abscond or not obey the directions, or fails to appear → court may publish a
written proclamation requiring such person to appear before ti and may attach his
property.
○ If fails to be present after the proclamation then the property would be disposed
off.
○ Discussed in Ss.82 to 86
○ Proclamation should be made in newspapers/ affixed at the house of such person/ at
the courthouse as well.
● Sec.83 Attachment of property of person absconding
○ Court issuing the proclamation can attach the property at any time and its not
necessary to wait till the expiry of the time prescribed in the proclamation for
appearance
○ Usually done after elapse of 30 days from proclamation
○ Is required to record reasons while issuing the order of attachment
○ Sec.84 → Claims and objections to attachment
● Sec.88 Power to take bond for appearance
○ When the person is present in the court, the court instead of proceeding with the
issuing of a summons or warrant in his case may require him to execute a bond for
his appearance in court.

● Sec.89 Arrest for breach of bond of appearance

○ Fails to fulfill the bond provided for under Sec.88, then the court may issue a
warrant for arrest.

SEARCH, SEIZURE AND PRODUCTION OF EVIDENCE

Note: Points have been taken from ipleader.

INTRODUCTION
● Chapter VII, containing Sections 91-100
○ The provisions of this chapter concerns with summons and warrants, their issue, the
manner in which they are served, and executed.
● The word ‘search’ refers to the operation of government machinery that involves checking
through or carefully inspecting a location, area, person, object, etc. to detect something
hidden or to reveal the pieces of evidence of a crime.
 ○ A search being a coercive method and involving invasion of the sanctity and
privacy of a citizen’s home, the power to issue a search warrant should be exercised with
all care and circumspection.
● “Seizure” is a vigorous action that unexpectedly takes over, captures, removes, or
overwhelms an entity or an individual.
○ Seizure under Section 102 means actually taking possession in pursuance of a
legal process.
○ Seizure is made at a particular moment when a person or authority takes into his
possession some property which was  earlier not in his possession.
○ The police officer seizing the property shall forthwith report the seizure to the
Magistrate having jurisdiction; and if such an officer is subordinate to the SHO, he
shall also report forthwith the seizure to the SHO.
● The main processes for compelling production of things and documents are as follows:
○ summons issued by a court;
■ A summon is a command from a Court to an individual, to appear at a given
time and place before him.
■ A warrant is a legal document that is issued by a judge or magistrate
authorizing a police officer to make an arrest, search, seize property or take
action relating to the administration of the justice system.
○ written order issued by a police officer in charge of a police station; and
○ search and seizure with or without a warrant.
■ A search warrant is a written authority given to a police officer or other
person by a competent Magistrate or court for the search of any place either
generally or for specified things or documents (or for persons wrongfully
detained).

PROCEDURE RELATING TO SEARCH AND SEIZURE

● Section 91 → states that the Court may issue a summon or the officer in charge may give a
written order stating that the person has to produce the document or anything which is
believed to have importance in order to carry out investigation, inquiry or proceedings.
● Section 92 → states that If the law enforcement agencies including the District
Magistrate and the High Court are of the opinion that a document, parcel or anything which is in
the custody of postal or telegraph authority is essential for the investigation, trial or the
proceedings, then the Postal or telegraph authority has to adhere to the directions given by the
court and deliver the document as per the instructions.
● Section 93 → prescribes when a search warrant can be issued.
○ First of all, if the Court believes that the person to whom the summon or order has
been addressed, will not bring the document or the thing which is essential to the
proceedings, a warrant can be issued against that person.
○ It can also be issued if the Court does not know the person who may be having the
document.
○ The Court may specify the particular place or part till which the inspection will
extend and the person in charge of the inspection will follow the order of the Court
as given and not extend the limit of inspection.

○ Only the District Magistrate or Chief Judicial Magistrate can grant the search
of a document which is in the custody of postal or telegraph authority.
● Section 94 →
 ○ deals with the search carried out at places that are suspected to contain properties
that might be stolen or might also hold the forged documents.
○ After the inquiry or the information, if a District Magistrate, Sub-divisional
Magistrate or a Magistrate of first-class is of an opinion that a place would have
been used for deposit or sale of stolen property or if it would have been used for the
production of objectionable articles as mentioned and prescribed in this section, he
may authorize the Police Officer (above the rank of a constable) by warrant to enter
such place with assistance if required.

○ articles/things which are considered as objectionable as per Section 94 –

■ counterfeit coins, currency note or stamps,
■ forged documents
■ false seals
■ Pieces of metals prohibited under the Metal Tokens Act,1889 (1 of 1889),
or brought in India as prohibited pursuant to Section 11 of Customs Act,
1962 (52 of 1962).
■ Objects considered as obscene under Section 292 of IPC (45 of 1860)
■ Instruments that may be used for the production of the above objectionable
articles.
● Section 95 gives the power to the Court to declare some publications forfeited.

○ The Court can issue search warrants for those publications and If the State
Government finds that any article, newspaper, document or book may contain some
matter which is punishable under the following sections that are 124A, 153A, 153B,
292, 293 or 295A of IPC, it can declare every copy of such material to be forfeited
to the Government.
○ The Magistrate can authorize any Police Officer to seize those documents.
○ As per the warrant, the Police may enter and search the suspected document on any
premises.
○ The point to note here is, the Police Officer appointed for the search, can not be
below the rank of Sub-Inspector.
● In the case of Anand Chintamani Dighe v. State of Maharashtra, the State Government
seized a notice for the forfeiture of the book in all forms entitled Mee Nathuram Godse Bolto
ahe (I am Nathuram Godse speaking) including Gujarati translation for reasons that the
publication of the said book will disturb public tranquillity, encourage disharmony or
feelings of enmity, hatred or ill-will among different groups or communities.
● Section 97 is regarding the search of a person whose confinement amounts to an offence.
○ If any District, Sub-Divisional, or a first-class Magistrate has a reason to believe the
same, he may issue a search warrant.
○ The person to whom the search warrant is addressed has to search the confined
person and if he finds the confined person, he has to take him immediately before
the Magistrate for further proceedings.
● Section 98 covers the aspects involved for the restoration of an abducted woman
including a female child under the age of 18.
● Section 99 covers the directions for search warrants.
○ The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 are applied to all the search
warrants issued.
Persons in charge of a closed place to allow search
● If any place has to be searched or inspected is closed, the person residing or in charge of that
place has to grant entry to the Officer as mentioned in Section 100 and has to provide him
with all the facilities that are appropriate or essential for searching. If the entry or ingress
can not be obtained, then the Police Officer can proceed in a manner as specified in Section
47(2).
● If any person is suspected of hiding something that the officer is searching for, then the
person can be searched in order to find that concealed article.
● If a woman is hiding or concealing, then the woman can be searched by another woman;
● Roop Chand vs the State of Haryana, the Court reiterated that it is a well-settled law concept
that the Investigating Agency should assist independent witnesses when contraband articles
are seized while they are available, and their inability to do so in such a situation casts a
cloud of doubt on the prosecution case.

● The occupant can be present in every instance of the search.

● The Police Officer has to give a copy of seized items to the Occupant;
● Section 101 deals with the disposal of things that are found in search beyond jurisdiction. If
a search warrant is issued by a court beyond its jurisdiction, the things together with the list
of the seized items have to be taken immediately to the court.
● Section 103, a magistrate can direct a search to be made in his presence.

CONSEQUENCES OF IRREGULARITIES OR ILLEGALITIES

IN A SEARCH
● Where a Magistrate, not empowered by law to issue a search warrant for search of a place
suspected to contain stolen property, etc. under Section 94, erroneously and in good faith
issues such a warrant, the search proceedings shall not be set aside merely on the ground that
the Magistrate was not empowered to issue such a search warrant.
● If any Magistrate not so specified, issues such a search warrant the search proceedings
shall be void.
● A search without a warrant conducted by a police officer who is not authorised to do so, is
illegal and devoid of legal authority.
● courts have taken the view that non-compliance with the search-procedure will not vitiate
the  trial or make the search-evidence inadmissible though that may affect the weight of
evidence in support of the search and recovery.
● The Supreme Court in State of Maharashtra v. Natwarlal Damodardas Soni has
expressed the view that even if the search is illegal, that will not affect the validity of the seizure
and further investigation, or the validity of the trial.
● If the search-procedure followed by the police officer is not strictly legal, the occupant of
the place of search can obstruct with impunity the officer attempting such a search. 6.
● Non-compliance with the search-procedure would make the entry into the place of search as
one without lawful authority.
- As in Radha Kishan v. the State of U.P.it was held that the effect of any procedural
irregularity under the code has to be tested on the touchstone of it prejudicing the accused
person in his defence. It means that if the irregularity in search procedure does not allow
the accused to defend himself completely, such irregularity may vitiate the trial.
- According to Section 465 of Cr.P.C, "no finding, sentence or order passed by a court of
competent jurisdiction shall be reversed or altered by the same court or by a higher court
 only because of an error, omission or irregularity in the issue of warrant unless it has
occasioned a failure of justice against the accused". The test to determine the failure of
justice has been provided in Section 465 (2) where the Code states that if an objection could
and should have been raised by the accused at an earlier stage of the proceeding and he
failed to do so, this fact shall be regarded while considering the failure of justice.

POWERS OF POLICE OFFICER

● The power of Police Officers to seize certain property is given under Section 102 in
● Any Police Officer can seize any property that may be known or suspected to have been
stolen or found in circumstances that raise suspicion of any crime being committed.
● This Police Officer has to report the seizure to the senior officer if he is subordinate to that
senior officer who is in charge of the police station.
● Every police officer shall immediately report the seizure to the Magistrate with jurisdiction.
● Where the confiscated property is such that it can not be conveniently transported to the
Court, he may give custody to any person on his execution of a bond undertaking to

deliver the property before the Court as and when appropriate and to give effect to the Court’s
further orders as to the disposition of the property.

● Police may perform a search without a warrant in your house or office if they
suspect you have hidden items that are deemed illegal like narcotics, etc.

Landmark Judgments
● In the case of V. S. Kuttan Pillai v. Ramakrishnan, the procedural validity of search
warrants was upheld, in which it was held that a search for the premises occupied by the
accused did not in any way force him to provide evidence against himself and was thus not
in violation of Article 20(3) of the Indian Constitution.
● In the case of Ramesh vs Laxmi Bai, It was held that a son in his father’s custody should
not be held or considered as unlawful detention, and, accordingly, no search warrant could be
issued for the same.
● In the case of Matajog Dobey vs. H.C. Bhari, the court stated that in cases where
statutory provisions have not been complied with, the credibility of evidence in support of the
search may be diminished and the evidence provided may be disbelieved unless the defendant
gives sufficient reasons for any non-compliance with the provisions.
● In the case of the State of Maharashtra vs. Tapas D. Neogy, it was upheld that ‘bank
account’ is to be ascertained as property under section 102 of the code and the police officer is
empowered to seize the operation of such bank account in the event that these properties are
specifically related to the commission of the offence for which the investigation is conducted.
● In the case of the State of MP vs. Paltan Mallah, it was held that the evidence obtained
under illegal search is not completely ruled out unless it has caused the accused serious prejudice.
The Courts have always been given the discretion to decide whether or not to accept such
evidence.
● In the case of Modan Singh vs. State of Rajasthan, it was held that if the evidence of the
prosecuting officer retrieving the missing items is compelling, it is not appropriate to deny the
proof of recovery on the basis that seizure witnesses do not accept the version of the prosecution.
 INVESTIGATION BY POLICE

INVESTIGATION
According to §2 (h) of the Code, investigation means a process conducted for the collection of evidence in
a particular case by the police or any other authorized person. The essential elements of investigation under
this provision are:

· It must be in the form of a process and not merely one act such as recording the complaint.
· The intention of the investigation should be to collect evidence.
· Investigation can be conducted by police or a private person but not by Magistrate.

Steps or Purpose in the Investigation Process

There are two essential steps or purpose in the investigation process, viz. “discovery and arrest of the
suspected offender and search of place and seizure of articles relevant to the case

· Discovery and Arrest

The first essential step in the investigation is the discovery and arrest of the suspected offenders. When the
information of the commission of an offence is received by the police or Magistrate, the information may
disclose the identity of the suspect or it may be silent on such identity.

For instance, if a victim reports an offence, s/he may know the offender or at least the physique of the
offender which can be conveyed to the investigating agency. Contrary to this, if a person comes to home
and finds that his house has been broken into. He would not be able to disclose the information about the
suspect.The arrest must be made according to the procedure established under §§41 to 46 of the Code.

· Search and Seizure

Once the accused or a suspect is arrested, the next most important purpose of an investigation is to collect
evidence which can be used in the courts during the trial to be used in favour of or against the accused. The
Indian Evidence Act, 1872 divides evidence into two kinds, viz. oral evidence and documentary evidence.

The oral evidence is deduced from the people who are acquainted with the facts of the case. To determine
oral evidence, the investigating agency is required to proceed to the scene of offence and record the
statement of the people which when given in court becomes evidence. However, for documentary evidence,
the investigating agency needs to search the document and seize it with lawful authority to produce before
court.

Meaning of FIR
Under Section 154, this information must be reduced to writing and the police officer must make a note of
the receipt of this information in a diary maintained by him every day. This written information is called
the “First Information Report” (FIR).

State of Maharashtra v. Ahmed Shaikh Babajan, the apex court observed that “FIR is not a condition
precedent to the setting of criminal law into motion”. It means that the police can take action even before
the FIR is recorded.
FIR can be given by any person who has been a victim of the offence or one of the victims of the offence.
Further, it can be given by any person who witnessed the commission of an offence by eyes or ears or who
has knowledge or suspicion of commission of any offence. FIR can be given by the accused himself. An
FIR given by the accused can be either in nature of a confessional statement and non-confessional statement.

Purpose of FIR/ WHAT IS THE EVIDENTIARY VALUE OF FIR

The primary objective of recording an FIR is to allow the police officer to investigate. Further, FIR also
forms a part of the final charge sheet prepared by the police under Section 173 and is produced before the
court during the trial. FIR is not a substantive piece of evidence and cannot be relied on by the prosecuting
agency for conviction of the accused. FIR is not recorded on oath and is a mere statement made to the police
without any swearing. Further, its veracity is not tested by cross-examination.

In Dharma Rama Bhagare v. The State of Maharashtra, the court observed that the purposes of the FIR
are as follows:

FIR cannot be admissible as evidence before a court of law in a trial.

It can be used to discredit the maker of the FIR by contradicting him.

It can be used for corroborating any statement made by the maker of the FIR in a court during the trial.

In certain circumstances, the FIR itself becomes a substantive piece of evidence. Under Section 32 of the
Evidence Act, if the person making the FIR is dead or cannot be found or if his attendance cannot be
procured without unnecessary delay in the trial, the FIR becomes a substantial piece of evidence.

Procedure after Recording FIR

After the FIR recorded, the police are empowered to investigate the case without any written order or
warrant by the Magistrate under Section 156 of the Code. Section 157 lays down the procedure that has to
be followed by the police after the information is received.

The Magistrate is empowered to take the cognizance of such offence and order to any subordinate officer
to investigate the spot, facts and circumstances of the case and take necessary measures for the discovery
and the arrest of the accused. Section 157 requires a police officer to ‘forthwith a report’ which signifies
that the report has to be sent without any unreasonable delay. “

After the report under Section 157(1) is sent to the Magistrate, the police officer shall proceed to the scene
of offence in person or shall depute a subordinate officer to proceed to the spot of the incident. The sub-
ordinate, however, should not be below the specific rank as required by the State Government. The officer
shall endeavour to scrutinise the facts and circumstances of the facts and collect evidence from the crime
spot. The police are empowered to take necessary steps for discovering and arresting the suspects on the
basis of the FIR
Procedure for not recording FIR
Section 157 not only bestows a duty upon the police officers to record the FIR and proceed with the
investigation, but it also gives discretion to them to decide whether the investigation is necessary or not

Firstly, when the information received is about an offence which is not serious in nature and is more in the
nature of a private wrong, the police officer may not proceed with the investigation. Secondly, when the
police officer believes that there are not sufficient grounds for entering on an investigation, he shall not
investigate the case.

The provision makes it obligatory for the police to record the reasons for not investigating the case even on
the receipt of the information by the police in the report to be sent to the Magistrate.

· Evidentiary Value of Statements made to Police

What is Police Statement?

Section 161 of the Code titled “Examination of Witness by Police” empowers the police officers to record
any statement of any person who is acquainted with the facts of the case. The examination means oral
examination and refers to such statements and these statements are specifically recorded by those officers
who are investigating the case.

What is the evidentiary value of such statements?

Precisely, any statement made to a police officer is never admissible in court as evidence. Making such
statements admissible will defeat the purpose of criminal law, i.e. justice. Hence, such statements are
inadmissible in court as evidence.

Section 162 of the Code provides that any statement recorded by the police under Section 161 shall not be
signed by the maker of the statement and it shall not be admissible as evidence before the court during any
trial.

However, the proviso to section 162 (1) states that if a witness is brought from the side of Prosecution (i.e.
victim or State) before the court to testify, s/he can be contradicted using such statements provided s/he is
shown the statement. Moreover, if there is a statement of a defence witness recorded by police in its day to
day diary, it can also be used to contradict the defence witness under Section 145 and 161 of the Indian
Evidence Act, 1872.

Under Section 25 of the Indian Evidence Act, 1872, any confessional statement made to an Investigating
Officer is forbidden in proof, and subsequently, when the accused person(s) confesses during the Police
investigation, the Police as soon as possible get it recorded by a Magistrate under Section 164, Criminal
Procedure Code, and it would then be able to be utilized to the degree to which it might be permissible
under the Indian Evidence Act as evidence in a court of law and put forth against the accused.

· Evidentiary Value of Statements made to Magistrates

Section 164 of the Code empowers the Judicial Magistrate or Metropolitan Magistrate to record the
statements of any witness or accused whether confessional or non-confessional. First of all, it is a common
misunderstanding that Section 164 provides for recording of confession of the accused. Nevertheless, the
provision accredits the Magistrate to record both confessional and non-confessional statements of the
accused and also the Statements of the witnesses if it is required to be made before the Magistrate.

A statement recorded by the Judicial or Metropolitan Magistrate according to the procedure laid down in
Section 164 is admissible in the court as evidence and can also form the sole basis for conviction. In
Parmananda v. State of Assam the court held that endeavour of the court should be to apply its mind to
the question whether the accused was free from threat, duress or inducement at the time of making the
confession. If the statement was made voluntarily, there is no bar against its admission.

The classic case to define confession is Pakala Narayan Swami v. Emperor. In this case “A confession
must either admit in terms the offence or at any rate substantially all the facts which constitute the offence.
An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not in itself a
confession, for example, an admission that the accused is the owner of and was in recent possession of the
knife or revolver which caused death with no explanation of any other man’s possession

Before recording any such confession, the Magistrate will disclose to the individual making it that he will
voluntarily make a confession and that in the event that he does so it might be utilized in proof against him.

The Magistrate shall lay out a memorandum mentioning that the confession was made voluntarily without
any inducement or threat and that all requirements of the law were duly conformed to. The memorandum
in Section 164(3) must be annexed at the foot of the record of the confession. It isn’t fundamental that the
Magistrate accepting or recording a confession or proclamation ought to be a Magistrate having jurisdiction
for the situation. Any Magistrate can record the confession for the sake of justice and later transfer it to the
competent Magistrate for further proceedings.

Inculpatory and Exculpatory Confession

The statement of the accused where the accused person directly admits his guilt is known as an inculpatory
confession. Exculpatory confession, on the contrary, is that confession which absolves the accused from
his liability. For instance, where the accused accepts being part of the offence but claims that it was
committed completely by the co-accused, it is exculpatory.

· Procedure to follow on completion of investigation

Investigation Resulting in No Evidence

The privilege to reasonable trial incorporates ‘Reasonable Investigation’. Fair trial and reasonable
investigation are pre-requisites to get equity which the society demands according to law, and one without
the other cannot provide reasonable equity.
Any situation that relates to any commission of the offence is subjected to reasonable investigation and
subsequently, trial and for that purpose, if required, the case can be endowed to special investigating
organizations such as the Crime Investigation Department or the Central Bureau of Investigation.

1. Submission of Closure Report

The report under Sec 169 CrPC is alluded to as a ‘closure report’. The Magistrate, be that as it may, can
guide the police to make a further examination. The extent of the ability to coordinate further examination
when the police report expresses that there is no proof to continue further, and truly there is no proof for
the situation by any stretch of the imagination.

2. Cognizance by the Court

It demonstrates the moment that a court or a Magistrate takes legal notice of an offence with the end goal
of starting procedures in regard of such offences said to have been submitted by somebody.

It was additionally clarified in this way:

· Taking awareness doesn’t include any proper activity of any sort;

· It happens when the Magistrate applies his brain to the associated commission with an offence;
· It is preceding the initiation of criminal procedures;
· It is an imperative essential for holding a substantial trial;
· Cognizance is taken of an offence and not a wrongdoer;

INVESTIGATIONS & INQUIRIES INTO CAUSE OF UNNATURAL DEATHS, SUICIDES, OF

DEATH IN POLICE CUSTODY ETC
Whenever there is a death of a person in abnormal circumstances, the situation calls for police intervention.
Section 174 of the Code comprises all kinds of death which cannot be explained or deemed to be unnatural.
For the purpose of this provision, natural death means when a person ages to his death and dies due to age
or if a person suffers from a medical condition which is sufficient or likely to cause the death of a person
and the person dies due to such suffering. Thus, any death caused by a reason other than disease or old age
is unnatural. In general, the provision comprises four kinds of deaths:

· Suicide,
· Murder,
· Assault by a beast,
· Demise due to factory accidents (failure of a machine, etc.),

The Executive Magistrate upon the implication by the Station House Officer or some other Police Officer
specially engaged by the State Government will set up an inquest report which will contain the moment
insights about the reason for the death of an individual.

Inquest report, as propounded under Section 174, is set up by District Magistrate, Additional District
Magistrate, Sub-divisional Magistrate, or Mandal Executive Magistrate particularly enabled for this sake
by the State Government when there are circumstances of deaths in the places within their jurisdiction and
if such deaths are unexpected and unexplained.

For setting up the report, the judge will examine the reason for death. In the report, the justice must portray
the obvious reasons for death where he will depict the slightest subtleties that he discovers on the dead
body. A portion of the subtleties that the officer must depict are:
 · Nature of encompassing where the dead body is found.
· Any injuries, cracks, wounds, and different imprints that might be found on the body. The
officer must express the way wherein any twisted or damage or some other imprint happened
to be on the body, regardless of whether the imprint is by birth, or generally, that caused the
demise of the individual.
· The imprints whenever brought about by any weapon or an instrument

Responsibilities of the Executive Magistrate

Section 174 sets out the obligations that a judge must do upon intimation by the police officer in charge of
the instances of unnatural death. The officer will undoubtedly inform the closest Magistrate who is enabled
to hold investigations under the CrPC or any other relevant law when he gets data with respect to the
unnatural demise of an individual. After the Magistrate receives such information, he is bound to perform
the following duties:

· The principal obligation of a Magistrate is to decide the reason for unnatural passing away of
the individual concerned. The judge will look at the body and upon examination, analyze and
explain the circumstances in which the person died and any cause of death identified by
examination of the dead body.
· Since Section 174 is constrained in its extension, along these lines it is confined to the
suspicious conditions that caused the unnatural death of an individual and the officer has no
degree of control or authority under this provision to apprehend the individual who has so
caused the demise.
· In the event that no injustice is found in the demise of the individual, the dead body must be
given over to the lawful heirs of the expired person.
· In situations where there is suspicion or ambiguity regarding the death of the deceased person,
at that point, the dead body must be sent to the Government Medical Officer for post-mortem
analysis after death.
· The judge need not look at all the witnesses or observers present at the scene of offence while
performing the examination to find a reason for the unnatural death. On account of Shakila
Khader v. Nausher Gama, the apex court held that to set up the inquest report, there need
not be an assessment of the considerable number of observers as the reason for the examination
is just to ascertain the reason for the death

The Magistrate must conduct the inquest in the presence of two independent residents or inhabitants of
the area in the vicinity of which the offence had taken place. These people are called the panchas and
because of which the report prepared by the Magistrate and signed by these panchas are sometimes called
panchnama. In case no panchas are available or willing to assist the Magistrate, the police officer or any
other member of other locality can be requested as well.

· On the accomplishment of the inquest report, it is the duty of the Magistrate to inform the
investigating officer or the police official who informed him of the incident about the report
and get the report marked and signed by him. Further, as aforementioned, the report shall also
be verified and signed by different people too who were a part of the examination such as the
panchas who testified as to the accuracy of the inquest.
· The report must be then sent to the
sent to the District Magistrate or the Sub-divisional Magistrate.
SUICIDE
Suicide can be characterized as purposeful murdering or causing one’s very own death. Suicide is not
admissible under Indian Law and thus, Section 309 of Indian Penal Code sets out the sanction if any
individual endeavours to submit suicide. Presently with the enactment of the Mental Healthcare Act, 2017,
attempt to commit suicide is never again wrongdoing in India.

COGNIZANCE OF OFFENCE AND COMMENCEMENT OF JUDICIAL PROCEEDINGS

● After the stage of investigation is completed and the final report is forwarded by the police
to a competent Magistrate, the second important stage of giving fair trial to the accused
person begins.
● As a precursor of this second stage the Code envisages some preliminary steps.
○ 1) to take cognizance of the offence;
○ 2) to ascertain whether any prima facie case exists against the accused person; and
in case it does so exist, then
■ a) to issue process against the accused person in order to secure his presence
at the time of his trial;
■ b) to supply to the accused person the copies of police statements;
○ 3) to consolidate different proceedings pertaining to the same case; and
○ 4) if the case is exclusively triable by a Sessions Court, to commit the case to that
court.

COGNIZANCE OF OFFENCE

Meaning

● Taking cognizance of an offence is the first and foremost step towards trial.
● Cognizance literally means knowledge or notice, and taking cognizance of offence means
taking notice, or becoming aware of the alleged commission of an offence.
● occurs as soon as a Magistrate as such applies his mind to the suspected commission of an
offence for the purpose of proceeding to take subsequent steps (under S. 200, or S. 202, or
S. 204) towards enquiry and  121 trial.
○ It includes intention of initiating a judicial proceeding against an offender in
respect of an offence or taking steps to see whether there is a basis for initiating judicial
proceeding.

By whom

● Any Magistrate of the first class may take cognizance of any offence. [S. 190(1)]
● Any Magistrate of the second class, if specially so empowered by the Chief Judicial
Magistrate (CJM), may take cognizance of such offences as are within his competence to
inquire into or try. [S. 190(2)]
 ● Except as otherwise expressly provided by the Code or by any other law, a Sessions Court
is not to take cognizance of any offence as a court of original jurisdiction unless the case has
been committed to it by a Magistrate. [See, Ss. 190, 193]

Cognizance when taken.

● upon receiving a complaint of facts which constitute such offence;

● upon a police report of such facts;
● upon information received from any person other than a police officer, or upon his own
knowledge, that such offence has been committed. [S. 190(1)]
○ The police report referred to above in 3(b) has been defined by Section 2(r) as
meaning “a report by a police officer to a Magistrate under Section 173(2)”.
● In Dharam Pal v. State of Haryana, a five-member Bench of the Supreme Court ruled that
the persons who were not included as accused in the police report could be summoned by
the Magistrate who can inquire into the case, or commit the case to the Sessions Court if the
offences are triable by the Sessions Court.
● The Magistrate’s power to take cognizance embraces situations where a person after
having been convicted on a police case initiated by another brings up a complaint on the same
incident against the other,19 and where the complainants bring up protest petitions after their
complaints have been dropped by the police.

Transfer of case.

● Under Section 190(1)(c), the Magistrate may take cognizance of an offence upon his own
knowledge or information.
● But in such a case, Section 191 requires that the  accused must be informed before the taking
of any evidence that he is entitled to have the case inquired into or tried by another
Magistrate; and if the accused objects to the proceedings being conducted before the
Magistrate taking cognizance of the offence, the case will have to be transferred to such other
Magistrate as may be specified by the CJM. [See, S. 191]
● Section 192 has empowered the CJM or a duly authorised Magistrate of the first class to
transfer a case to another competent Magistrate for administrative convenience.
● The transfer under Section 192 can be made only after taking cognizance of the offence.

Time limitations.

● A Magistrate can take cognizance of an offence only within the time-limits prescribed by
law for this purpose. [See, Ss. 467–473]

Restraints on taking cognizance.

● Any person may set the criminal law in motion by filing a complaint, even though he is not
personally affected. However, Sections 195–199 impose limitations on the wide powers of
a Magistrate to take cognizance of an offence under Section 190.
 LIMITATIONS ON THE POWER TO TAKE COGNIZANCE OF AN OFFENCE
● Sections 195–199 are exceptions to the general rule contained in Section 190 regarding
taking cognizance of an offence.

Prosecution for contempt of lawful authority of public servants .

● No court shall take cognizance

○ (a) of any offence punishable under Sections 172–188, Penal Code, 1860 (IPC); or
○ b) of any abetment of, or attempt to commit, such offence; or
○ (c) of any criminal conspiracy to commit such offence. Except on the complaint in
writing of the public servant concerned or of some other public servant to whom he
is administratively subordinate. [S. 195(1)(a)]
● Sections 172–188 IPC referred to in Section 195(1)(a) above relate to offences of
contempt of lawful authority of public servants
● the object of this provision is to save the accused person from vexatious or baseless
prosecutions prompted by vindictive feelings

Prosecution for offences against public justice and for offences relating to documents given in
evidence
● No court shall take cognizance —
○ a) of any offence punishable under any of the following sections of IPC, namely,
Sections 193–196, 199, 200, 205–211, and 228, when such offence is alleged to have
been committed in, or in relation to, any proceeding in any court; or
○ (b) of any offence described in Section 463, or punishable under Section 471,
Section 475 or Section 476 IPC when such offence is alleged to have been committed in
respect of a document produced or given in evidence in a proceeding in any court; or
○ (c) of any criminal conspiracy to commit or attempt to commit, or the abetment
of, any offence specified in sub-clause (a) or sub-clause (b); except on the complaint in
writing of that court, or of some other court to which that court is subordinate. [S.
195(1)(b)]

● However, where appeals lie to more than one court, the appellate court of inferior jurisdiction
shall be the court to which such court shall be deemed to be subordinate; and where appeals
lie to a civil and also to a revenue court, such court shall be deemed to be subordinate to the
civil or revenue court according to the nature of  the case or proceeding in connection with
which the offence is alleged to have been committed. [S. 195(4)]
● The purpose of Section 195(1)(b) is to bar private prosecutions where the course of
justice is sought to be perverted, leaving it to the court itself to uphold its dignity and prestige.

Prosecution for offences against the State

● No court shall take cognizance of

○ (a) any offence punishable under Chapter VI or under Sections 153-A, 153-B, 295-
A or Section 505 IPC; or
○ (b) a criminal conspiracy to commit such offence; or
 ○ (c) any such abetment, as is described in Section 108-A IPC; except with the
previous sanction of the Central Government or the State Government. [S. 196(1)]
● The chapter and the sections referred to in sub-clause (a) above relate to offences against the
State (like waging war against the Indian government, sedition, etc.), promoting enmity
between different groups of people, imputations or assertions prejudicial to national
integration, deliberate acts outraging the religious feelings of any class, statements
conducive to public mischief, etc.

Prosecution for the offence of criminal conspiracy

● No court shall take cognizance of the offence of criminal conspiracy punishable under
Section 120-B IPC, other than a criminal conspiracy to commit an offence punishable with
death, imprisonment for life or rigorous imprisonment for a term of two years or upwards,
unless the State Government or the District Magistrate has consented in writing to the
initiation of the proceedings. [S. 196(2)]

Prosecution of judges and public servants

● According to Section 197(1), no court shall take cognizance of any offence alleged to have
been committed by a person who is or was a judge or Magistrate or a public servant, except
with the previous sanction of the appropriate State or Central Government.
● In order to attract this restrictive rule, the provision requires that
○ (a) the judge, Magistrate or the public servant is or was one not removable from his
office save by or with the sanction of the appropriate government;
○ (b) the alleged offence must have been committed by him while acting or purporting
to act in the discharge of his official duty;

○ (c) the previous sanction must have been given by the Central Government if, at the
time of the commission of the alleged offence the accused person is or was employed
in connection with the affairs of the Union of India; and similarly, if the accused
person is or was employed in connection with the affairs of a State, such previous
sanction would have to be accorded by the State Government.
● In order to attract Section 197 it is necessary that the accused person must have
committed the offence while acting or purporting to act in the discharge of his official duty.

Prosecution of members of armed forces.

● No court shall take cognizance of any offence alleged to have been committed by any
member of the armed forces of the Union while acting or purporting to act in the discharge
of his official duty, except with the previous sanction of the Central Government. [S. 197(2)]

Prosecution for offences against marriage .

● No court shall take cognizance of any offence punishable under Chapter XX of the IPC
except upon a complaint by some person aggrieved by the offence. [S. 198(1)] The above
 rule also applies in respect of the abetment of or attempt to commit any of the offences
mentioned therein. [S. 198(7)]
● Chapter XX of the IPC referred to above relates to six offences, namely, deceitful
cohabitation by man, bigamy, bigamy with concealment of former marriage, fraudulently going
through marriage ceremony without lawful marriage, adultery, enticing, etc., of a married
woman.

Prosecution of husband for rape

● No court shall take cognizance of an offence under Section 376 IPC (rape), where such
offence consists of sexual intercourse by a man with his own wife, the wife being under 15
years of age, if more than one year has elapsed from the date of the commission of the
offence. [S. 198(6)]
● No court shall take cognizance of an offence under Section 376-B (rape by husband of
the victim woman,  135 when they are living separately), except upon a complaint by wife against
husband and unless the court satisfied, prima facie of the facts constituting the offence. [S. 198-
B]56

Prosecution for defamation

● No court shall take cognizance of an offence punishable under Chapter XXI of the IPC
except upon a complaint made by some person aggrieved by the offence. [S. 199(1)]

Section 199 has been held to be constitutionally valid in Subramanian Swamy v. Union of India.

SCRUTINY OF THE COMPLAINT

Pre-cognizance stage.
● A complaint can be oral, or it can be in writing.
● A Magistrate, on receiving the complaint, may or may not take cognizance of the offence
complained of.
● He may look into the complaint (apply his mind) and send it to the police for investigation
under Section 156(3).
○ a) if the complaint is in writing, return it for presentation to the proper court with an
endorsement to that effect; or
○ (b) if the complaint is not in writing, direct the complainant to the proper court.

Examination of the complainant

● If the Magistrate applies his mind to the offence complained of with a view to take
subsequent steps, i.e. if the Magistrate takes cognizance on receiving the complaint, the first
step he is required to take is to examine the complainant on oath under Section 200.
● Section 200 provides that a Magistrate taking cognizance of an offence on a complaint
 shall examine upon oath the complainant and the witnesses present, if any, and that the substance
of such examination shall be reduced to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate.
● Section 200 further provides, as a kind of an exception to the above rule, that when the
complaint is in writing, the Magistrate need not examine the complainant and witnesses
○ (a) if a public servant acting or purporting to act in the discharge of his official duties,
or a court has made the complaint. The object of this exception is to obviate the
inconvenience which might be caused to a judge or public servant making a written
complaint under Section 195;
○ (b) if the Magistrate makes over the case for enquiry or trial to another Magistrate
under Section 192.

Enquiry or investigation for further scrutiny of the complaint

● Any Magistrate, on receipt of a complaint of an offence which he is authorised to take

cognizance of or which has been made over to him under Section 192, may, if he thinks fit,
postpone the issue of process against the accused, and either inquire into the case himself or
direct an investigation to be made by a police officer or by such other person

as he thinks fit for the purpose of deciding whether or not there is sufficient ground for
proceeding.
● It has been further provided that if such an investigation is to be made by a person other
than a police officer, that person shall have for the purposes of the investigation all the powers
conferred by the Code on an officer in charge of a police station except the power to arrest
without warrant. [S. 202(3)]
● The object of Section 202 is to enable the Magistrate to form an opinion as to whether the
process should be issued or not, and to remove from his mind hesitation that he may have felt
upon the mere perusal of the complaint and the consideration of the complainant’s evidence on
oath.
● It has been clarified by the Supreme Court in Vijay Dhanuka v. Najima Mamtaj that the
expression “shall” in Section 202(1) prima facie makes the inquiry or investigation, as the case
may be, by the Magistrate mandatory.
○ The court also noted that the amendment to Section 202(1) effected in 2005
signified that the legislature thought it essential to spell out to avoid false complaints
that were being filed against persons residing at far off places
● If the Magistrate is not satisfied with the result of the investigation, he may subsequently
make an enquiry himself or direct a fresh investigation.
● If the Magistrate decides to inquire into the case himself, he may, if he thinks fit, take
evidence of witnesses on oath. However, if the offence complained of appears to be one
exclusively triable by the Sessions Court, the Magistrate is required to call upon the
complainant to produce all his witnesses and to examine them on oath. [S. 202(2)]

Dismissal of complaint.

● If, after considering the statements on oath (if any) of the complainant and of the witnesses
and the result of the enquiry or investigation (if any) under Section 202, the Magistrate is of
 opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and
in every such case he shall briefly record his reasons for so doing. [S. 203]
● The dismissal of the complaint should not be ordered merely because there is no
sufficient ground for conviction of the accused person, it can be so ordered only when there is
no sufficient ground for proceeding.

ISSUE OF PROCESS
● If the Magistrate taking cognizance of an offence considers that there is sufficient ground
for proceeding, he shall issue process against the accused person in the following manner:
○ if the case appears to be a summons case, he shall issue his summons for the
attendance of the accused; or

○ if the case appears to be a warrant case, he may issue a warrant, or if he thinks fit, a
summons for causing the accused to be brought or to appear at a certain time before
such Magistrate or (if he has no jurisdiction himself) some other Magistrate having
jurisdiction. [S. 204(1)]
● In a case instituted upon a complaint made in writing, every summons or warrant issued
under Section 204(1) above, shall be accompanied by a copy of such complaint. [S. 204(3)]
● Section 204 of this act provides the Magistrate power to issue a process if it is found that
there are sufficient grounds for carrying out the proceeding.
● The Magistrate can issue a summons if it’s a summons case.
● A warrant is issued in case of a warrant case. The Magistrate can also issue summons to the
accused in order to make him appear before the Magistrate concerned within a certain date.
● No process shall be issued by the Magistrate if there are any arrears in the payment of
“process-fee” until the fee is paid within a reasonable time.
● No summons or warrants can be issued against the accused until a list of the prosecution
witness has been provided. This section will not affect the provisions provided in Section 87
of the act.
○ Section 87 enables the Magistrate to issue a warrant of arrest whenever it is
necessary under this section.
● No summons or warrant shall be issued against the accused under Section 204(1) above,
unless and until a list of the prosecution witnesses has been filed. [S. 204(2)]
● The question as to whether a Magistrate after issuing process could recall, it was settled in
Adalat Prasad v. Rooplal Jindal that he cannot recall the process.
● The Supreme Court in Subramanium Sethuraman v. State of Maharashtra observed that
the only course available to an aggrieved person to challenge the issuance of process under
Section 204 is by way of a petition under Section 482.
○ Section 205 empowers the Magistrate to dispense with the personal attendance of
the accused person under certain circumstances.
○ According to that section, whenever a Magistrate issues a summons, he may, if he
sees reason so to do, dispense with the personal attendance of the accused person
and permit him to appear by his pleader. [S. 205(1)]
Power to dispense with the personal attendance of the accused

● Section 205 provides the Magistrate powers to dispense the personal attendance of the
accused in certain situations.
● The Magistrate can dispense the personal attendance of the accused and permit him to appear
by his pleader if there are proper reasons.
● The Magistrate can also direct the personal attendance of the accused in any stage of the
investigation if it is necessary.

● The exemption from personal appearance cannot be claimed as a right but it is completely
under the discretion of the court after applying relevant judicial principles.
● The Magistrate considers various factors to dispense attendance like:
○ Social status.
○ Customs and practice.
○ The distance at which the accused resides.
○ The necessity of personal attendance with regards to the offence and the stages of
the trail.

SPECIAL SUMMONS IN CASES OF PETTY OFFENCES

● Section 206 has been enacted to avoid unnecessary inconvenience to persons accused of
petty offences and also to reduce to some extent congestion in Magistrates’ courts. The
section provides abridged procedure in the disposal of petty cases in which the accused
person may be inclined to plead guilty.
● When a Magistrate takes cognizance of petty offences the case can be summarily
dismissed according to Section 260, but sometimes the Magistrate will send the summons for
the person to appear in person or by pleader when it is needed. The reason for such a decision
has to be recorded.

SUPPLY TO THE ACCUSED COPIES AND PROCEDURE AFTERWARDS

● In any case instituted on a police report, the Magistrate is required by Section 207 to furnish
to the accused, without delay and free of cost, a copy of each of the following:
○ (a) the police report;
○ (b) the first information report (FIR);
○ (c) the statements recorded under Section 161(3) of all persons whom the
prosecution proposes to examine as its witnesses;
○ (d) the confessions and statements, if any, recorded under Section 164;
○ (e) any other document or relevant extract thereof forwarded to the Magistrate with
the police report under Section 173(5).
● Where, in a case instituted otherwise than on a police report, it appears to the Magistrate
issuing process under Section 204 that the offence is triable exclusively by the Sessions
Court, the Magistrate is required by Section 208 to furnish to the accused, without delay and
free of cost, a copy of each of the following:
○ (a) the statements recorded under Section 200 or Section 202 of all persons
examined by the Magistrate;
○ (b) statements and confessions, if any, recorded under Section 161 or Section 164;
 ○ (c) any documents produced before the Magistrate on which the prosecution
proposes to rely.

● However, if any such document is voluminous, the Magistrate, instead of furnishing the
accused with a copy thereof, shall direct that he will only be allowed to inspect it either
personally or through pleader in court.
● After the stage of investigation is completed and the final report is forwarded by the
police to a competent Magistrate, the second important stage of giving fair trial to the accused
person begins.
● In the case of Viniyoga International New Delhi v. State, it was said that the accused is
entitled to get copies of statements that are recorded under Section 161 and of the documents
sought to be relied on by the prosecution. It was also said that it is mandatory to provide copies
of challan to the accused. This section does not deal with how to handle the situation when some
of the witnesses are not examined, but only provides furnishing of statements of the persons
examined.

COMMITMENT OF CASE TO SESSIONS COURT

● Certain offences are exclusively triable by the Sessions Court according to Section 26 read
with the First Schedule.
● Such court cannot, however, directly take cognizance of these offences. It can deal with such
a case when the same is committed to it by the Magistrate taking cognizance of such an
offence.
● Therefore, for the purpose of committing such a case to the Sessions Court, Section 209
prescribes the necessary procedure.
○ According to that section, when the accused appears or is brought before the
Magistrate and it appears to the Magistrate that the offence is triable exclusively by
the Sessions Court, he shall commit, after complying with the provisions of Section
207 or Section 208 (relating to supply of copies), the case to the Sessions Court, and
subject to the provisions relating to bail, remand the accused to custody until such
commitment has been made;
○ subject to the provisions relating to bail, remand the accused to custody during,
and until the conclusion of, the trial;
○ send to that court the record of the case and the documents and articles, if any, which
are to be produced in evidence;
○ notify the Public Prosecutor of the commitment of the case to the Sessions Court.
● Under the above provision [S. 209], the Magistrate is only to examine the police report and
other documents referred to in the section and find out whether the facts stated in the report
make out an offence triable exclusively by the Sessions Court.
● Once that conclusion is reached, he is to do no more and commit the case to the Sessions
Court.
● In reaching the above conclusion, the Magistrate is not to weigh the evidence and the
probabilities of the case. He is not required to hear the accused. In other words, he is not to
hold an enquiry.

● It was, however, clarified that while acting under Section 209, the Magistrate is entitled to
sift and weigh the materials on record, but only for seeing whether there is sufficient
evidence for commitment, and not whether there is sufficient evidence for conviction.
Accused’s right to participate in revisional proceedings arising from committing Magistrate
● The right of the person accused of crime by a complainant to participate in the revisional
proceedings when the issue is subjected to revision has been recognised by the Supreme
Court in Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel.
● The court’s observations are self-explanatory of its reasoning and order. The court
observed thus:
○ We hold, as it must be, that in a revision petition preferred by the complainant
before the High Court or the Sessions Judge challenging an order of the
Magistrate dismissing the complaint under Section 203 of the Code at the stage
under Section 200 or after following the process contemplated under Section 202
of the Code, the accused or a person who is suspected to have committed the crime
is entitled to hearing by the Revisional Court.
● In other words, where the complaint has been dismissed by the Magistrate under Section
203 of the Code, upon challenge to the legality of the said order being laid by the complainant
in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned
as accused in the complaint have a right to be heard in such revision petition. This is a plain
requirement of Section 401(2) of the Code.

CONSOLIDATION OF CASES
● Section 210 deals with the procedures to be followed when there is a consolidation of cases
instituted on a police report and on a complaint.
● The Magistrate can stay the proceedings of any inquiry or trial and call for a report on the
matter from the police officer conducting the investigation if it is done in the same subject
of inquiry.
● If the police report does not relate to any accused in the case or if the Magistrate does not
take cognizance of any offence on the police report, he shall proceed with the inquiry or trial,
which was stayed by him, according to other provisions in the code.
● If a report is made by the investigating police officer according to Section 173 and based
on such report cognizance of any offence is taken by the Magistrate against any person who is
accused, then the Magistrate shall inquire into or try together both the complaint case and the
case arising out of the police report as if both the cases were instituted on a police report.

BAIL

INTRODUCTION:
● Aim of bail is to restore liberty to the arrested person without jeopardising the objectives of
the arrest.
● The release on bail is crucial to the accused as the consequences of pre-trial detention are
grave.
● If denied → though he is ‘presumed’ to be innocent till proven guilty, he would be subjected
to psychological and physical deprivation.
 ● Has two rationales:
○ Shielding the society from the hazards of being exposed to the misadventures of the
accused
○ On the other hand, to protect the fundamental cannon of criminal jurisprudence →
presumption of innocence
● Existence of bailable and non-bailable offence
● Has been defined in the Law Lexicon as → security for the appearance of the accused
person on which he is released pending trial or investigation. → Govind Prasad v. State of
West Bengal.
● Black’s Law: to procure the release of a person from legal custody by undertaking that he
shall appear at the time and place designated and submit himself to the jurisdiction and
judgement of the court.

● Vaman Narain Ghiya v. State of Rajasthan,

○ "Bail" continues to be understood as a right for assertion of freedom against the State
imposing restraints”
● Deemed to be under the custody of the court → Thaniel Victor v State of Madras
● Right of police to arrest does not exist thereafter → Vinod Kumar v State of UP
● Bail covers both releases on one’s own bond with or without sureties.
● Order for the release on bail is not extinguished or defeated by the discharge of surety or
lapse of time → Raghubir Singh v State Bihar
● Can be applied even after rejections, multiple times, not barred by res judicata.
○ Subsequent bail applications after the first application has been rejected should be
placed before the same judge who has passed orders earlier. → prevents abuse of
the process of the court.
● Need not always be that the co-accused should all get the bail at the same time.
● Bail relies on release subject to monetary assurance either one’s own assurance (also called
personal bond / recognizance) or through third party sureties → Moti Ram Case

BAIL IN BAILABLE OFFENCES

● Section 436 provides for the release on bail of a person accused of a bailable offense.
● Section 436 of Cr.PC is mandatory in nature and the court or the police has no discretion in
the matter.
● Any accused person arrested for a bailable offence willing to provide bail must be released.
● The only discretion available with the police is to release the accused either on a personal
bond or with sureties.
● In cases where the accused is unable to provide bail, the police officer must produce the
accused person before the Magistrate within 24 hours of arrest as specified under s. 57 of
Cr.P.C.
● Subsequently, when the person accused of an offense is produced before a Magistrate and
is willing to furnish bail, then the Magistrate must release the accused person and the only
discretion available is to release either on personal bond or a bond with sureties.
● The Magistrate cannot authorize detention of a person who is willing to furnish bail with
or without sureties even for the purposes of aiding the investigation.

● In such offences there is no question of any discretion in granting bail.

 ● Bail can be claimed as of right and there is a statutory duty imposed upon the Police Officer
as well as the Court to release a person on bail if he is prepared to give bail.

● Section 436A
○ provide that where an under trial prisoner other than the offence for which death has
been prescribed as one of the punishments, has been under detention for a period
extending to one half of the maximum period of imprisonment provided for the
alleged offence, he should be released on his personal bond, with or without sureties.
○ It is also provided that in no case the under trial be detained beyond the maximum
period of imprisonment for which he can be convicted for the alleged offence.
● If person failed to comply with the conditions of the bail-bond as regards the time and place
of attendance, the Court may refuse to release him on bail, when on a subsequent occasion
in the same case he appears before the Court or is brought in custody.
● Any such refusal shall be without prejudice to the powers of the Court to call upon any
person bound by such bond to pay the penalty thereof under section 446.
● SUMMARY OF S.436
○ Clause 1: If no reasonable grounds + There os no commission of non bailable
offence → Accused shall be released on bail and bail is a matter of right
○ Clause 2: Where a person has failed to comply with the conditions of bail bond as
regards the time and place of attendance → court may refuse to release on bail
■ When on the same occasion in the same case, accused appears before the
court → person bound by such bond to pay the penalty thereof → Sec. 446

Cases:
● In Rasiklal v. Kishore s/o Khanchand Wadhwani
○ the Supreme Court held that the right to bail for bailable offences is an absolute and
in-defeasible right and no discretion can be exercised as the words of s. 436 Cr.P.C
are imperative and the person accused of an offence is bound to be released as soon
as the bail is furnished.
○ It further observed that there is no need for the complainant or the public
prosecutor to be heard in cases where a person is charged with a bailable offence.
○ Moreover, the court has no discretion to impose any conditions except to demand
security.
○ Thus any condition to surrender passport, directing the person accused of an offence
to appear before police or the police commissioner, or even directing such accused
person not to take part in public demonstration or make any public speech cannot be
imposed.
● The Hon'ble Supreme Court in Vaman Narain Ghiya v. State Of Rajasthan,

○ observed The Court has no jurisdiction when granting bail under section 436 cr.p.c,
even to impose any condition except demanding of security.

● Amar Nath Singh v The State of Jharkhand

○ where a person has failed to comply with the conditions of the bail-bond as regards
the time and place of attendance, the Court may by virtue of section 436
(2) refuse to release him on bail, when on a subsequent occasion in the same case he
appears before the Court.
BAIL IN NON-BAILABLE OFFENCES
● The provisions of section 437 empower two authorities to consider the question of bail,
namely (1) a court and (2) an officer-in-charge of the police station who has arrested or
detained without warrant a person accused or suspected of the commission of a non-bailable
offence.
● Although this section deals with the power or discretion of a court as well as a police
officer in charge of police station to grant bail in non- bailable offences it has also laid down
certain restrictions on the power of a police officer to grant bail and certain rights of an accused
person to obtain bail when he is being tried by a Magistrate. Section 437, Criminal Procedure
Code, deals with the powers of the trial court and of the Magistrate to whom the offender is
produced by the police or the accused surrenders or appears, to grant or refuse bail to person
accused of,or suspected of the commission of any non-bailable offence.
● The power to release on bail a person accused of a non-bailable offence is conferred upon
only one class of police officers, namely an officer-in-charge of the Police Station under section
437 sub Section (I).
● Since the power to grant bail is permissive and not obligatory, it has to be exercised with
great caution because of the risk and stakes involved.
● Before exercising his power, a station officer ought to satisfy himself that the release on bail
would not prejudice the prosecution in bringing home the guilt of the accused.
● In case the officer in charge admits an accused to bail, it is mandatory for him to record the
reasons or special reasons in the case diary and preserve the bail bonds until they are
discharged either by the appearance of the accused in court or by the order of a competent
court.

Cases
● In Shakuntala Devi v State of UP
○ court explained that word “may” has been used in Section 437 which should not be
read as mandatory rather it confer discretionary power on Court.

● State of Rajasthan v. Balchand

○ The basic rule may perhaps be tersely put as bail, not jail, except where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice
or creating other troubles in the shape of repeating offences or intimidating witnesses
and the like, by the Petitioner who seeks enlargement on bail from the Court.
● In the case of Gudikanti Narasimhulu v. Public Prosecutor,
○ Krishna Iyer, J., sitting as Chamber Judge, enunciated the principles of bail thus:
What, then, is "judicial discretion" in this bail context In the elegant words of
Benjamin Cardozo: The Judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his
own ideal of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated
benevolence. He is to exercise a discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to "the primordial necessity of
 order in the social life". Wide enough in all conscience is the field of discretion that
remains.
● In the case of Prahlad Singh Bhati v. NCT,
○ court held that It has also to be kept in mind that for the purposes of granting the bail
the legislature has used the words "reasonable grounds for believing" instead of "the
evidence" which means the court dealing with the grant of bail can only satisfy it
(sic itself) as to whether there is a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence in support of the charge. It
is not expected, at this stage, to have the evidence establishing the guilt of the
accused beyond reasonable doubt

● State of Kerala v. Raneef,

○ in deciding bail applications an important factor which should certainly be taken into
consideration by the court is the delay in concluding the trial.

● Sanjay Chandra v CBI

○ court stated that at the time of considering bail the sentiments of community are not
to be taken into account for rejecting a bail plea.
○ Court held that it should not function as per whims of society judges should not work
in arbitrary manner.

WHEN RELEASE ON BAIL IS MANDATORY

When arrestee is not accused of a non-bailable offence

● When accused of a non-bailable offence and is arrested or detained without warrant and he
is ready to give bail → PO or court is release him on bail
● Can also release on basis of execution of a bond without sureties

● Covers all cases of persons accused of bailable offences, against whom security proceedings
have been initiated under chapter 8 and all other cases of arrest and detention which are not
in respect of any non-bailable offence.
● When a person released under Sec.436(1) has failed to comply with the conditions of the
bail → the court may refuse to release him on bail when on a subsequent occasion in the same
case [Sec.436(2)].
● Sec.436 is a right to bail and should not be excessive in nature
○ Refusal to grant bail in contravention of Sec.436 would make the detention illegal
and → Sec.342 IPC (wrongful confinement)
● Sec.436A -- a person not accused of DP but has undergone detention of a ½ a period of
imprisonment prescribed can be released on personal bond with or without surety.
● Sec.439 → appeal against refusal to grant bail before the HC and Session Court
● Sec.440 → the amount of every such bond shall be fixed with due regard to the circumstances
of the case and should not be excessive
○ Sec.440(2) → bail amount can be reduced by HC and Session Court
When the investigation is not completed within the time prescribed

● Detainment → not more than 24hrs

○ If more, then PO to get special order from Magistrate under Sec.167
■ 90 days → if DP, LI or 10yrs<
■ 60 days → otherwise
● Upon expiry of such periods, then the accused shall be released on bail (if prepares and
furnishes bail)
○ Not an automatic grant of bail
○ Magistrate can authorise for a longer period of time, but if the accused has furnished
the bail, then has to be released on bail → Joginder Singh v State of Punjab
● Claim of bail should be made before the submission of the chargesheet.
● If no bail was granted under Sec.167(2) prior to the submission of the charge-sheet, the
accused could seek bail only under Sec.437

When no reasonable grounds exist for believing the accused guilty of non-bailable offence
● When accused is arrested or detained without a warrant for a non-bailable offence and is
bought before the court and it appears at any stage of the case (investigation, inquiry or even
trial) that there are no reasonable grounds for beliving that he has committed the offence, but
there are sufficient grounds to further enquire into his guilt, he can be released on bail or
bond. → Sec 437(2)
● Reasons has to be recorded for the same → Sec.437(4)

Where trial before Magistrate not concluded within 60 days

● 60 days from the first date fixed for taking evidence in case
● Non-bailable offence
● Is in custody for the whole duration of the said period
● Released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in
writing the Magistrate directs otherwise → Sec.437(6)
● Not applicable for cases triable by sessions court

Where no reasonable ground exists for believing the accused guilty after conclusion of trial but
before judgement.
● anytime after the conclusion of trial
● accused of a non bailable offence
● before the judgement is delivered
● Court of the opinion that there are reasonable grounds for believing that accused is not guilty
● released on the execution of a bond without surety
● Sec 437(7)

DISCRETION IN GRANTING BAIL IN CASES OF NON-BAILABLE OFFENCES

● Bail is discretionary in cases of all non bailable offences
● Discretion should be guided by law -- has to be exercised based on the principles laid down
in the CRPC
● How is discretion to be exercised
○ Arrested person is punishable with imprisonment for three years or more but not less
than 7 years is arrested without warrant he may be released on bail. → Sec.437(1)
○ detention pending criminal proceedings is not punishment and the law favours
allowance of bail which is the rule and refusal of it which is an exception → Rao
Harnarain Singh v State
○ Circumstances to be taken into consideration
■ enormity of the charge
■ nature of the accusation
■ severity of punishment with the conviction will entail
■ the nature of evidence in support of the accusation
■ The nature and gravity of the circumstances in which the offence is
committed

■ the position and status of the accused with reference to the victim and the
witnesses
■ the danger of witnesses being tampered with
■ the likelihood of accused fleeing from justice
■ probability of the accused committing more crimes
■ the protracted nature of the trial
■ health, age and sex of accused person etc
■ Jagdish Kumar v State of Del
● Proviso to Section 437 clause 1 -- a person who has been accused of offences punishable
with death or life imprisonment or imprisonment for seven years or more shall not be
released on bail without giving an opportunity of hearing to the public prosecutor.
● Simply because of co-accused has been granted bail and accused cannot be granted bail.
● An order refusing an application for bail does not necessarily preclude another on a letter
occasion from giving more details, materials further development and different
considerations.
● The court should indicate reasons for refusal of bail
● a second bail application should normally be presented before the judge who had rejected
the earlier one.
● No bail in case of offence punishable with death or imprisonment for life
○ No person shall be released on bail if there a reasonable grounds for believing that
he has been guilty of an offence punishable with death or life imprisonment
→ sec.437(1)
○ However bail can be given to women or sick or infirm person or persons under the
age of 16 years → Proviso to Sec.437(1)
● Bail with conditions
○ Person shall attend in accordance with the conditions of the bail or bond
○ shall not commit any offence
○ shall not directly or indirectly make any inducement or threat or promise to any
person acquainted with the facts of the case even witnesses.
○ Court may also impose in the interest of justice at the conditions as it may consider
necessary .
 ● Power of HC or Sessions Court in granting bail
○ Direct any person being released on bail
○ May impose any conditions which it considers necessary
○ Set aside conditions imposed by magistrate
○ Must give notice to the public prosecutors → Sec.439(1)
○ power very wide
○ it is considered desirable by High Court that the lower courts should first be
moved in the matter with respect to Section 439

○ The discretion given to the High court under Section 439 should be exercised
keeping in mind the reason that used by the lower Court while rejecting or accepting
the prayer for bail
○ They must be rule in entertaining application for bail under section 389
○ High court is not expected to grant bail for a short period to watch the conduct of
the accused
○ Before conclusion of the trials and before disposal of the appeal the trial court or the
appellate court can require the accused to execute bail bonds with sureties to appear
before the Higher Court.

ANTICIPATORY BAIL
● Anticipatory bail means bail in anticipation of an arrest. Any person who apprehends arrest
under a non-bailable offence in India can apply for Anticipatory Bail under the provisions
of section 438 of The Code of Criminal Procedure, 1973.
● The words anticipatory bail is neither found in section 438 nor in its marginal note.
● The anticipatory bail is nothing but a bail in the event of arrest, when any person has an
apprehension or reason to believe that he may be arrested of an accusation of having
committed a non-bailable offence then he may apply to High Court or Court of Sessions for
direction that in the event of arrest he shall be released on bail.
● Therefore, the said powers are exclusively vested with the Court of Sessions and High
Courts.
● For considering the application for anticipatory bail the prerequisite condition is that the
offence must be non bailable.
● There must be a sufficient reason to believe that the applicant may be arrested in said
accusation.
● The Sessions Court or the Hon'ble High Court considering the nature and gravity of
accusation, the antecedent of applicant, the possibility to flee from justice and whether the
accusation has been made with object of injury or humiliating the applicant by having him
arrested may either reject the application or issue an interim order for the grant of
anticipatory bail.
● When the respective court has not passed any interim order or has rejected the application
then the officer-in-charge of the police station has the right to arrest the accused without warrant.
● The interim order along with the seven days notice must be served to the Public
Prosecutor and Superintendent of Police with a view to give them an opportunity for hearing on
the application.
● The presence of applicant seeking anticipatory bail shall be obligatory at the time of final
hearing of application and passing final order by the Court. But the Public Prosecutor must have
to apply for the same.
 Conditions Imposed under S.438(2)
● that the persons shall make himself available for the interrogation by police officer as and
when required;
● that the person shall not directly or indirectly make any inducement, threats or promise to
any witness;
● that a person shall not leave India without previous permission of the Court.

Guidelines to be Followed for anticipatory bail

In Gurbaksh Singh Sibba v. State of Punjab the Hon’ble Supreme Court bestowed the prerequisites to
be followed by the competent Courts while granting anticipatory bail:

1. Ordinary bail is different from anticipatory bail because the primary one is effective after the
person is taken into custody. It means first the person is arrested then released on bail. In the
latter, i.e. anticipatory bail, it is operative from the duration of the arrest. It means the person
can be released even from getting arrested.
2. The powers can be exercised by the Sessions Court and High Court and it is a carte blanche
power with broad discretion.
3. The competent courts must use their brain and application of subtle mind and should not allow
the Magistrate to decide whether bail should be granted or not under § 437 of Cr.P.C.
4. Anticipatory bail orders are not blanket orders. The person anticipating detention must have
bona fide reasons to believe that he may be arrested by police for an offence. Such belief is
sine qua non to the court’s power to grant bail and vague apprehension that he may be arrested
for a non-bailable offence so that the court may take care to specify the offence or offences in
respect of which alone order will be effective and not a blanket order.
5. The courts while deciding on the question of anticipatory bail, must conform to the
requirements of § 438 Cr.P.C and rules made thereunder. The court may impose conditions as
it requires or deems fit to allow the accused to appear before it when required during the trial
if any. The court, further, must give notice to the Prosecutor of such application for grant of
anticipatory bail but it may give such notice after disposing of the application.
6. The court cannot restrict the duration of the bail order by specifying any specific time for which
it shall be operative.
7. It has been a common phenomenon that rivals lodge false FIRs and wrong cases to tarnish the
image of their opponents or to humiliate them. If it appears to the courts deciding on
anticipatory bail that the offence accused of is due to some ulterior motive or hidden
conspiracy, the court should allow the bail provided the court ensures to its satisfaction that the
person will not flee from justice.
8. The court held that it is not necessary that an FIR must be lodged against the person desirous
of anticipatory bail to prove his apprehension.
9. An anticipatory bail order has no effect on the power of the police to investigate, i.e. to
interrogate the accused, search his place and seize anything that can be incriminating provided
it is done lawfully.

Scope And Ambit Of Anticipatory Bail

● The court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, has
discussed the scope and ambit of anticipatory bail and said that principles regarding it has
been laid down in the Sibbia’s case should be followed by the court.
○ Section 438 (1) is to be interpreted in light of Article 21 of the Constitution of
 India.
○ Filing of FIR is not a condition precedent to exercise of power under Section 438.
○ Order under Section 438 would not affect the right of police to conduct investigation.
○ Conditions mentioned in Section 437 cannot be read into Section 438.
○ Although the power to release on anticipatory bail can be described as of an
"extraordinary" character this would "not justify the conclusion that the power must
be exercised in exceptional cases only."
● Powers are discretionary to be exercised in light of the the expression “anticipatory bail”
is also not defined in Cr.P.C.
● Supreme Court in Balchand Jain v. State of M.P
○ has characterized anticipatory bail to mean ‘a bail in anticipation of arrest’.
○ The expression is a misnomer as it represents a futility that bail may be granted by
the court in apprehension of an arrest.
○ When a competent court grants “anticipatory bail”, it issues an order that in case of
an arrest, the person shall be released on bail.
● It has been held in the Gurbaksh Singh Sibbia v. State of Punjab
○ that s. 438 of Cr.PC was enacted to protect those people who are implicated by their
rivals in false cases for the purpose of disgracing them or for other purposes by
detaining them in jail.

● Dr Subhash Kashinath Mahajan v The State Of Maharashtra And Anr

○ Exercise of jurisdiction under Section 438 CrPC is an extremely important judicial
function of a Judge and must be entrusted to judicial officers with some experience
and good track record.
○ Both the individual and society have vital interest in orders passed by the courts in
anticipatory bail applications.
● The Supreme Court in Siddharam Satlingappa Mhetre v. State of Maharashtra,

○ observed: the law of bail dovetails two conflicting interests namely, the obligation
to shield the society from the hazards of those committing and repeating crimes and
on the other hand absolute adherence to the fundamental principle of criminal
jurisprudence - presumption of innocence and the sanctity of individual liberty.

● Union of India v Nirala Yadav

○ Court held that Magistrate should decide the application for statutory bail on the
same day it is filed.
● Natbar Parinda v State of Orissa
○ Hon’ble Supreme Court noted that the accused has a right to be released on bail
under this provision even in serious and ghastly types of crimes.

● Rakesh Kumar Paul vs. State of Assam(16-08-2017)

○ held that an accused is entitled to statutory bail (default bail) under Section
167(2)(a)(2) of Code of Criminal procedure if the police failed to file the charge-
sheet within 60 days of his arrest for the offence punishable with ‘imprisonment up
to 10 years.

CANCELLATION OF BAIL
 ● The Code of Criminal Procedure makes clear provisions for cancellation of bail and taking
accused back in custody. Section 437(5) states that any court which has released a person on
bail under sub-section (1) or sub-s. (2) of s. 437, may, if it considers it necessary so to do,
direct that such person be arrested and commit him to custody.
● Similarly s. 439 confers on the High Court and the Court of Session power to cancel bail.
Section 439(2) The Code of Criminal Procedure makes clear provisions for cancellation of bail
and taking accused back in custody.
● The power of cancellation of bail can be resorted to broadly in the following two
situations:
○ (i) On merits of a case mainly on the ground of the order granting bail being perverse,
or passed without due application of mind or in violation of any substantive or
procedural law; and
○ (ii) On the ground of misuse of liberty after the grant of bail or other supervening
circumstances.
○ Bail in the first type of cases can be cancelled by superior courts only, whereas in
the second category of cases bail can be cancelled by the very court which may have
granted bail.
● Sometimes the principles of cancellation of bail on the ground of subsequent conduct or
intervention of new circumstances have been wrongly brought in and applied to the cases where
cancellation of bail is sought on the merits of the case.
● legal provisions pertaining to cancellation of bail under Cr.P.C are mainly contained in
S.437 (5) and 439(2).

● Section 437(5) provides for the cancellation of bail by a court other than a High Court or a
Sessions Court.
○ Meaning thereby it confers power of cancellation on the Magistrate court.
○ It states that a court other than High court or Sessions Court, may, if it considers
necessary to do so, direct that a person released on bail by it be arrested and
committed to custody.
○ By judicial pronouncements this provision has been interpreted to mean that any
court that has released the accused on bail has power to direct arrest of such person and
commit him to custody if subsequent to the release on bail, the circumstances justify to
do so.
○ However, bail once granted should not be cancelled in a mechanical manner
without considering whether any supervening circumstances have rendered it no longer
conducive to a fair trial to allow the accused to retain his freedom by enjoying the
concession of bail during the trial.

Grounds for cancellation

● The grounds for cancellation of bail under ss. 437(5) and 439(2) are identical, namely, bail
granted under S.437(1) or (2) or s.439(1) can be cancelled where the accused
○ misuses his liberty by indulging in similar criminal activity,
○ interferes with the course of investigation,
○ attempts to tamper with evidence of witnesses,
○ threatens witnesses or indulges in similar activities which would hamper smooth
investigation,
○ attempts to flee to another country,
 ○ attempts to make himself scarce by going underground or becoming unavailable to
the investigating agency,
○ attempts to place himself beyond the reach of his surety, etc.
● Section 439(2) confers powers on the High Court and the Sessions Court to direct re-arrest
of the accused who might have been released on bail by any court and commit him to
custody.
● A comparison of s. 439(2) and s. 437(5) makes it clear that the powers of cancellation of
bail vested in the High Court and the Sessions Court are very wide vis--vis the powers of the
Magistrate court. s. 439(2) confers powers of cancellation of bail on the High Court and the
Sessions Court in respect of orders of bail passed itself as well as by any court subordinate to it
also.
● The power to cancel an order of bail passed by itself by the High Court or the Sessions
Court as the case may be, can usually be exercised only where the person released on bail is
guilty of misuse of the liberty granted by the court or there is substantial change in the facts of a
case.

● Section 439(2) clearly provides that any person who has been released on bail under this
Chapter may be arrested and committed to custody by a High Court or Court of Sessions.
● Magistrate has power to pass the subsequent order altering or amending or deleting the
conditions of the earlier bail order in any manner whatsoever. Section 437 (5) of Cr.P.C.
impliedly confers such power on him.
● When the Magistrate is conferred with the power to cancel his order, then, as a logical
corollary, it follows that he does have the power as well to amend or effect necessary alterations,
short of cancellation, in the earlier bail order passed by him
● Bail already granted cannot be cancelled on the ground that police needs custodial
interrogation of the accused.

BAIL AFTER CONVICTION

● Section 389 (1) and (2) of Cr.P.C. deals with a situation where convicted person can get a
Bail from appellate court after filing the criminal appeal.
● Section 389 (3) deals with a situation where the trial court itself can grant a bail to convicted
accused enabling him to prefer an appeal.
● The Patna High Court in Suddu kumar vs. State of Bihar has observed that if a prayer for
suspension of sentence and release of an appellant on bail, convicted of a capital crime and
sentenced to undergo imprisonment for life, it is to be considered favourably and he is
ordinarily allowed bail if he has completed seven years of incarceration in connection with
such case before conviction and after conviction, taken together when his appeal is not likely
to be heard on merits in near future, on the ground of possible delay in the disposal of the
appeal.

● A Two Judge Bench of the Supreme Court, in Atul Tripathi V. State of UP discussed
the scope and ambit of Section 389 ofCr.P.C and issued the following Guidelines regarding the
suspension of Sentence during the pendency of Criminal Appeal.
○ The appellate court, if inclined to consider the release of a convict sentenced to
punishment for death or imprisonment for life or for a period of ten years or more, shall
first give an opportunity to the public prosecutor to show cause in writing against such
release.
 ○ On such opportunity being given, the State is required to file its objections, if any,
in writing.
○ In case the public prosecutor does not file the objections in writing, the appellate
court shall, in its order, specify that no objection had been filed despite the
opportunity granted by the court.
○ The court shall judiciously consider all the relevant factors whether specified in
the objections or not, like gravity of offence, nature of the crime, age, criminal
antecedents of the convict, impact on public confidence in court, etc. before passing an
order for release.

POWERS OF APPELLATE COURT IN RESPECT OF GRANTING BAIL

● While any appeal against conviction is pending the appellate court may suspend the
execution of the sentence and the convicted person is in confinement apple in court made
reason on bail on his own Bond → Sec. 389(1)
● Reasonable period of time for the hearing of substantive appeals on capital charge is
pending in the High Court must be broadly placed at 1 year
● The case of Kashmira Singh versus State of Punjab held that an appellant would become
Entitled to claim bail on the grounds of delay in hearing the appeal itself unless they are
permanent crowns of acting otherwise
● the circumstances in which the convicted person who intends to file an appeal against
conviction is to be released on bail by trial court are
○ where the person being on bail sentenced to imprisonment for a term not exceeding
three years or
○ where the offence of which such person has been convicted is a bailable one and he
is on bail → Sec.389(3)
● An appeal against the order of acquittal can be made only to the High court under
Sec.378
○ Once this is made the High court to issue a warrant of arrest against the equator
diffused person and commit him to present pending the disposal of appeal on a admit
him on bail → Sec.390
● The Supreme court is not in applent court as contemplated under section 389 clause 1 and
the provisions of section 389 would not be applicable in the case of appeals to the Supreme court.
● The appellant court shall hear the public prosecutor for showing cause against the release
of the accused if he is convicted of an offence punishable with death or life imprisonment or
imprisonment for a term of not less than 10 years.

PROVISIONS REGARDING BOND OF ACCUSED AND SURETIES

Bail, in common parlance, means the amount to be furnished by the accused who is arrested on the suspicion
of the commission of an offence. Bond is the written declaration by the accused that he will abide by all the
orders and instructions of the authorities and if he fails to do so, a certain amount may be paid.

Section 441 makes provision regarding bond of accused and sureties. It provides that a person who is
accused of an offence under any penal law can be released on bail or on his personal bond if the person is
willing to do so. At the time of releasing any person on bail, the authority may ask such person to execute
a bond for a certain sum of money to ensure that the person appears before such authority as and when
required.
Further, if the authority wants, it can release the person on his personal bond without any bail amount to be
paid. During the execution of these bonds, the law usually requires that the bond be executed by at least
two sureties as well. The sureties are people who act as guarantor for the appearance of the accused before
the appropriate authority.

Section 441 (4) makes it crystal clear that if the accused is released on his personal bond and he fails to
furnish the amount of bail, the sureties who executed the bond along with the accused shall be liable to pay
the amount of bail and any other amount as punishment.

Where it was conceded that the surety bond was for the attendance of the accused in a particular court and
therefore, the liability of the surety came to an end when the case was transferred to another court, and that
failure of the accused to appear before the second court would not cause forfeiture of the bond.

In Hussainara Khatoon v. Home Secretary, State of Bihar, the court held that if the court or other
competent authority is satisfied that the accused is attached or very closely related to his hometown or his
place of residence such that it is not likely that he will abscond and flee from justice, the court may release
the accused on his execution of a personal bond.

To determine whether the accused has his roots in the community, it essential to look into the following
factors:

1. The span of his dwelling in the said area or coterie,

2. His enrolment in any payable job, his recidivism and his good character,
3. His relationship with the ménage and personal ties with kith and kins.
4. His stature in the society and his fiscal or pecuniary exigencies,
5. His act of recidivism, if any, and any circumstances before this where the person was arrested
for an offence and/or released on bail,
6. The congruence to substantiate in favour of the release of the person.
7. The trait of the crime with which the accused is charged

Any other factors that the court considers necessary that may result in the change of the opinion of the court
as to the determination of whether

TRIAL

· Trial of Warrant Cases:

. Section 2 (x) defines warrant cases where the punishment prescribed by the law for the offence tried is
more than 2 years of imprisonment including incarceration for life and the death penalty.

There are two types of warrant cases, viz. warrant cases instituted on submission of the police report and
warrant cases instituted otherwise. In a nutshell, if an offence is cognizable, a person (informant) can
lodge an FIR in the police station, the police conducts the investigation and at the end when the police
finds sufficient evidence against the accused person(s), it submits a report to the Magistrate and on the
basis of the report, trial commences. These cases are cases instituted on the police report.
On the other hand, when an offence is non-cognizable or if the police refuse to lodge an FIR or for any
other reason, FIR cannot be filed, the next best alternative is to lodge a complaint before the Magistrate.
On the basis of the complaint, the Magistrate initiates the proceedings.

a)Trial of warrant cases before a Sessions Court,

ü Sessions Cases refers to those cases where the offences are such that they are punishable with
punishments such as death, life imprisonment for term more than 7 years and such cases are
required to be dealt by Sessions court after it has been forwarded by Magistrate to the court.
ü As per Section 225, every trial before Sessions Court has to be conducted by a public
prosecutor. After it, in accordance with Section 226, the Public prosecutor starts the case with
presentation of his opening statements and explains the charges framed against the accused.
ü As per Section 227, if, after listening to the statements from the accused and the prosecution
and examining the evidences collected, the judge is of the view that the grounds are not
sufficient to proceed against the accused, he can discharge him with the reason mentioned for
doing so.
ü The charges framed are to be read aloud clear in front of accused with easy, understandable
language and asked if he accept guilt for the charges or not (Section228). If he pleads guilty
for the charges framed, the judge, at his discretion, convict the accused with due procedure
(Section 229). If he refutes the charges put, the judge fixes a date for the examination of
witnesses by prosecution, document presentation etc. (Section 230). On the date fixed,
evidences are presented and cross examination of witnesses takes place (Section 231). If the
prosecution’s evidences and cross examination fails to prove the charges, the judge acquits
the accused (Section 232). If the accused is not acquitted, the defence may adduce the
evidences in support of their client (Section 233). Section 234 and 235 deals with the
arguments and the closing statements of defence and prosecution respectively.

(b) Trail of warrant cases before a Magistrate

From Section 238 to Section 250 lays down provisions relating to Warrant Trial. Sec 238 to 243 and Sec
248 to 250 deals with police reports while rest in cases instituted otherwise than police reports. As per
Section 238, the magistrate should satisfy himself that he has got all the required documents with charge
sheet. If the magistrate considers that the charges against the accused are groundless, he can discharge the
accused while recording the reasons for it. If the accused pleads guilty, the magistrate records it and
convicts the accused as per his discretion (Section 241).

Section 242 deals with the procedure of gathering evidence against and its cross examination to acquit or
convict the offender. The burden of proof for proving guilty lies on prosecution and evidence need to be
beyond doubt. Sec 242(1) deals with fixing date, 242(2) examination of witness and Sec 242(3) with
recording of the evidence. Section 243 deals with collecting and presenting evidences in defence
of accused. Sec 243(1) is concerned with recording written statements of accused and Sec 243(2)
deals with examination of witness by defence.

· Trial of Summons case:

Summons cases are those warrant cases in which punishment does not exceed 2 years. Chapter XX from
Section 251 to 259 deals with it. Section 251 concerns with explanation of charges to accused and asking
whether he plead guilty or not. If he pleads guilty, magistrate records his exact words and convict
accordingly (Section 252). In absence of the accused, either a letter containing acceptance of guilt with
fine or the lawyer’s statements are recorded for further proceedings (Section 253). Section 254 deals with
situation when accused does not plead guilty and summons witnesses for further proceedings. In case the
charges are proved, the accused is convicted and if not, he is acquitted (Section 255). In case of death or
absence of complainant on hearing day, the court can acquit accused except for reason for adjournment
(Section 256). Section 257 provides the provisions related to withdrawal of case by the complainant
before final judgement by satisfying the magistrate. Under the provisions of Section 258, A First Class
Magistrate, with previous sanction from Chief Judicial Magistrate can stop the proceedings, if after
evidence recorded, it is judgement of acquittal and if before recording evidence, it is judgement of
discharge.

Summons Case Warrant case

Cr P C prescribes only one procedure for all Cr PC prescribes two procedures for the trial of a
summons cases, whether instituted upon a police warrant case my magistrate - one for case instituted
report or otherwise. upon a police report and one for case instituted
otherwise than on a police report.

No charge needs to be framed only the particulars of A charge needs to be framed against the accused.
the offence needs to be conveyed to the accused.

As per S. 252, if the accused pleads guilty, the As per S. 241, After the charge is framed, the
magistrate must record the plea of the accused and accused may plead guilty and the magistrate may
may, in his discretion, convict him on such plea. convict him on his discretion.

Accused my plead guilty by post without appearing Accused must appear personally.
before the magistrate.

The accused may be acquitted, if the complainant is Magistrate can discharge the accused if complainant
absent or if the complainant dies. is absent, or no charge is framed, or if the offence is
compoundable and non cognizable.

The complainant may, with the permission of the The complainant may, with the permission of the
court, withdraw the complaint against the accused. court, withdraw the remaining charges against an
accused, if he is charged with several offences and
convicted on one or more of them.

When a warrant case is tried as a summons case and When a summons case is tried as a warrant case and
if the accused is acquitted under S. 255, the acquittal if the accused is discharged under S 245, the
will only amount to discharge. discharge will amount to acquittal.

Trial of a warrant case as a summons case it is a Trial of a summons case as a warrant case is an
serious irregularity and the trial is vitiated if the irregularity which is curable under Section 465.
accused has been prejudiced.

A summons case cannot have charges that require a A warrant case may contain charges that reflect a
warrant case. summons case.

Accused gets only one opportunity. Accused may get more than one opportunity to
cross-examine the prosecution witness.

A charge under a warrant case cannot be split up into

its constituents for trial under summons case.
No such power to the magistrate in summons case. After convicting the accused, the magistrate may
take evidence regarding previous conviction not
admitted by the accused.

All cases which are not punishable by death, All cases which are punishable by death,
imprisonment for life, or for more than two years are imprisonment for life, or for more than two years are
summons cases. warrant cases.
Conversion A warrant case cannot be converted into a summons
As per Section 259, a summons case can be case.
converted into a warrant case if the case relates to an
offence that entails more than 6 months of
imprisonment as punishment and the judge feels that
in the interest of justice it the case should be tried as
a warrant case.

· Summary Trial

In these types of trials, the cases are disposed of speedily as te procedure is simplified and recording done
summarily and also they deals with small/petty offences. The provisions relating to are laid down in
Section 260-265. The provisions mentioned in Section 260 lists out the offences that can be tried
summarily by magistrates. If a magistrate thinks it can’t be tried summarily, he can recall any witness
who has been examined. Under Section 261, the high Court has the powers to confer Second Class
Magistrate with power to try cases summarily. Section 262 lays down the procedure of Summary Trials.
The procedure remains same as Summons case with only exception that sentence exceeding 3 months
can’t be passed under it.

Section 263 lays down the procedure to formulate record in summary trials. Section 264 lays down the
way in which the judgement is made in summary trials. The magistrate records evidence’s substance and
brief statement of reasons of finding. Section 265 lays down that the records and judgements are to be in
language of court concerned. The High Court can bestow such powers on magistrate

CHARGES

INTRODUCTION
● A “charge” simply means an accusation.
● formal accusation in writing against a person that he committed an offence.
● the accused is to be informed of the accusation in the beginning itself. In case of serious
offences, it is further required that the accusation is precisely and clearly formulated in
writing.
● In framing the charge in a case instituted upon a police report, the court is required at the
time of framing of the charge to confine its attention to documents referred to under
Section 173.
● warrant case, (Sessions Court, or whether it is by a Magistrate) → a formal charge in
writing is essential;
 ● trial of a summons case or in a summary trial, it is enough if, instead of a formal charge,
the substance of the accusation is stated to the accused.
● In the cases instituted otherwise than on a police report, the Magistrate is required to write
an order showing reasons only if he decides to discharge the accused.
● Having regard to the language of Sections 207 and 227, while framing charges the trial court
can only look into the material produced by the prosecution, while giving an opportunity to
the accused to show that the said materials were insufficient for the purpose of framing
charges.
● At this stage of charging, the trial judge is not empowered to invoke Section 311 and call
witnesses.

FORM AND CONTENTS OF A CHARGE

● Section 211 of Cr.PC constitutes essentials elements of the contents of the charge:
○ The charge form shall state the offence for which the accused is charged.
○ The charge form shall specify the exact offence name for which the accused is
charged.
○ In case there is no specific name given under any law for the offence which the
accused is charged with, then the definition of the offence must be clearly stated in
the charged form and informed to the accused.
○ The law and provisions of the law to be mentioned in the charge form.
○ The charge shall be written in the language of the court.
○ The accused shall be informed about his previous allegations which would expose
him to enhanced punishments if found guilty for the offence charged.

● In the case of Court in its motion v Shankroo (1982), the court held that mere mentioning
of the Section under which the accused is charged, without mentioning the substance of the
charge amounts to a serious breach of procedure.
● In Dal Chand v State (1981), the court held that defect in charge vitiates the conviction.
● Section 212 of Cr.PC asserts the charge form shall contain:
○ The offence for which the accused is charged and the particulars like the time, place
and the person against whom the offence is committed and giving to the accused the
precise and clear notice of matter for which he is charged.
○ The exact time need not be mentioned in the charge form when the accused is
charged with criminal breach of trust or dishonest misappropriation of money or any
other movable property, it is sufficient if the gross sum is specified and the dates on
which such alleged offence have been committed.
● In Ranchhod Lal v. State of Madhya Pradesh (1964), it was held that failure to mention
the particulars precisely due to the nature of the information may not invalidate the proceedings.

● Section 213 of Cr.PC

○ When the nature of the case is such that the particulars mentioned in Section 211
and 212 do not give the accused sufficient notice of the matter with which he is
charged, the charge shall contain such particulars of how the alleged offence is
committed as will be sufficient for that purpose.
● The fact that the charge is made is equivalent to a statement that every legal condition
required by law to constitute the offence charged was fulfilled in the particular case. →
Sec.211(5)
 ● The charge shall be written in the language of the court. → [S. 211(6)]
● In every charge, words used in describing an offence shall be deemed to have been used in
the sense attached to them respectively by the law under which such offence is punishable.
→ [S. 214]
● The forms in which the charges may be framed are set forth in Form 32 of the Second
Schedule appended to the Code

ALTERATION OF CHARGE AND PROCEDURE THEREAFTER

● Section 216 of Cr.PC explains that courts shall have the power to alter or add to charge at
any time before the judgment is pronounced.
● The trial court or the appellate court may either alter or add to the charge provided the only
condition is:
○ Accused has not faced charges for a new offence.
○ Accused must have been given the opportunity of meeting and defending the charge
against him.
○ After such alteration or any addition made to the charge, the charge shall be
explained to the accused as to enable him to prepare to meet the fresh challenges.

● If the court concludes that the alteration or addition of the charge is likely to be prejudiced
to the accused or the prosecutor then the court may proceed with the original trial or adjourn
it.
● The case shall not move forward unless the sanction is obtained in respect of the facts
constituting the offence.
● The wide power of the trial court under Section 216 came to be adverted to by the
Supreme Court in CBI v. Karimullah Osan Khan.
● Section 216 gives tremendous power to the trial court, that is, even after the completion
of evidence, arguments heard, and the judgment reserved, it can alter and add any
charge, subject to the conditions mentioned therein.
● The court can change or alter the charge if there is defect or something is left out, and it is
not the purport of Section 216 CrPC that charges already framed cannot be altered unless
evidence has been let in.

● The court should not alter or add to any charge to the prejudice of the accused person.
● In Ranbir Yadav v. State of Bihar, it was stated that on a combined reading of Sections 216
and 217, it is evident that after an alteration of charges the interest of the prosecution and the
accused has to be safeguarded by permitting them to further examine or cross-examine the
witnesses already examined.
● Whenever a charge is altered after the commencement of the trial, every party shall be
allowed
○ (a) to recall or resummon, and examine with reference to such change in the charge
any witness who may have been examined, unless the court, for reasons to be
recorded in writing, considers that the party desires to recall or re-examine such
witness for the purposes of vexation or delay or for defeating the ends of justice; and
○ also to call any further witness whom the court may think to be material →
Sec.217
 BASIC RULE REGARDING CHARGES
● for every distinct offence of which any person is accused there shall be a separate charge,
and every such charge shall be tried separately → [See, S. 218(1)].
● A separate charge as required by the basic rules is for every distinct offence and not
necessarily for “every” or “each” offence. Two offences are distinct if they are non-identical
and are not in any way interrelated.

The exceptions to the basic rule

● Desire of accused.

○ Where the accused person, by an application in writing, so desires and the Magistrate
is of opinion that such person is not likely to be prejudiced thereby, the Magistrate
may try together all or any number of the charges framed against such person. [See,
Proviso to S. 218(1)].
○ would help in avoiding multiplicity of criminal proceedings and thereby save time
and money.
● Three offences of same kind within year may be charged together.
○ When a person is accused of more offences than one of the same kind committed
within the space of 12 months from the first to the last of such offences, he may be
charged with and tried at one trial for any number of them not exceeding three. [S.
219(1)]

○ Offences are considered to be of the same kind when they are punishable with
the same amount of punishment under the same section of the law. [S. 219(2)]
● Offences committed in the course of the same transaction
○ If, in one series of acts so connected together as to form the same transaction, more
offences than one are committed by the same person, he may be charged with and
tried at one trial for every such offence. [S. 220(1)]
○ What is meant by “same transaction” has not been defined in the Code, and a
precise definition of this expression would always be difficult. But it is generally thought
that where there is proximity of time or place or unity of purpose and design or continuity
of action in respect of a series of acts, it may be possible to infer that they form part of
the same transaction.
● Offences of criminal breach of trust or dishonest misappropriation of property and their
companion offences of falsification of accounts.
○ When a person charged with one or more offences of criminal breach of trust or
dishonest misappropriation of property as provided in Section 212(2)22 or in Section
219(1) is accused of committing, for the purpose of facilitating or concealing the
commission of that offence or those offences, one or more offences of falsification
of accounts, he may be charged with and tried at one trial for every such offence. [S.
220(2)]
● Same act falling under different definitions of offences.
○ If the acts alleged constitute an offence falling within two or more separate
definitions of any law by which offences are defined or punished, the person accused
of them may be charged with and tried at one trial for each of such offences. [S.
220(3)]
● Acts forming an offence, also constituting different offences when taken separately
or in groups

○If several acts, of which one or more  221 than one would by itself or themselves
constitute an offence, constitute when combined a different offence, the person
accused of
○ them may be charged with, and tried at one trial for the offence constituted by
such acts when combined, and for any offence constituted by one or more of such acts.
[S. 220(4)]
● Where it is doubtful what offence has been committed.
○ If a single act or series of acts is of such a nature that it is doubtful which of several
offences the facts which can be proved will constitute, the accused may be charged
with having committed all or any of such offences, and any number of such charges
may be tried at once (i.e. at one trial), or he may be charged in the alternative with
having committed any one of the said offences. [S. 221(1)]
○ It may be noted that the above exception is applicable in respect of cognate
offences such as theft and criminal breach of trust and that it does not refer to offences
of a distinct character such as murder and theft.

Joinder of Charges
● Persons accused of the same offence committed in the course of the same transaction. [S.
223(a)] The words “same offence” means an offence arising out of the same act or series of
acts.26 They imply that the accused persons must have acted in concert or association. The
expression “same transaction” occurring in this clause and in subsequent clauses of this
exception [i.e. S. 223(a), (b)] as well as that occurring in Section 220(1) [i.e. in para. 3(3)
above] ought to be given the same meaning.
● Persons accused of an offence and persons accused of abetment of or attempt to commit
such offence. [S. 223(b)]
● Persons accused of more than one offence of the same kind, within the meaning of Section
219 [i.e. those referred to in para. 3(2) above] committed by them jointly within the period
of 12 months. [S. 223(c)] Here the number of offences for which several accused persons
could be tried need not be limited to three.
● Persons accused of different offences committed in the course of the same transaction. [S.
223(d)] The offence of conspiracy and the offences committed by each conspirator in pursuance
of the conspiracy are “offences committed in the course of the same transaction” within the
meaning of Section 220 [i.e. para. 3(3) above], and persons accused of such offences can be tried
jointly at one trial.
● Persons accused of an offence which includes theft, extortion, cheating or criminal
misappropriation, and persons accused of receiving or retaining or assisting in the disposal or
concealment of property, possession of which is alleged to have been transferred by any such
offence committed by the first named persons, or of abetment of, or attempting to commit any
such last named offence. [S. 223(e)]

● Persons accused of offences under Sections 411 and 414 IPC or either of those sections in
respect of stolen property, the possession of which has been transferred by one offence. [S.
223(f)]
● Persons accused of any offence under Chapter XII of the IPC relating to counterfeit coin,
 and persons accused of any other offence under the said chapter relating to the same coin, or of
abetment of or attempting to commit any such offence. [S. 223(g)]

● K. Satwant Singh v. State Of Punjab (1960),

○ sections of joinder of charges are not compelling. They only permit the joint trial of
charges under certain circumstances, and the courts may consider the same in the
interest of the administration of justice after thoroughly studying the facts and
circumstances of each case.

Conviction of an offence not charged when such offence is included in an offence charged
● Section 222 of Cr.PC provided when the accused is charged with several offences and some
of which when combined and proved form a complete minor offence, then the accused may
be convicted of a minor offence though he was not charged with such minor offence.
● Where the accused is charged with an offence, he may be convicted of an attempt to
commit such offence although the attempt is not separately charged.
● Unless the conditions are fulfilled for the conviction of the accused of the minor offence, the
conviction cannot take place. Eg: where the sanction is lacking.
● This section applies only when the major and minor offences are cognate.

Withdrawal of remaining charge on conviction on one of several charges

● Section 224 of Cr.PC states when the accused is charged with more than one head, and after
the conviction of the accused under that head then either the complainant or the officer
conducting the prosecution may withdraw the remaining charge with the consent of the court.
● Vibhubti Narayan Chaubey v. State of UP (2002), in this case, a charge can be
withdrawn under this section only after the judgment and it cannot be deleted.

EFFECT OF OMISSION TO FRAME, OR ABSENCE OF OR ERROR IN CHARGE

● No error in stating either the offence or the particulars required to be stated in the charge,
and no omission to state the offence or those particulars, shall be regarded at any stage of
the case as material, unless the accused was in fact misled by such error or omission, and it
has occasioned a failure of justice. [S. 215]
● No finding, sentence or order by a court of competent jurisdiction shall be deemed
invalid merely on the ground that no charge was framed, or on the ground of any error, omission
or irregularity in the charge including any misjoinder of charges, unless in the opinion of the
court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
[S. 464(1)]
● If the court of appeal, confirmation or revision is of opinion that a failure of justice has in
fact been occasioned, it may:
○ in the case of an omission to frame a charge, order that a charge be framed and that
trial be recommenced from the point immediately after the framing of the charge;
○ in the case of an error, omission or irregularity in the charge, direct a new trial to
be had upon a charge framed in whatever manner it thinks fit.
 ● However, if the court is of opinion that the facts of the case are such that no valid charge
could be preferred against the accused in respect of the facts proved, it shall quash the
conviction.
● Bhagabat Das v. The State of Orissa (1989): In this case, the court held that the
insignificant irregularities in stating the particulars of the offence in the charge will not affect
the trial or its outcome.

TRIAL BEFORE COURT OF SESSIONS

● Section 225-Trial to be conducted by the Public Prosecutor.

○ Before a Court of Session, the prosecution shall be conducted by the Public
Prosecutor.
○ The Public Prosecutor represents the State in all the trials before the Court of
Sessions.
○ In Shiva Kumar v. Humum Chand , it is held that the prosecution in the Court of
Sessions should be conducted by a Public Prosecutor and no other person can
conduct.

● Section 226-Opening Case For Prosecution.

○ When the accused commits an offence under Section 209, and the accused was
brought before the Court, the Prosecutor shall open his case by explaining the charge
against the accused and states the evidence he proposes to prove the guilt of accused.
○ The opening of prosecution always is to matters which are necessary to follow the
evidence.
○ It is not necessary to include the full documents of evidence to present before the
Court Of Sessions during the opening of prosecution.
○ The Prosecutor is required to address the witnesses of the case and whom he
proposes to call.

● Section227-Discharge
○ The Court, after consideration of the records of the case and the documents
submitted, and hearing the prosecution and the accused, if the judge considers that
there is no sufficient ground for proceeding against the accused, he shall discharge
the accused under Section227.
○ And it is necessary to record the reasons for discharging of accused.
● Section 228-Framing Of Charge
○ The Court, after considering the record of cases and documents as evidence and
hearing the prosecution and the accused, if it is found that the accused has committed
the offence, and exclusively triable in Court of Session, he will frame the charge
against the accused.
○ If the case is not exclusively triable in Court of Session, the judge may frame the
charge and transfer the case to Chief Judicial Magistrate or any other Judicial Magistrate
of First Class
 ○ In Bhawna Bai v. Ghanashyam& Ors, it was held that while framing the charges,
prima facie case has to be seen and at that stage, the Court is not required to record order.
Also, it is not necessary to record whether the case is beyond reasonable doubt

○ According to sec 228(2) of CrPC the charge must be read and explained to the
accused by the Court and ask the accused whether they want to plead guilty.
● Section 229 – Conviction on Plea of Guilty
○ Under this section, the Court can accept the plea of the accused and he also ensures
that the plea of the accused is made by himself, not under any influence.
○ The judge after recording the plea may in his discretion convict the accused.
● Section 230 – Date For Prosecution Evidence and Section 231 – Evidence for
Prosecution
○ If the accused refused to plead guilty or does not plead, or claim to be tried then the
Judge may issue any process for compelling the production of any document or for
the attendance of the witness or other thing.
○ The judge shall proceed to take all the evidence produced by the Prosecution.
● Section 232 – Acquittal
○ If there is no evidence against the accused then the judge can order acquittal under
Section232 or the evidence submitted by the prosecution against the accused, if the
court found it as groundless then a judge can order an acquittal

● Section233 – Defence
○ If the accused is not acquitted the steps for defence may starts and he shall be entered
on his defence to produce the evidence in his support.
○ The evidence produced by the defence in written form will be filed by the Judge as
a record.

● Section 235 – Judgement Of Acquittal or Conviction and Section 236 Previous

Conviction
○ After hearing the arguments(Section 234 CrPC), the judge will decide the case.
○ The judgement of acquittal or conviction is only after the hearing of both the
prosecution and the defence. Section 236 of CrPc states that, if the accused is
convicted previously under Section 211(7) and if the accused not admitting the
previous conviction, then the judge may call for the evidence of the previous charge.

EVIDENCE FOR PROSECUTION

● Section 244 states that in warrant cases instituted otherwise than a police report and filed
directly with the Magistrate, the accused is presented before the Magistrate who begins the
hearing process by summoning the witnesses named by the prosecution and taking all the
pieces of evidence produced as such.
● All evidence must be taken into consideration as under Section 138 of the Indian
Evidence Act and filed with the record by the Magistrate.
Steps in evidence presentation of prosecution.

● The accused cannot be charged by the Magistrate until the prosecution names witnesses or
presents evidence in relation to the case.
● All the important evidence is collected after the witnesses are examined and the Magistrate
determines if there is enough substance to frame a charge against the accused.
● The case cannot proceed further until the prosecution names witnesses and evidence is
collected, examined and recorded as can be seen in Gopala Krishnan V. State Of Kerala.
● The magistrate is not obligated to file summons for the presence of a witness, but it is the
responsibility of the prosecuting party to file an application with the Magistrate to request
the summons of witnesses who shall present themselves before the court on a specified date
and time as seen in Parveen Dalpatrai Desai V. Gangavishindas Rijharam Bajaj.

Summoning witnesses

● The application is made to the Magistrate by the prosecution to summon any witnesses and
the Magistrate issues the order to summon any witnesses or produce any document or thing
in relation to the case as seen in Jethalal V. Khimji.
● In the case of P.N. Bhattacharjee V. Shri Kamal Bhattacharjee, 1994, the Gauhati High
Court observed that the complainant was making extra efforts to order a summons to the
witnesses and it was the duty of the Magistrate to order a summon to all witnesses before giving
the order of dismissal just because the witnesses do not turn up.
● The Magistrate can also deny to examine witnesses whose names were not mentioned
under the list provided by the prosecution initially by rejecting the application. However, a
second application can be made to summon more witnesses other than the ones mentioned in the
list and the Court is bound to issue summons to them as seen in Jamuna Rani vs S. Krishna
Kumar, 1992.

Examination of witnesses

● The Magistrates examines the witnesses after summoning them to the Court. The law
provides the accused to re-examine or cross-examine any witnesses produced by the
prosecution after the charges against him are framed.
● However, this is not the same as an opportunity given for examination before the charges
are framed.
● The witnesses are examined and the Magistrate collects testimonies and pieces of evidence
and files them with the record based on their relevance to the case.
● The Magistrate may throw aside any baseless or irrelevant testimonies and pieces of
evidence as he sees fit and orders the re-examination of any witness as seen necessary for
the service of justice.

Record of evidence

● All evidence brought before the court that holds relevance to the case and can link the
accused to the offence committed beyond a reasonable doubt or any evidence which can get
him acquitted is filed with the record by the Magistrate.
● Recorded evidence is secured away from parties that may be interested in tampering with
 them to gain the upper hand and prevent the application of justice.

Evidence for defence

● The defence has the opportunity to present his side of the case and defend himself against
the accusations of the prosecution, as mentioned under Section 247.
● A written statement may be put forwarded and the Magistrate shall record it.
● The accused can issue an application requesting the Magistrate to summon witnesses or the
production of any document or thing with relevance to the case.
● And the Magistrate must issue such summons unless he feels they are baseless, irrelevant
and done for the purpose of vexation and delay of the delivery of justice.
● The reasons for rejection of application must be recorded in writing by the Magistrate.
● Any witness that has already been cross-examined by the accused or had the opportunity to
be cross-examined by the accused cannot be summoned again unless the Magistrate deems
it necessary for the delivery of justice.

WARRANT CASES

INTRODUCTION
● Warrant cases means the cases which are a more serious offence that is punishable with
death, life imprisonment or imprisonment for a term exceeding two years.
● The trials of warrant cases are conducted by the Court of Session or by Magistrate.
● If the offence is more serious then it is triable by the Court of Sessions, whereas if the offence
is a less serious warrant case then it is triable by the Magistrate.
● Trial of warrant cases begins either by the filing of FIR in a police station by filing a
complaint before a Magistrate.
● Divided into two types
○ Cases instituted on a police report
○ Cases instituted otherwise of a police report

Trial of Warrant Cases by Magistrate Where Cases Instituted On a Police Report

● Section 207:
○ Before the trial, the Magistrate assure that accused has been supplied with copies of
FIR, Police report and the statement recorded by police from the witnesses and all
other necessary documents that stated under Section 207CrPC.

● Section 238: Compliance with section 207

○ In any warrant case instituted on a police report, when the accused appears or is
brought before a magistrate for the trial, the magistrate shall satisfy himself that he
has complied with the provisions of section 207 (supply the copy of police report
and other related documents to the accused).
○ A copy of the police report and other documents relevant to the case should be
 supplied to any person or persons who appears or is brought before a magistrate at the
commencement of the trial.

● Section 239: When accused shall be discharged

○ This section should be read with section 240. It is the duty of the court to frame the
charges, and therefore the court must consider the matter. This section says that the
magistrate has to record his reasons for discharging the accused.

○ State of Himachal Pradesh vs. Krishan Lal, 1987

■ In this case, the Hon’ble Supreme Court held that there was sufficient
material on record, and the judge had found that the prima facie case has
been made out. But his successor judge came to the conclusion on the same
material that no charge could be made and hence passed an order of

discharge. It was held by the Supreme Court that no order of discharge could be
passed by the successor.

● Section 240: Framing of charge

○ Section 240 not only authorises the magistrate to consider the police report and the
document sent with it under section 173 but to examine the accused if he thinks fit.
○ According to clause 2 of this section, the charge shall then be read and explained
to the accused, and he shall be asked whether he pleads guilty of the offence charged or
claim to be tried.
○ In the case of Lt. Col. S.K. Kashyap V. The State Of Rajasthan, 1971, the
accused files an appeal challenging the authority of the special judge appointed to hear
the case. The appeal is failed and dismissed and the case proceedings are continued.

● Section 241: Conviction on plea of guilty

○ After framing the charge if the accused pleads guilty, then the magistrate shall record
the plea and convict him according to his discretion.
● Section 242: Evidence for prosecution
○ If the accused does not plead guilty, then the magistrate does not convict him, and
the magistrate shall fix a date for the examination of witnesses.
○ The proviso of this section says that the magistrate will supply in advance the
statement of witnesses recorded during the investigation by the police.
○ According to clause 2, the magistrate may summon to the witnesses to attend the
court or to produce any document, on the application of the prosecution.
○ According to clause 3, the magistrate shall proceed and may permit the cross-
examination of any witness.
○ The prosecution can summon witnesses and present other evidence in order to prove
the offence and link it to the offender.
○ This process of proving an accused individual guilty by examining witnesses is
called examination in chief.
○ The Magistrate has the power to summon any person as a witness and order him to
produce any document.
○ State vs Suwa, 1961 is a case where the orders of the Magistrate to acquit the accused
were set aside and a retrial was ordered by sending the case to a District-Magistrate
 who sent them for a trial to a Magistrate other than the one that tried the case
originally.

● Section 243: Evidence for defence

○ The magistrate shall call the accused to enter in his defence and produce evidence
and will allow for cross-examination.
○ The accused enters upon the defence and produce the evidence and if the accused
puts in a written form, the Magistrate file it to record.

○ In Rasik Behrj v. State of U.P, it was held that after the examination the accused
may call for entering the defence and produce the evidence and it is considering as
a right of the accused. The Magistrate has to give a reasonable opportunity to the
accused to produce evidence.

● Section 248: Acquittal or conviction

○ The trial ends either in conviction or acquittal of the accused.
● Section 249: Absence of complainant
○ If the complainant is absent on the day fixed for the hearing of the case, the
magistrate may in his discretion discharge the accused if-
■ I. The offence is compoundable.
■ II. The offence is non-cognizable.
■ III. The proceedings have been instituted on the complaint.
■ IV. The charge has not been framed.
○ All of the above elements are necessary.
○ Under this section, the magistrate has discretion. He may discharge the accused or
may proceed with the case. It is done by the magistrate before the charge has been
framed. After the framing of charge, the magistrate cannot discharge the accused
due to default of appearance by the complainant.

● Death of complainant in trial

○ Where in the course of the trial for different defamation the complainant dies, the
magistrate need not discharge the accused but can continue with the trial.
○ Note: Where a complaint is dismissed on default, there is no bar for the institution
of second complaint for the same offence.

● Section 250: Compensation for accused without reasonable cause

○ The person liable to pay compensation is a person on whose complaint or
information the accusation is made. Here, a person includes a juristic person also.
○ Compensation is awarded to the person who has suffered from the accusation and
not to his relatives. Before awarding compensation, the magistrate shall not only
record but also consider any objection which the complainant or informant raised
against the direction. The provisions are imperative (of vital importance) in nature
and must be complied with.

Trial of Warrant Cases Instituted Otherwise Than On a Police Report

● Section 244: Evidence for prosecution
 ○ When a warrant case is instituted otherwise than on a police report, the accused
appears or is brought before a magistrate; the magistrate shall proceed for evidence
for the prosecution and summon the witnesses or document on the application of the
prosecution.

● Section 245: When accused shall be discharged

○ The discharge order can be passed when the magistrate finds that “no case has been
made out.”
○ Section 245 of CrPC states that the accused shall be discharged by the Magistrate if
no case has been made out against him by the prosecution, which if unchallenged
would warrant his conviction.
○ And nothing can prevent the Magistrate from discharging the accused at any
previous stage if the accusations presented by the prosecution is considered baseless by
the Magistrate.

● Section 246: Procedure where accused is not discharged

○ If the magistrate is satisfied, then he can frame the charge and proceed further. The
charge shall be read and explained to the accused, and he shall be asked whether he
pleads guilty or not or has any defence to make.
○ Section 246(2) states that the charge against the accused should be read and
explained to him, and he shall be asked whether he wishes to plead guilty to the charges
or contest the said charges by proceeding with a trial.
○ According to clause 3, if the accused pleads guilty, the magistrate shall, according
to his discretion, convict the accused. If the accused does not plead guilty, then the
magistrate will move forward.
○ In the case of Ratilal Bhanji Mithani vs The State Of Maharashtra, 1978, it was
determined that there were reasonable grounds to believe the accused had committed the
offence, and the Magistrate began the trial proceedings by rejecting the dismissal of the
case under Section 246(1).

● Section 247: Evidence for defence

○ The accused will be called to enter upon his defence and to produce evidence.
● Conclusion of trial same as the trial which is conducted by the magistrate in warrant cases,
where case instituted on the police report (section 248 to 250).
● Section 248: Acquittal or conviction
○ The trial ends either in conviction or acquittal of the accused.
● Section 249: Absence of complainant
○ If the complainant is absent on the day fixed for the hearing of the case, the
magistrate may in his discretion discharge the accused if-
■ I. The offence is compoundable.
■ II. The offence is non-cognizable.
■ III. The proceedings have been instituted on the complaint.
■ IV. The charge has not been framed.
○ All of the above elements are necessary.
○ Under this section, the magistrate has discretion. He may discharge the accused or
may proceed with the case. It is done by the magistrate before the charge has been
 framed. After the framing of charge, the magistrate cannot discharge the accused
due to default of appearance by the complainant.

● Death of complainant in trial

○ Where in the course of the trial for different defamation the complainant dies, the
magistrate need not discharge the accused but can continue with the trial.
○ Note: Where a complaint is dismissed on default, there is no bar for the institution
of second complaint for the same offence.

● Section 250: Compensation for accused without reasonable cause

○ The person liable to pay compensation is a person on whose complaint or
information the accusation is made. Here, a person includes a juristic person also.
○ Compensation is awarded to the person who has suffered from the accusation and
not to his relatives.
○ Before awarding compensation, the magistrate shall not only record but also
consider any objection which the complainant or informant raised against the
direction. The provisions are imperative (of vital importance) in nature and must be
complied with.
○ If there is more than one accused person, the Magistrate shall order the
complainant to pay compensation to all the accused. This can be observed in the case of
Valli Mitha V. Unknown, 1919.
○ In the case of Abdur Rahim V. Syed Abu Mahomed Barkat Ali Shah, 1927, it
was declared by the Court that the amount of compensation will only be paid to the
accused and not his relatives or any other person.
○ Section 250(6) states that a complainant or informant ordered by a Magistrate of
second class to pay compensation exceeding one hundred rupees under Sub-section (2)
can be appealed as seen in the case of A.M. Pereira vs D.P. Demello, 1924.

SUMMONS CASES

INTRODUCTION
● “Summon case” means a case relating to an offence, not being a warrant case.--
Section2(w)
● Summon cases can be referred from the definition of the warrant case i.e., offences
punishable with death, imprisonment for life and imprisonment for the terms exceeding two
years called as warrant case.
● So summon cases are those in which punishment will not exceed imprisonment for two
years.
● The procedure to deal with such matter provided in section 251 to 259 of Cr.P.C, 1973 which
is not as serious/formal as other trials (Session trial, warrant case instituted on the police
report and warrant cases instituted otherwise than on police report).
● Summons is a document that orders a person to whom it was sent to appear before the
Court and answer the Magistrate on the complaint made against him. And it is issued by the
Magistrate under Section 204(1) (a) of Cr.P.C,1973.
Summons case into a warrant case
● A summons case can be converted into a warrant case however a warrant case cannot be
transferred into a summons case.
● When the charge of both cases is considered, the warrant case is preferred as it is the more
serious offence compared to summons case.
● In the warrant case, it is punishable with death and life imprisonment and imprisonment
exceeding two years, in case of summons case it is a case relating to offence and not being
a warrant case.

PROCEDURE FOR TRIAL IN SUMMONS CASE

● Section 251 – Explaining the substance of allegation to the accused
○ When an accused appears before the court, the allegations made against him shall
be explained to him. But under this section, it is not mandatory to frame the charge
against him.
○ Under section 251 courts shall ask the accused whether the accused pleads guilty,
and section 252 and 253 needs to comply for conviction on such plea of guilty.

○ In Nayan Ram v. Prasanna Kumar it is held that in case if the accusation is not
stated to the accused this is remediable under Section 465 of the Code.
● Section 252 – The Conviction On Plea of Guilty
○ After explaining the allegations of the offence to the accused, if he pleads guilty then
the Magistrate can record the exact words of the accused and may convict him for
further proceedings.
○ In case the accused does not accept the plea of guilty, Magistrate can proceed with
Section 254.
○ In case the accused pleads guilty, the answer is affirmative that in accordance with
law the court will record the plea in the exact words of the accused on the basis of
which the accused can be convicted on the Court’s discretion.
○ If not affirmative then the court needs to proceed further with Section 254.
○ If the accused pleads guilty, and the charges against him do not constitute any
offence then mere plea will not amount to the conviction of the accused.
○ As the magistrate has the discretion to convict on the plea or not, if on plea the
accused is convicted then the magistrate shall proceed according to section 360
otherwise hear the accused on the question of sentence and sentence him according
to law. If the plea of guilty is not accepted then the magistrate shall proceed
according to section 254.

● Section 253- The Absence of Accused

○ If the accused before appearing the Magistrate has to plead guilty, he can send a
letter by post or messenger and the letter must contain the plea of the accused also
the fine amount specified in the summons.
○ The Magistrate at his discretion convict the accused and order him to pay the fine,
 or if a lawyer is presented for the accused before the Magistrate and pleads guilty on
behalf of accused, the Magistrate can record the words used by the lawyer and move to
further proceedings.

● Section 254- The Procedure When The Accused Is Not Convicted On Plea
○ If the accused is not convicted on plea under Section 252 and Section 253, then for
prosecution and the defence part Section 254 is provided.
○ The magistrate after hearing the accused, he calls the prosecution to open the case
by presenting all the facts, circumstances related to the case and the evidence. The
Magistrate on the application of prosecution issue summons to the witnesses to
appear before the Court or to present any documents relating to the facts of the case.
○ The Magistrate takes all the evidence and may be produced in support of the
prosecution.
○ Under Section 313, the Court conducts an examination of the accused after taking
the evidence of the Prosecution.

○ The Magistrate allow the accused to present the evidence and take all evidence as
he produced in his defence. On the application of the accused the Magistrate may
issue summons to witnesses to appear before the Court or to present any documents.

● Section 255- Acquittal or Conviction

○ The Magistrate after taking the entire evidence produced in the case, finds the
accused is not guilty, he can order acquittal and if the Magistrate finds the accused
guilty, he is required to pass sentence according to the law.
○ However, considering the nature or circumstances of the offence and the character
of the offender, the Magistrate can order for admonition or probation of good conduct
under Section 360 or Section 325 of the Code.

● Section 256 – Death or Non-Appearance of the Complainant

○ If the complainant not appeared before the court on the date fixed for appearance,
the Court can acquit the accused unless the Court has reason to adjourn the case to
another day. In sub section[1] of 256, the complainant not appeared before the Court
due to the death of complainant, the defendant can be acquitted.
○ In S.Rama Krishna v. Rami Reddy it was held by the Supreme Court that in case
the representative of the dead complainant not appeared for 15days then the defendant
can be acquitted.

● Section 257- The Withdrawal of Complaint

○ The complainant can withdraw the case before the final judgement by satisfying the
Magistrate that there is no ground for continuing the complaint on the accused and
if there is more than one accused, against all, the Magistrate allows the Complainant
to withdraw the case.

● Section 258- Discharge of Summons Case

○ Under Section258, a Magistrate of First Class with the previous sanction of the Chief
Judicial Magistrate, or any other Judicial Magistrate for the reasons recorded can
stop the proceedings and if the proceeding is stopped after the evidence recorded
 then it is a judgement of acquittal, if the proceeding is stopped before the record of
evidence then it is released with the discharge of the case.
○ In Arvind Kejriwal and Others Case , held that the summons cases cannot be
discharged by the Magistrate as there is no such provision in the law and the person can
approach the High Court under Section 482 of Cr.P.C.
○ In R.K. Aggarwal v .Brig Madan Lal Nassa & Anr it was held that there is no
proviso of discharge of the summons case hence it can be acquittal or conviction of the
accused based on the complaint

Procedure if the accused not convicted on plea

● Section 254 provides about both prosecution and defence case if the accused not convicted
on plea under section 252 and 253.

Prosecution case
● The magistrate will hear the accused and take all the evidence. In the hearing, the prosecution
will be given chance to open its case by putting facts and circumstances which constitute the
case and by revealing the evidence which he relied upon to prove the case.
● The magistrate on the application of the prosecution, serve summon to any witness to
attend and to produce any document or thing.
● The magistrate will prepare the memorandum of the evidence according to section 274.
● Same as other trials in summon cases also the magistrate will comply with section 279 i.e.,
interpretation of evidence to the accused and 280 i.e., recording of the demeanor of the
witnesses.

Hearing of the defence: – (Defence Case)

● After the prosecution evidence under 254 and examination of defence under section 313, in
the continuance of this, the court will proceed with the defence hearing under section 254(1).
● In the hearing of the defence means accused will be asked for accused say against the
prosecution evidence.
● Failure of hearing of the accused in any case will amount to the fundamental error in the
criminal trial and it can not be cured under section 465.
● Evidence produced by the accused will be recorded in the same manner as in case of
prosecution under section 274, 279, 280.
● After the submission of the evidence of the defence, he will be allowed to submit his
arguments under section 314.

SUMMARY TRIAL

INTRODUCTION
● Conducted by senior and experienced judicial officers
● For petty cases
 ● All offences cannot be made triable summarily
● For serious or complicated cases it would not be just and proper to have summary trials
● Sec.260(1) → to be conducted by CJM, MM, JMFC to try all or any offences mentioned
below:

○ Offences which are not punishable with death, imprisonment for life or
imprisonment for more than two years.
○ The offence of theft -- value of the stolen property is not more than 2000 rupees
→ Sec. 378-81 IPC
○ An offence where a person has received or retained a stolen property worth not
more than 2000 rupees → Sec. 411 IPC
○ An offence where a person has assisted in concealing or disposing of stolen
property, not worth more than 2000 rupees → Sec.414 IPC
○ Offences covered under Section 454 and Section 456 of the Indian Penal Code,
1860
○ If a person insults with the intention of provoking a breach of peace under Section
504 of the Indian Penal Code, 1860
○ In the case of criminal intimidation punishable with imprisonment up to two years
or fine or both, under Section 506 of the Indian Penal Code, 1860.
○ The abetment of any of the above-mentioned offences
○ If an attempt is made to commit any of the aforementioned offences and if such an
attempt is a punishable offence
○ If an act is committed which constitutes an offence, for which a complaint can be
filed under Section 20 of the Cattle Trespass Act, 1871

PROCEDURE
● Summons case procedure subject to the provisions of Sec.262 to 265
○ As the maximum punishment that can be awarded in a summary trial being only 3
months imprisonment as provided by section 262 (2), and as the offences are triable
only by specially empowered magistrate and other senior magistrate it has been
considered expedient to follow the summons case procedure.

○ Summons case procedure:

■ file an FIR or a complaint.
■ This is investigated upon by the police and evidence is collected.

■ At the end of the investigation, a charge sheet is filed by the police.

■ The accused person is then taken before the Magistrate who orally reads the
particulars of the offences to the accused.
■ In summons and summary trials, a formal charge is not written down.
■ The Magistrate after stating the particulars of the offence committed asks
the accused if he pleads guilty or not.
■ If the accused person pleads guilty, the Magistrate makes a record of the
statement of the accused and then proceeds for conviction.
■ If the accused does not plead guilty, the trial begins.
■ The prosecution and the defence are given an equal opportunity to put their
case forward.
■ The Judge may then decide the acquittal or the conviction of the accused
 ● Punishment awardable
○ No sentence of imprisonment for a term exceeding 3 months shall be passed in case
of conviction and there is no limit on the fine → Sec.262(2)
● Summary trial to be given up in favour of regular trial
○ If the Magistrate feels at any point of the process of trial, that the nature of the case
is not fit to be tried summarily then he has the power to recall any witness who may
have been examined → Sec.260(2)
● Record of summary Trial (Sec.263)
○ The serial number of the case;
○ The date when the offence was committed;
○ The date when the report or the complaint was filed;
○ The name of the complainant, if any;
○ The name, residence and parents’ name of the accused person;
○ The offence about which the complaint has been made and any proven offence (if it
exists);
○ The value of the property regarding which the offence has been committed, if the
case comes under Section 260(1) (ii) or Section 260(1) (iii) or Section 260(1) (iv) of
the Code;
○ The plea of the accused person and his examination, if any;
○ The finding of the Court;
○ The sentence or any other final order passed by the Court;
○ The date when the proceedings ended.
● Judgement
○ In Every case tried summarily in which the accused does not pead guilty the
magistrate shall record the substance of the evidence and the judgement containing
a brief statement of the reasons for the findings → Sec.264.
● Shivaji Sampat Jagtap vs. Rajan Hiralal Arora, it was held by the Bombay High Court that
if the procedure mentioned in Section 263 and Section 264 of the Code has not been

particularly followed, then the succeeding Magistrate does not need to hold a trial de novo.

DISTINCTION OF SUMMARY TRIALS WITH OTHER TRIALS

● Summary trials are less complicated in comparison to warrants and summons trials.
● The procedure followed in summary cases is shorter and less time consuming than other
trials.
● Summary trials deal with cases that consist of minor offences of simple nature as opposed
to serious cases which are tried in summons/warrant trials.
● The statements of witnesses are compiled in a brief and general manner in summary trials.
Focus is placed on recording the substance of their depositions. In other trials, the depositions
of all the witnesses are recorded with minute intricacy.
● The Magistrate does not have to frame formal charges against the accused person in
summary trials. In other trials, a formal charge has to be written down.
● In the case of summary trials, it is not essential to record the evidence in its entirety. A brief
outline works. In other trials, it is crucial that the entire evidence is recorded completely.

PLEA BARGAINING
CHAPTER XXIA – PLEA BARGAINING
 Courtesy: Anieta Tom for helping with her notes :)

MEANING
● Plea bargaining is a pretrial negotiation between the accused and the prosecution where the
accused agrees to plead guilty in exchange for certain concessions by the prosecution.
● It is a bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return
drop more serious charges.
● It is not available for all types of crime e.g. a person cannot claim plea bargaining after
committing heinous crimes or for the crimes which are punishable with death or life
imprisonment.
● Section 265A to 265L, Chapter XXIA of the Criminal Procedure Code deals with the
concept of Plea Bargaining. It was inserted into the Criminal Law (Amendment) Act, 2005. It
allows plea bargaining for cases:
○ Where the maximum punishment is imprisonment for 7 years;
○ Where the offenses don’t affect the socio-economic condition of the country;
○ When the offenses are not committed against a woman or a child below 14 are
excluded
● 154th Law Commission Report- 1st to recommend Plea bargaining □ 2003 Amendment Bill
introduced □ came into force 2006

PROVISIONS
● Section 265-A (Application of Chapter)
○ The plea bargaining shall be available to the accused who is charged with any
offense other than offenses punishable with death or imprisonment or for life or of
an imprisonment for a term exceeding to seven years.
○ Section 265 A (2) of the Code gives the power to notify the offenses to the
Central Government.
○ The Central Government issued Notification No. SO1042 (II) dated 11-7/2006
specifying the offenses affecting the socio-economic condition of the country.
● Section 265-B (Application for Plea Bargaining)
○ A person accused of an offense may file the application of plea bargaining in trails
which are pending.
○ The application for plea bargaining is to be filed by the accused containing brief
details about the case relating to which such application is filed. It includes the

offences to which the case relates and shall be accompanied by an affidavit sworn by the
accused stating therein that he has voluntarily preferred the application, the plea
bargaining the nature and extent of the punishment provided under the law for the
offence, the plea bargaining in his case that he has not previously been convicted by a
court in a case in which he had been charged with the same offence.
○ The court will thereafter issue the notice to the public prosecutor concerned,
investigating officer of the case, the victim of the case and the accused of the date fixed
for the plea bargaining.
○ When the parties appear, the court shall examine the accused in-camera wherein
 the other parties in the case shall not be present, with the motive to satisfy itself that the
accused has filed the application voluntarily.

● Section 265-C (Guidelines for Mutually satisfactory disposition)

○ It lays down the procedure to be followed by the court in mutually satisfactory
disposition. In a case instituted on a police report, the court shall issue the notice to
the public prosecutor concerned, investigating officer of the case, and the victim of
the case and the accused to participate in the meeting to work out a satisfactory
disposition of the case. In a complaint case, the Court shall issue a notice to the
accused and the victim of the case.
○ If in a meeting under section 265-C, a satisfactory disposition of the case has
been worked out, the report of such disposition is to be prepared by the court. It shall be
signed by the presiding officer of the Courts and all other persons who participated in
the meeting.
○ If no such disposition has been worked out, the Court shall record such
observation and proceed further in accordance with the provisions of this Code from the
stage the application under sub-section (1) of section 265-B has been filed in such case.

● Section 265-D (Report of the mutually satisfactory disposition)

○ This provision talks about the preparation of the report of mutually satisfactory
disposition and submission of the same. Two situations may arise here namely

● Section 265-E (Disposal of the case)

○ prescribes the procedure to be followed in disposing of the cases when a satisfactory
disposition of the case is worked out. After completion of proceedings under Section
265-D, by preparing a report signed by the presiding officer of the Court and parties
in the meeting, the Court has to hear the parties on the quantum of the punishment
or accused entitlement of release on probation of good conduct or after admonition.
Court can either release the accused on probation under the provisions of Section
360 of the Code or under the Probation of Offenders Act, 1958 or under any other
legal provisions in force or punish the accused, passing the sentence.

○ While punishing the accused, the Court, at its discretion, can pass sentence of
minimum punishment, if the law provides such minimum punishment for the
offenses committed by the accused or if such minimum punishment is not provided,
can pass a sentence of one-fourth of the punishment provided for such offense. ”

● Section 265-F (Judgment of the Court)

○ talks about the pronouncement of judgment in terms of mutually satisfactory
disposition.

● Section 265-G (Finality of Judgment)

○ says that no appeal shall be against such judgment but Special Leave Petition
(Article 136) or writ petition (under Article 226 or 227) can be filed.

● Section 265-H (Power of the Court in Plea Bargaining)

 ○ talks about the powers of the court in plea bargaining. These powers include powers
in respect of bail, the trial of offenses and other matters relating to the disposal of a
case in such court under Criminal Procedure Code.

● Section 265-I (Period of detention undergone by the accused to be set off against the
sentence of imprisonment)
○ says that Section 428 of CrPC is applicable for setting off the period of detention
undergone by the accused against the sentence of imprisonment imposed under this
chapter.

● 265-J (Savings)
○ talks about the provisions of the chapter which shall have effect notwithstanding
anything inconsistent therewith contained in any other provisions of the Code and
nothing in such other provisions shall be construed to contain the meaning of any
provision of chapter XXI-A

● Section 265-K (Statement of the accused to be used)

○ specifies that the statements or facts stated by the accused in an application under
section 265-B shall not be used for any other purpose except for the purpose as
mentioned in the chapter.

● Section 265-L (Non-application of the chapter)

○ makes it clear that this chapter will not be applicable in case of any juvenile or child
as defined in Section 2(k) of Juvenile Justice (Care and Protection of Children) Act,
2000.

TYPES OF PLEA BARGAINING

● Sentence Bargaining
○ In this type of bargaining the main motive is to get a lesser sentence.
○ In Sentence bargaining, the defendant agrees to plead guilty to the stated charge and
in return, he bargains for a lighter sentence.

● Charge Bargaining

○ This kind of plea bargaining happens for getting less severe charges.
○ This the most common form of plea bargaining in criminal cases.
○ Here the defendant agrees to plead guilty to a lesser charge in consideration of
dismissing greater charges.
○ E.g. Pleading for manslaughter for dropping the charges of murder.
● Fact Bargaining
○ This is generally not used in courts because it is alleged to be against the Criminal
Justice System.
○ It occurs when a defendant agrees to stipulate certain facts in order to prevent other
facts from being introduced into evidence.
JUDICIAL PRONOUNCEMENTS
● In State of Uttar Pradesh vs Chandrika (2000), the Apex Court disparaged the concept of
plea bargaining and held this practice as unconstitutional and illegal. Here the Hon’ble Court
was of the view that on the plea bargaining Court cannot basis of disposing of criminal cases.
The case has to be decided on the merit. In furtherance of the same, court said that if the
accused confesses his guilt, he must be given the appropriate sentence as required by the
law.
● In the State Of Gujarat vs Natwar Harchandji Thakor (2005), the Court acknowledged
the importance of plea bargaining and said that every “plea of guilty” which is construed to be a
part of the statutory process in the criminal trial, should not be understood as a “plea bargaining”
ipso facto. It is a matter of matter and has to be decided on a case to case basis. Considering the
dynamic nature of law and society, the court said that the very object of the law is to provide an
easy, cheap and expeditious justice by resolving disputes.

JUDGEMENT

● The judgment is the final reasoned decision of the court as to the guilt or innocence of the
accused.
● Where the accused is found guilty, the judgment would also include an order requiring the
accused to undergo the prescribed punishment or treatment.

FORMS AND CONTENT OF JUDGEMENT

Section 354 of the CrPC prescribes the following:
i. The judgment shall be in the language of the Court. The language
of the Court is prescribed by the State Government as stated in S. 272.
ii. The points of determination and the reason for the decision.
a. The statement of facts for which the accused is charged.
b. Analysis and appraisal of the evidence regarding the proof of facts.(State of UP v.
Jagdish Singh)
c. The reasons for accepting and rejecting the 2 viewpoints must be clearly mentioned.
(Badri v. State of Rajasthan)
iii. The offence must be specified with the section of the law for
which the accused is convicted and punished.
a. In a case where there is a doubt with respect to the section under which the offence
falls or when the offence falls under both provisions, the Court shall make an express
note on the same and pass the judgment in the alternative as well.
iv. If the judgment is of acquittal:
a. The offence for which the accused is acquitted, and
b. Direct that he be set liberty shall be expressly stated.

2. The accused shall not be released if he is acquitted on the grounds that he is insane and the judgment
shall necessarily state whether the alleged offence was committed by the accused.
 3. When the conviction is for an offence punishable with death or, with imprisonment for life or
imprisonment for a term of years, the judgement shall state the reasons for the sentence awarded
and, in the case of sentence of death, the special reasons for such sentence.

4. When the conviction is for an offence punishable with imprisonment for a term of one year or more,
but the Court imposes a sentence of imprisonment for a term of less than three months, it shall
record its reasons for awarding such sentence.

5. However, if the sentence is one of imprisonment till the rising of the Court or the case was tried
summarily under the provisions of this Code no reasons need to be stated.

6. When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till
he is dead.

7. Section 355 states that the judgment given by a Metropolitan Magistrate may be in an abridged
form consisting of the following particulars:
i. The serial number of the case;
ii. The date of commission of the offence;
iii. The name of the complainant, if any;
iv. The name of the accused person, his parentage and his residence;
v. The offence complained of or proved;
vi. The plea of the accused or his examination;
vii. The final order;
viii. The date of the order;
ix. In all cases wherein an appeal lies from such an order a brief paragraph
stating the reasons for the judgment;
The judgment in a summary trial may also be given in the similar abridged form as stated in Sections 263
and 264

Language and content of Judgement

● Every judgment shall be written in the language of the court; and according to Section 272,
the language of the court is determined by the State Government.
● Every judgment shall contain the point or points for determination, the decision thereon and
the reasons for the decision.
● The judgment should indicate a careful analysis and appraisal of the evidence while reaching
the conclusions regarding the proof of the facts.
● Every judgment shall specify the offence
● If the judgment is one of acquittal, it shall state the offence of which the accused is acquitted
and direct that he be set at liberty.
● However, the accused shall not be so released if his acquittal is on the ground that he was
insane at the time at which the offence was alleged to have been committed by him.
● In such a case, the judgment shall specifically state whether the act constituting the alleged
offence was committed by the accused or not. [See, S. 334] Section 335 then provides for
the detention in safe custody of persons so acquitted on the ground of insanity.
● Sections 336, 338, 339 deal with the powers of officers in respect of the persons so
 detained and the procedure for release of detained persons found fit for release. These sections
have not been discussed here.
● It has been held in Yakub Abdul Razak Memon v. State of Maharashtra that a
conviction order is not a “judgment” and that a judgment is complete only after the sentence is
determined.

Judgement In Abridged Forms

● According to Section 355 the judgment given by a Metropolitan Magistrate shall be in an

abridged form giving the following particulars only:
○ (a) the serial number of the case;
○ (b) the date of the commission of the offence;
○ (c) the name of the complainant if any;

○ (d) the name of the accused person, and his parentage and residence;
○ (e) the offence complained of or proved;
○ (f) the plea of the accused and his examination (if any);
○ (g) the final order;
○ (h) the date of such order; and
○ (i) in all cases in which an appeal lies from the final order, a brief statement of
reasons for the decision.
● The judgment given in a summary trial is also to be recorded in a similar abridged form as
prescribed by Sections 263–264.

POST CONVICTION ORDERS

● the court may instead of sentencing the accused person to any punishment, release him after
admonition or on probation of good conduct under Section 360 of the Code or under the
provisions of the Probation of Offenders Act, 1958
● increasing emphasis on the reformation and rehabilitation of the offender as a useful and
self-reliant member of society without subjecting him to the deleterious effects of jail life.
● Section 360
○ Release on probation of good conduct
○ Release after admonition.— Having regard to the age, character, antecedents or
physical or mental condition of the offender and to the trivial nature of the offence
or any extenuating circumstances under which the offence was committed, the court
may, after convicting the accused person, release him after due admonition.

NO IMPRISONMENT IN CASE OF YOUNG OFFENDERS

● post-conviction orders has been restricted to some extent in favour of young offenders below
21 shall not sentence him to imprisonment without satisfying itself that it would not be
desirable to release the offender after admonition or on probation of good conduct;
● Section 361 clearly shows that the courts while dealing with the convicted persons are to
adopt, as a matter of policy, non-punitive measures for the reformation and rehabilitation of the
offenders, and as far as possible, to avoid awarding deterrent and retributive punishments.
JUDICIAL DISCRETION IN SENTENCING
● If the convicted person is not released after admonition or on probation of good conduct as
mentioned above, the court shall (in case of serious  280 offences after hearing him on the
question of sentence) pass sentence upon him according to law.

● There are different kinds of punishments provided by the IPC and other laws, such as, death,
imprisonment for life, imprisonment (rigorous or simple), forfeiture of property, fine, etc.
● A proper sentence is the amalgam of many factors
● The measure of punishment in a given case must depend upon the atrocity of the crime, the
conduct of the criminal and the defenceless and unprotected state of the victim.
● The Code no doubt provides by Sections 235(2) and 248(2) that if the accused, in a trial
before a Sessions Court or in a trial of warrant case by a Magistrate, is found guilty, the court
or Magistrate shall “hear” the accused on the question of sentence and then pass sentence on
him according to law.
○ The word “hear” has been used to give an opportunity to the accused to place
before the court, the various circumstances having a bearing on the question of sentence.

DECISIONS AS TO SPECIFIC PUNISHMENT

● (1) Sentence to death.—
○ Section 354(3) requires that, when the conviction is for an offence punishable with
death or, in the alternative, with imprisonment for life or imprisonment for a term of
years, the judgment shall state the reasons for the sentence awarded, and in the case
of sentence of death, the special reasons for such sentence. Further, when any person
is sentenced to death, the sentence shall direct that he be hanged by the neck till he
is dead. [S. 354(5)]
○ trial court is required to make a reference to the High Court, and the sentence is
not to be executed unless and until it is confirmed by the High Court. [S. 366(1)]
○ The reference case is to be heard by the Bench of judges and the confirmation of the
death sentence is to be made by a majority constituted by two or more judges. [See,
Ss. 369 and 370 read with S. 392]
● (2) Sentence of imprisonment.
○ Generally, the penal laws prescribe the maximum term of imprisonment awardable
in respect of an offence.
○ The law does not, except in very exceptional circumstances, prescribe the minimum
term of imprisonment that the court must, in the least, award for an offence.
○ When the conviction is for an offence punishable with imprisonment for a term of
one year or more, but the Court imposes a sentence of imprisonment for a term of less
than three months, it shall record its reasons for awarding such sentence, unless the
sentence is one of imprisonment till the rising of the Court or unless the case was tried
summarily under the provisions of this Code.

○ When an accused person is convicted of several offences at one trial, the total
quantum of punishment for all such offences shall be determined according to the
provisions of Section 31.
■ Section 31 is held to leave full discretion with the court to order sentences
 for two or more offences in one trial to run consecutively or concurrently, having
regard to the nature of offences and attendant aggravating and mitigating
circumstances in O.M. Cherian v. State of Kerala
● Sentence of fine.
○ Usually fines are prescribed as punishments for offences which are not of serious
type. In case of some offences, it is prescribed as an alternative to or in addition to
any other punishment prescribed for the offence.
● Precautionary and preventive orders
○ (1) Order requiring habitual offenders to notify their whereabouts.— In order to
prevent the commission of certain offences, provisions have been made to enable
the authorities to keep a watch on the whereabouts of persons indulging in such
crimes.
○ (2) Preventive measure against the risk of breach of peace.— When a Sessions
Court or a Court of Magistrate of the first class convicts a person of an offence involving
breach of the peace,28 the court may, in  286 addition to the sentence that it may award
for the offence, order the offender to give security for keeping the peace for a specified
period not exceeding three years. [See, S. 106]

COMPENSATION AND COSTS

● Guilty person to compensate the victim and to pay the costs of the prosecution.
○ Section 357 empowers the court to order the convicted person to pay compensation
and costs and thereby combines the function of the civil court (to pay compensation
for wrongs) with that of the criminal court (of punishing the offender). This is just
and expedient to give speedy and less expensive redress to the person who suffered
at the hands of the offender.
○ When a court imposes a sentence, of which fine does not form a part, the court
may, when passing the judgment, order the accused person to pay, by way of
compensation, such amount as may be specified in the order to the person who has
suffered any loss or injury by reason of the act for which the accused person has been so
sentenced. [S. 357(3)]
○ In fixing the amount of fine or compensation, the court should take into account
the nature of the crime, the injury suffered, the justness of the claim for compensation,
the capacity of the accused to pay and other relevant circumstances.
● Order to pay costs to the successful complainant

○ If in the trial of a non-cognizable offence upon a complaint the accused is convicted,

the court may, in addition to the sentence imposed upon the convicted accused, order
him to pay to the complainant, in whole or in part, the cost incurred by him in the
prosecution. The court may further order that in default of payment, the accused
shall suffer simple imprisonment for a period up to 30 days. [S. 359]
● Compensation for wrongful arrests.
○ Whenever any person causes a police officer to arrest another person, and if it
appears to the Magistrate by whom the case is heard that there was not sufficient
ground for causing such arrest, the Magistrate may order the person causing the
arrest to pay compensation (not exceeding ₹ 1000) to the person so arrested for his
loss of time and expenses in the matter. [S. 358(1)]
● Code envisages a scheme for paying compensation to the victims of crimes even when
 the prosecution of the accused does not take place. [S. 357-A]
● The Supreme Court has observed that it is the duty of the courts, on taking cognizance of a
criminal offence, to ascertain whether there is tangible material to show commission of
crime, whether the victim is identifiable and whether the victim of crime needs immediate
financial relief.

VICTIM COMPENSATION SCHEME (Section 357A)

1. Such a scheme was introduced in India in the CrPC by the Amendment of 2008 which takes effect
only in 2009.
2. Every State Government in co-ordination with the Central Government shall prepare a scheme for
providing funds for the purpose of compensation to the victim or his dependents who have suffered
loss or injury as a result of the crime and who require rehabilitation.
3. Whenever a recommendation is made by the Court for compensation, the District Legal Service
Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of
compensation to be awarded under the scheme.
4. If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded is not
adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has
to be rehabilitated, it may make recommendation for compensation.
5. Where the offender is not traced or identified, but the victim is identified, and where no trial takes
place, the victim or his dependents may make an application to the State or the District Legal
Services Authority for award of compensation.
6. On receipt of such recommendations or on the application by the victim or his dependants, the State
or the District Legal Services Authority shall, after due enquiry-award adequate compensation by
completing the enquiry within 2 months.
7. The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of
the victim, may:
i. order for immediate first-aid facility or medical benefits to be made
available free of cost on the certificate of
a. the police officer not below the rank of the officer in charge of the police station
or
b. a Magistrate of the area concerned, or
ii. any other interim relief.
8. In the case of Bhuperndar Singh v State of M.P. which was out come of quarrel between college
students where the Hon'ble Court although allowed the compounding of offence but did not forget
the cause of victim and granted the compensation of Rs 3000.
9. In the case of Rudal Shah v State of Bihar is the most celebrated case where the Hon'ble S.C.
directed the state to pay compensation of Rs 35,000 to Rudal Shah who was kept in jail for 14 years
even after his acquittal on the ground of insanity and held that it is violation of Article 21 done by
the State of Bihar.
10. In the case of Harikishan Singh is also of importance where the Hon'ble S.C. in light of Section
357 A observed that:

It is an important provision but courts a have seldom invoked it. Perhaps due to ignorance of the object of
it. It empowers the court to award compensation to victims while passing judgment of conviction. In
addition to conviction, the court may order the accused to pay some amount by way of compensation to
victim who has suffered by the action of accused. It may be noted that this power of courts to award
compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do
something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure
of responding appropriately to crime as well of reconciling the victim with the offender.

PRONOUNCEMENT OF JUDGEMENT
● Modes of pronouncing the judgment.
○ A judgment is the final decision of the court intimated to the parties and the world
at large by formal “pronouncement” or “delivery” in open court.
○ The judgment in every trial shall be pronounced in open court by the presiding
officer47 immediately after the close of the trial or at some subsequent time of which
notice shall be given to the parties
■ (a) by delivering the whole of the judgment; or
■ (b) by reading out the whole of the judgment; or
■ (c) by reading out the operative part of the judgment and explaining the
substance of the judgment to the accused. [S. 353(1)]
● presiding officer shall cause it to be taken down in shorthand, sign the transcript and every
page thereof as soon as it is made ready, and write on it the date of the delivery of the
judgment in open court. [S. 353(2)]
● Where the judgment or the operative part is read out under clause (b) or clause (c) above,
it shall be dated and signed by the presiding officer in open court. [S. 353(3)]
● The trial court is required to secure the attendance of the accused at the time of delivering a
judgment of conviction by which the accused is sentenced to a substantive sentence of
imprisonment. [See, S. 353(5) & (6)] However, in order to avoid delay in the disposal of the
case in which there are two or more accused persons, the court may pronounce the

judgment in the absence of any of the accused persons on the date on which judgment is to be
pronounced. [See, Proviso to S. 353(6)]
● Court not to alter judgment.
○ Save as otherwise provided, no court when it has signed its judgment or final order
disposing of a case, shall alter or review the same except to correct a clerical or
arithmetical error. [S. 362].

APPEAL, REVIEW, REVISION

·

APPEALS TO SUPERIOR COURTS

Part I: Appeals to the Supreme Court

According to Article 134 of the Constitution of India, the Supreme Court is entitled to hear cases brought
in the form of appeals from the decision of the High Court of the respective States in a criminal proceeding
conducted within the territories of India.

However, to exercise such power, the High Court from which appeal is intended must grant a certificate
under Article 134A stating that the appeal is allowed and that in the opinion of the court, the appeal
preferred is sufficient and has probative value. Criminal appeal from High Court arises in two
circumstances;

Moreover, any case that is not falling or coming under any of the two situations or circumstances
aforementioned or when the High Court refuses to give a certificate under Article 134A to appeal before
the Supreme Court, an appeal can also be under Article 136 after obtaining special leave from the Supreme
Court to appeal.

Part II: Appeals to the High Court

a. Appeal against Acquittal

It has been established that the power of the High Court is to reconsider a case when it comes before it for
appeal. In such a process, the court is entitled to reassess or review any evidentiary material brought before
it during the course of the ongoing proceedings.

It is said that when the appeal brought is against the acquittal of the accused, the court should go slow and
not reach to the final conclusion of his guilt without deliberations. It is a cardinal principle of criminal law
that a person is always presumed to be innocent unless he is proven to be guilty and the axiom is reinforced
when a court has already found a person innocent.

b) Appeals against Conviction

In Rama v. State of Rajasthan it was espied by the court that it is an ordinary belief or common parlance
that the High Court should reassess or reconvene any evidentiary material itself and should not let it be
examined by the Sessions Court in a revision or review. In this case, the appellant appealed before the High
Court against the conviction order of Court of Session but the apex court held that in the impugned judgment
of the High Court no information as to the number and detail of witnesses that were examined or the
evidence used was mentioned. In such circumstances, the appeal was allowed and conviction was set aside.

Part III: Appeals from Courts of Session

According to Section 381, an appeal from the order, judgment or sentence of the Chief Judicial Magistrate
or Chief Metropolitan Magistrate shall be heard by the Court of Sessions comprising of the Sessions Judge
or Additional Sessions Judge.

Section 381 of the Code of Criminal Procedure, 1973, admits no ambiguity as such, viewed in its proper
context and in totality it contemplates only two types of orders passed by Courts of Session viz. order
relating to the sentence of death and life imprisonment. Once these orders are confirmed or any other order
was passed thereon by the High Court, the Court of Session shall cause such order to be carried into effect.
The session’s court can do this by resorting to either option:

1. By issuing a warrant or
2. By taking such other steps as may be necessary
· APPEAL LIES IN THREE CIRCUMSTANCES & ITS PROCEDURE:

Firstly, where the accused is convicted of the offence and he is unsatisfied with the decision, he may move
the High Court such conviction.

Secondly, where the accused is convicted of the offence but the Prosecution is not satisfied with the amount
of sentence that is imposed upon him, the Prosecution can move the High Court.

Thirdly, where the person is acquitted and the Prosecution is unsatisfied with the decision of the trial court,
it can approach the High Court by way of appeal. All the three circumstances of appeal have different
grounds and procedure laid down i

I. Appeals against Convictions

Section 374 of the Code allows appeals from the order of conviction against a person accused of an offence
if the person is unsatisfied with the order. The provision entails three situations of appeal, one from High
Court to Supreme Court and second from the trial court to the High Court and another from Court of
Magistrate or Assistant Sessions Judge to Court of Session.

a) Appeal to the Supreme Court

According to Section 374 (1), a person can approach the Supreme Court if he has been tried and convicted
by the High Court in its extraordinary original jurisdiction. This is a very rare case because in India, criminal
trials are conducted only in the trial courts and the superior courts usually remand

a case back to the trial court if they believe that trial has to be conducted in a proper manner or for some
other reasons.

The procedure for appeal before the Supreme Court is not provided in the Code of Criminal Procedure but
in the Constitution itself. Article 134 of the Constitution provides the following as the procedure to appeal
to the Supreme Court in criminal matters:

The High should have convicted the person and sentenced him to death and only then the Supreme Court
can interfere in appeal or

The High Court issues a certificate to the appealing person certifying that the case is fit for appeal before
the Supreme Court. Under Article 134A of the Constitution, a case is considered fit for an appeal if there is
a substantial question of law that needs to be answered by the Supreme Court.

b) Appeal to the High Court

Section 374 (2) provides grounds for appeal to the High Court. These are:

· The case must be tried and the accused person must be convicted by the Court of Session or
the Additional Sessions Court.
· The sentence passed by the trial court must be for the imprisonment of seven years or more.
 · The person convicted must be either tried separately or jointly with other accused but for the
same offence for which they have been convicted.

On these grounds, the High Court can exercise its appellate jurisdiction to hear appeals from these
conviction orders. During the appeal stage, the High Court does not look into the veracity of the witnesses
or strength of the evidence. The High Court only looks into questions of law and any error committed by
the inferior court in considering the material evidence brought on record.

c) Appeal to the Court of Sessions

According to Section 374 (3), an appeal can be brought before the Court of Session from an order of
conviction in any criminal matter which fulfils the ground for appeal under the section. The grounds under
Section 374 (3) are:

· The appellant must be tried and convicted by a Court of Judicial Magistrate or Metropolitan
Magistrate or Court of Assistant Sessions Judge or
· The appellant is sentenced under Section 325 of the Code of Criminal Procedure where the
Judicial Magistrate feels that the accused deserves a sentence severe than what the Magistrate
is empowered to impose and the case is transferred to the Chief Judicial Magistrate who
imposes a severe sentence upon the accused person or
· An order of probation has been passed against the accused person and he is unsatisfied with
the order believing him to be innocent of the offence convicted of.

d) Appeals by State Government against Sentences

According to Section 377 (1) of the Cr.P.C, if a person accused of an offence is tried and convicted by the
trial court but the Prosecution, i.e. the State is unsatisfied with sentence of imprisonment or any other
sentence passed by the trial court, the State Government may give direction to the Public Prosecutor to
move the High Court as appeal against such sentence.

II. Appeals in Cases of Acquittal

Section 378 of the Code deals with appeals from an order of acquittal passed by any trial court, be it the
Court of Magistrate or Sessions Court. The appeal under this section is very wide in nature. It allows appeal
by the State as well as by the complainant and it allows appeal against orders of acquittal in cases instituted
on ordinary jurisdiction or in revisionary jurisdiction of the Court of Session. The important procedures to
be followed under this provision are

If the appeal is taken by the State, it must be represented by the Public Prosecutor and no one else.

The Public Prosecutor must act under the direction of the State Government and not suo motu.
 No appeal should be allowed from the order of acquittal unless leave is obtained from the High Court to
file such appeal. If the application for leave is refused by the High Court, the appeal cannot be moved under
this provision.

An appeal must be filed within six months from the date of the order of acquittal if the case is instituted
on a police report and within sixty days if it is filed on a private complaint before the Magistrate.

NO APPEAL IN CERTAIN CASES

1. The general rule regarding appeals is that no appeal shall lie unless a specific mention of the
same is provided by law. (Section 372)
2. A victim shall have a right to appeal against any order passed, by the Court, in which the
accused is acquitted or convicted for a lesser offence or for imposing inadequate compensation.
Such an appeal shall lie to a Court in which appeal would normally lie. This was inserted by
the Amendment of 2008.
3. The Code of Criminal Procedure gives definite provisions as to when an appeal lies. This
however, is delimited by the provisions which state the circumstances in which appeal shall
not lie.
4. No appeal in petty cases

i. Section 376 of the Code states that there shall be no appeal by a convicted
person in the following cases:

a. *Where the sentence of imprisonment is only 6 months or fine upto Rs. 1000 or
both, passed by the HC.
ii. However, appeal in the abovementioned cases may be brought if some other
punishment is combined with such sentence.
iii. Such sentence shall not be appealable merely on the ground that:
a. The person so convicted is ordered to furnish security to keep the peace;
 b. That a direction for imprisonment is included in the sentence for default of
payment.
c. That more than one sentence of fine is passed in a case, and the total does not
exceed the amount as mentioned above.

5. No Appeal from Conviction on plea of guilty (Section 375)

i. When a person has pleaded guilty and is convicted on such plea, there shall
be no appeal if the conviction is by:
a. The HC;
b. The Court of Sessions, Metropolitan Magistrate, JMFC, JMSC, except as to the
legality of the sentence.
ii. The rationale behind the same is that the person taking a plea of guilt cannot have
a problem with the conviction and therefore no appeal shall lie from it.
iii. If such plea is obtained by way of trickery or influence it shall not be regarded as
a plea of guilt and therefore appeal may lie from it.
iv. By pleading guilty one admits to the commission of the offence; however he does
not accept the sentence passed by the Court regarding the conviction. Thus, an
appeal may lie challenging the extent or legality of the sentence.
v. An appeal challenging the extent or legality of a sentence cannot lie if such
sentence is passed by the HC.

Special Right to Appeal

1. Section 380 of the Code when there is more than one person convicted in a trial and an
appealable order is passed in respect of any one of the accused, then all or any of the persons
may file for appeal if convicted under the trial.
2. For example, A, B, C and D are the accused in a trial. C is acquitted. A is the only one convicted
of a sentence for which an appeal may lie. However, B and C may also file an appeal by way of
S. 380.

- Government Appeal against Sentencing

1. Section 377 (1) The State Government may, in any case of conviction on a trial held by any
Court other than a High Court, direct the Public Prosecutor to present an appeal to the High
Court against the sentence on the ground of its inadequacy.

2. However, if such conviction is in a case in which the offence has been investigated by the Delhi
Special Police Establishment, constituted under the Delhi Special Police Establishment Act,
1946, or by any other agency empowered to make investigation into an offence under any
Central Act other than this Code, the Central Government may also direct the Public Prosecutor
to present an appeal to the High Court against the sentence on the ground of its inadequacy.

3. When an appeal has been filed against the sentence on the ground of its inadequacy, the High
Court shall not enhance the sentence except after giving to the accused a reasonable opportunity
 of showing cause against such enhancement. The accused may also plead for his acquittal or
for the reduction of the sentence.

4. Section 378 deals with appeal in cases of acquittal

5. Section 378 (1) states that other than as otherwise provided in sub-section (2) and subject to
the provisions of sub-section (3) and (5), the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High Court from an original or appellate order of
acquittal passed by any Court other than a High Court or an order of acquittal passed by the
Court of Session in revision.

6. Section 378 (2) states that if such an order of acquittal is passed in any case in which the offence
has been investigated by Delhi Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946 or by any other agency empowered to make
investigation into an offence under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to present an appeal, subject to the
provisions of sub-section (3), to the High Court from the order of acquittal.

7. According to Section 378 (3) no appeal under sub-section (1) or sub-section (2) shall be
entertained except with the leave of the High Court.

8. Section 378(4) states that if such an order of acquittal is passed in any case instituted upon
complaint and the High Court, on an application made to it by the complainant, grants special
leave to appeal from the order of acquittal, the complainant may present such an appeal to the
High Court.

9. Section 378 (5) further states that no application for the grant of special leave to appeal from
an order of acquittal shall be entertained by the High Court after the expiry of six months,
where the complainant is a public servant, and sixty days in every other case, computed from
the date of that order of acquittal.

10. If in a case, the application for the grant of special leave to appeal from an order of acquittal is
refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-
section (2).

Judicial Power in Disposal of Appeals

Section 381: Appeal of Sessions Court: how it is to be heard

1. Sessions Judge or Court of An appeal can be heard by the

Sessions or Assistant Sessions Judge Assistant Sessions Judge or CJM when
the conviction is given by the JMSC
 2. Additional or Assistant Shall hear appeals allotted to them by
Sessions Judge or CJM the Sessions Judge or the HC by
general or special order.

Section 382: Form of Appeal

1. The appeal shall be made by way of petition

2. It shall be in writing
3. It shall be presented by the appellant or his pleader
4. It shall be accompanied with a copy of judgment and the order appealed against, unless the court
to which appeal is presented directs otherwise

Section 383: Procedure when the appellant is in jail

1. When the appellant is under imprisonment, the judgment or order and petition of appeal MAY be
given to the superintendent or officer in charge of the jail who will in turn file the appeal with
appellate criminal court.
2. In the case of Iqbal Ismail Sodawala v. S. O. Maharashtra, it was held that this provision must be
complied with COMPULSORILY.
3. The appellant when in jail, cannot present his petition of appeal him or through his pleader to the
proper appellate court.
4. Even though the section is optional the case law says it must be complied with compulsorily.

Section 384: Summary dismissal of Appeal

1. The appeal may not heard at length by the appellate court and can be dismissed summarily.
2. Under Section 382 and 383, when the appeal is filed or on examination of the petition, judgment
or order, if the court is of the opinion that no sufficient grounds exist for interfering with the order
passed, the court may dismiss the appeal.
3. If the appeal is filed under S. 382, the appellant or his pleader shall be given an opportunity of
being heard.
4. If the appeal is filed under S. 383:
i. Reasonable opportunity to be heard shall be given to the appellant unless
the court is of the opinion that the appeal is frivolous and it would be inconvenient
to produce the appellant before it.
ii. It shall not dismiss the appeal summarily until the period allowed for
preferring appeal has expired.
5. The format of the Petition for Appeal is as follows:
i. Paragraph 1 to 4: Facts
ii. Paragraph 5 and 6: Lower Courts Decision
 iii. Paragraph 6 onwards: grounds or reasons for appeal alleging the grievances against
the lower court and shall not contain anything against the opposite party
iv. Last Paragraph: shall expressly state that the appeal has been filed within
the period of limitation
6. In an appeal no evidence is recorded. However, if the evidence is challenged then the record and
proceedings of the lower court may be called upon by the appellate court.
7. When the Sessions court or the CJM passes an order for dismissal of an appeal, reasons for the
same must be recorded in writing.
8. Although when the HC passes an order for dismissal and there is an option for appeal to the SC,
reasons need not be given by the HC.

Section 385: Appeal when not dismissed summarily

1. The appellate court shall give a notice stating the day, date, time and place for the hearing. Such
notice shall be issued to the appellant or his pleader or an officer appointed by the State Government
on this behalf.
2. If the appeal is on conviction then a copy shall be sent to the complainant.
3. If the appeal is under S. 377 or S. 378 then a copy shall be given to the accused.
4. The officer, accused or complainant shall be furnished with a copy of the grounds of appeal in a
case.
5. The appellate court shall then call for a copy of the record or proceedings of the lower court if not
already produced. However, if the appeal challenges the extent or legality of the sentence passed
by the lower court, the record or proceedings need not be called for.
6. If the ground of appeal is only with respect to the severity of the sentence, the appellant shall not
be heard on any other ground except with the leave of the court.

Section 386: Powers of the Appellate Court

1. When the appeal is filed by the appellant, public prosecutor or under S. 377 or 378, the Appellate
Court may:
i. Dismiss the appeal if it is of the opinion of the court that there is no ground
for interfering in the order passed.
ii. When the appeal is from an order of acquittal the court may
a. reverse the order or
b. direct further enquiry or
c. the accused may be retried or
d. convict the accused for trial or
e. With or without altering the finding, alter the nature or /and extent of the sentence
in order to reduce or enhance the sentence
f. if found guilty, pass a sentence accordingly.
iii. When the appeal is from an order of conviction, the court may
a. Reverse the finding and sentence
b. Acquit or discharge the accused
c. Retry the accused by a competent court
d. Committed for trial.
iv. In an appeal for enhancement of sentence, the court may:
 a. Reverse the finding and the sentence
b. Alter the finding and maintain the sentence
c. With or without altering the finding, alter the nature or /and extent of the sentence
in order to reduce or enhance the sentence
v. In an appeal from any other order, reverse the order.
vi. Make any amendment to the order
vii. Pass any order that may be incidental or consequential to the order passed which
is just and proper.
viii. The sentence cannot be enhanced unless the accused may be heard on such
enhancement
ix. Greater punishment may not be passed by the Appellate court.

Section 387: Judgments of Subordinate Appellate Courts

1. Under Chapter 27 of the Code and Rules, when a judgment is given by a criminal court of original
jurisdiction, they shall apply for appeal to the Sessions Court or the CJM.
2. The accused shall not be brought before the appellate court unless the court otherwise directs.

Section 388: Order of the HC on appeal to be certified by the lower court

1. Whenever a case is decided on appeal by the High Court under this Chapter, it shall certify its
judgment or order to the Court by which the finding, sentence or order appealed against was
recorded or passed.
2. If such Court is that of a
i. Judicial Magistrate other than the Chief Judicial Magistrate, the High
Court's judgment or order shall be sent through the Chief Judicial Magistrate;
ii. Executive Magistrate, the High Court's judgment or order shall be sent
through the District Magistrate.
3. The Court to which the High Court certifies its judgment or order shall then make such orders as
are conformable to the judgment or order of the High Court; and, if necessary, the record shall be
amended accordingly.

Section 389: Suspension of sentence pending the appeal; release of appellant on bail

1. Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded
by it in writing, order that the execution of the sentence or order appealed against be suspended
and, if he is in confinement, that he be released on bail, or on his own bond.

2. The power conferred by this section on an Appellate Court may be exercised also by the High
Court in the case of an appeal by a convicted person to a Court subordinate to it.

3. Where the convicted person satisfies the Court by which he is convicted that he intends to
present an appeal, the Court shall,-
 i. where such person, being on bail, is sentenced to imprisonment for a term
not exceeding three years, or

ii. where the offence of which such person has been convicted is a bailable
one, and he is on bail, order that the convicted person be released on bail, unless
there are special reasons for refusing bail, for such period as will afford sufficient
time to present the appeal and obtain the orders of the Appellate Court and the
sentence of imprisonment shall, so long as he is so released on bail, be deemed to
be suspended.
4. When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for
life, the time during which he is so released shall be excluded in computing the term for which
he is so sentenced.

Section 390: Arrest of accused in appeal from acquittal

1. When an appeal is presented under section 378, the High Court may issue a warrant directing that
the accused be arrested and brought before it or any subordinate Court, and the Court before which
he is brought may commit him to prison pending the disposal of the appeal or admit him to bail.

Section 391: Appellate Court may take further evidence or direct it to be taken

1. In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence
to be necessary, shall record its reasons and may either
i. take such evidence itself, or direct it to be taken by a Magistrate,
ii. when the Appellate Court is a High Court, by a Court of Session or a
Magistrate.
2. When the additional evidence is taken by the Court of Session or the Magistrate, it shall certify
such evidence to the Appellate Court, and such Court shall proceed to dispose of the appeal.
3. The accused or his pleader shall have the right to be present when the additional evidence is taken.
4. The taking of evidence under this section shall be as if it were an inquiry.

Section 392: Procedure when Judges of Court of Appeal are equally divided

1. When an appeal is heard by a HC before a Bench of Judges and the Judges are divided in their
opinion, the appeal shall be laid before another Judge of that Court and the judgment or order shall
follow the opinion of such Judge.
2. However, if one of the Judges constituting the Bench or where the appeal is before any other Judge,
if that Judge so requires that the appeal be reheard and decided by a larger Bench of Judges.

Section 393: Finality in Judgments and Orders in Appeal

 1. Section 393 states that judgments or orders when passed on appeal are final except when the appeal
relates to:
i. Inadequacy of sentence
ii. Against acquittal
iii. A regular appeal after the dismissal of jail appeal
iv. An application for revision or reference.
2. The Court may hear an appeal and dispose of a case on its merits in the following cases:
i. An appeal against acquittal
ii. An appeal against enhancement of sentence

Section 394: Abatement of Appeals

1. Every appeal against inadequacy of sentence and acquittal shall finally stop on the death of the
accused.
2. Every appeal from conviction also shall abate on death of the accused. There are 2 exceptions
however:
i. If leave to continue appeal is granted by the appellate court. Such leave
may be granted to near relatives when the appeal is against conviction, sentence of
death or imprisonment. Near relative means: parent, spouse, lineal descendant,
brother or sister.
ii. When the appeal is from a sentence of fine, it shall not abate. This is
because the fine constitutes liability on the estate of the deceased and legal
representatives of the deceased on whom the liability rests.

REVISIONAL JURISDICTION

1. According to Section 397 (1), the HC or the Sessions Court may call for and examine the record of
any proceeding before any inferior criminal court situate within its local jurisdiction for the purpose
of satisfying itself as to the correctness, legality or propriety of the finding or order of the inferior
court.
2. All Magistrates, whether executive or judicial while exercising their original or appellate
jurisdiction shall be deemed to be inferior to the Sessions Judge.
3. The Sessions Judge shall be considered inferior to the HC.
4. During such revision, the execution of any sentence shall be suspended OR if the accused is in
confinement, the accused must be released on bail on his on bond pending the examination of
record.
5. Section 397 (2) states that the powers of revision cannot be exercised in relation to any interlocutory
order that is passed in an appeal, inquiry, trial or other proceedings.
6. Section 397 (3) further states that if an application for revision is made to the Sessions Court or to
the High Court, no further application can be made by the same person and the same shall not be
entertained by the other.
7. Section 398 deals with the power to order inquiry.
8. After examining the application under Section 397 or otherwise, the HC or the Sessions Court may
direct the Chief Judicial Magistrate or any other Magistrate subordinate to him to conduct further
inquiry into any complaint dismissed under
i. Section 204 (4) –process fees not being paid; or
 ii. Section 203- dismissal of complain due to no sufficient grounds; or
iii. Where a person is accused and then discharged.
9. However, no court shall make any direction for inquiry unless the person has been given a
reasonable opportunity to show cause as to why such directions must not be made.
10. Section 399 deals with the powers of the Sessions Judge in respect of Revision. They include:
i. All or any powers exercised by the HC under Section 401(1);
ii. All the powers enjoyed by the HC under Sections 401 (2), (3), (4) and (5);
iii. The order of the Sessions Court shall be treated as final and no further proceedings
by way of revision at the instance of such person shall be entertained by the HC or
any other Court.
11. Section 400 enumerated the powers of the Additional Sessions Judge with respect to revision which
are as follows:
i. All the powers enjoyed by the Sessions Judge under S. 399;
ii. The Additional Sessions Judge shall have the power of revision only when
the Sessions Judge allots certain revision applications by general or special order.
12. Section 401 deals with the powers of the HC with respect to revision.
13. Section 401 (1) states that in case of any proceeding the record of which the HC suo moto or which
otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the
powers conferred on a
i. Court of Appeal by sections 386, 389, 390 and 391 or
ii. Court of Session by section 307 and,
iii. When the Judges composing the Court of revision are equally divided in
opinion, the case shall be disposed of in the manner provided by section 392.
14. Section 401 (2) states that no order of conviction shall be made to the prejudice of the accused
unless he has been given an opportunity of being heard personally or through his pleader in his
defence.
15. Section 401 (3) provides that the HC does not have the power of converting an order of acquittal
into conviction.
16. Section 401 (4) states that no revision application can be filed when an appeal lies and no appeal is
filed.
17. Section 401 (5) states that if an application if moved under Section 401(1) for revision and the
Court is satisfied that such application is made with erroneous belief that no appeal lies and it is
necessary in the interest of justice to do so, the HC may treat such an application as a petition of
appeal.
18. Section 402 deals with the powers of the HC to transfer or withdraw revision cases.
19. Whenever one or more persons convicted at the same trial make an application to a High Court for
revision and any other person convicted at the same trial makes an application to the Sessions
Judge for revision, the High Court shall decides whether all the applications for revision should
be disposed of by itself or it shall direct that the applications for revision made to it be transferred
to the Sessions Judge.
20. Whenever any application for revision is transferred to the High Court, that Court shall deal with
the same as if it were an application duly made before itself.
21. Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal
with the same as if it were an application duly made before himself.
22. Where an application for revision is transferred by the High Court to the Sessions Judge, no further
application for revision shall lie to the High Court or to any other Court at the instance of the
person or persons whose applications for revision have been disposed of by the Session Judge
23. Section 403 gives the Court an option to hear the parties. No party has any right to be heard
personally or through his pleader in case of an application for revision.
24. The Court may, if it thinks fit, either hear the party in person or through his pleader while exercising
such powers.
 25. If any special proviso is expressly provided under the Code it shall prevail over this Section.
26. When the record of the trial which is held by the metropolitan Magistrate is called upon by the HC
or the Sessions Court, the Magistrate may submit the reasons for passing the order and the same
shall be considered by the HC or the Sessions Court while overruling or setting aside the order or
decision. (Section 404)
27. Section 405 states that after the HC has passed its order, the lower court shall go through such order
of the HC and if in the interest of justice it is deemed that a further order be passed, the lower court
shall do so in conformity with the order passed by the HC.

TRANSFER OF CASES
Section 406: Power of Supreme Court to transfer cases and appeals

1. Whenever it is made to appear to the Supreme Court that an order under this section is expedient
for the ends of justice, it may direct that any particular case or appeal be transferred from one High
Court to another High Court or from a Criminal Court subordinate to one High Court to another
Criminal Court of equal or superior jurisdiction subordinate to another High Court.
2. The Supreme Court may act only on the application of the Attorney-General of India or of a party
interested, and every such application shall be made by motion, which shall, except when the
applicant is the Attorney-General of India or the Advocate-General of the State, be supported by
affidavit or affirmation.
3. Where any application for the exercise of the powers conferred by this section is dismissed, the
Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the
applicant to pay by way of compensation to any person who has opposed the application such sum
not exceeding Rs. 1000 as it may consider appropriate in the circumstances of the case.

Section 407: Power of High Court to transfer cases and appeals

1. Whenever it is made to appear to the High Court-

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise; or

(c) that an order under this section is required by any provision of this Code, or will tend to the general
convenience of the parties or witnesses, or is expedient for the ends of justice,

2. it may order-
(i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both
inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court
subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.
 3. The High Court may act either on the report of the lower Court, or on the application of a party
interested, or on its own initiative:
4. Provided that no application shall lie to the High Court for transferring a case from one Criminal
Court to another Criminal Court in the same sessions division, unless an application for such
transfer has been made to the Sessions Judge and rejected by him.
5. Every application for an such an order shall be made by motion, which shall, except when the
applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
6. When such application is made by an accused person, the High Court may direct him to execute a
bond, with or without sureties, for the payment of any compensation which the High Court may
award.
7. Every accused person making such application shall give to the Public Prosecutor notice in writing
of the application, together with a copy of the grounds on which it is made; and no order shall be
made on the merits of the application unless at least 24 hours have elapsed between the giving of
such notice and the hearing of the application.
8. Where the application is for the transfer of a case or appeal from any subordinate Court, the High
Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending
the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such
terms as the High Court may think fit to impose:
9. Provided that such stay shall not affect the subordinate Court's power of remand under section 309.
10. Where an application for such an order, the High Court may, if it is of opinion that the application
was frivolous or vexatious, order the applicant to pay by way of compensation to any person who
has opposed the application such sum not exceeding one thousand rupees as it may consider proper
in the circumstances of the case.
11. When the High Court orders that a case be transferred from any Court for trial before itself, it shall
observe in such trial the same procedure which that Court would have observed if the case had not
been so transferred.

REFERENCE (She has taught this but its not in the syllabus)

Section 395: Reference to High Court

1. Where any Court is satisfied that a case pending before it involves a question as to the validity of
any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation,
the determination of which is necessary for the disposal of the case, and is of opinion that such Act,
Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the
High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case
setting out its opinion and the reasons and refer the same for the decision of the High Court.
2. A Court of Session or a Metropolitan Magistrate may, if it or he thinks fit in any case pending
before it or him, refer for the decision of the High Court any question of law arising in the hearing
of such case.
3. Any Court making a reference to the High Court pending the decision of the High Court thereon,
either commit the accused to jail or release him on bail to appear when called upon.

Section 396: Disposal of case according to decision of High Court

1. When a question has been so referred, the High Court shall pass such order as it thinks fit, and shall
cause a copy of such order to be sent to the Court by which the reference was made, which shall
dispose of the case conformably to the said order.
 2. The High Court may direct by whom the costs of such reference shall be paid.

EXECUTION, SUSPENSION, REMISSION OF SENTENCES

Introduction
● Under the Indian Constitution, 1950, Article 72 and Article 161 empower the Governor and
the President to grant pardon, suspend, remit or commute the sentence.
● Meanwhile in the Criminal Procedural Code, 1973, there is a whole Chapter XXXII
dedicated to the suspension, remission and commutation of sentence.
● The power to remit, suspend or commutate a sentence is exercised by the head of the state.
● The executive can show mercy on the convict by way of remission, suspension or
commutation etc.
● The basic purpose of the suspension, remission, commutation and other forms of showing
mercy, is to take into consideration certain aspects of the case which do not arise during the
proceedings in the court of law.

EXECUTION OF DEATH SENTENCE

Execution of order passed under Section 368

● Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence
without the confirmation of the High Court, till that time the convict has to be in jail custody.
● The High Court, under Section 368 of the CrPC, looks into the case.
● The High Court can:
○ Confirm the sentence given by the Session Court.
○ Annul the conviction and convict the accused of the same charges as that of the
Session Court or may order for fresh proceedings on the same or altered charges.
○ May acquit the person, as the time for the appeal has not lapsed yet or the appeal has
been disposed of.
○ Any order received by the Session Court from the High Court has to be executed by
the Session Court by way of issuance of a warrant. (Section 413 of the CrPC).

Execution of sentence of death passed by High court

● Under Section 414 of the CrPC, if the High Court, passes the order of death sentence in
appeal or revision, the Session Court has to carry on the order by issuing a warrant.

DUTY OF JAIL SUPERINTENDENT IN CERTAIN CASES

● When the High Court certifies to the Sessions Judge, any information regarding the
confirmation, annulment of charges of the accused in the case that was sent by way of an
appeal or revision, the Session judge will send a warrant to the Superintendent of Jail of
which the prisoner was originally committed.
● If the prisoner is transferred to another jail, then, in that case, the Superintendent of Jail
has to send back the warrant to the Sessions Judges who in turn will give the warrant to the
Superintendent of the Jail in which the prisoner is transferred.
 ● In case of alteration of the charges by the appellate courts by way of an appeal or
revision, the same would be informed to the Superintendent of Jail to which the prisoner is
committed.
● Even in the case of immediate release of the prisoner from the jail, the Sessions Judge by
way of a warrant would inform the Superintendent of the Jail.
● The superintendent after such execution will give the original warrant, duly filled to the
district magistrate in which the trial was held.

POSTPONEMENT OF EXECUTION OF DEATH SENTENCE

In case of appeal to the Supreme Court

● Under Section 415 of the CrPC, 1973, the High Court may order for the postponement of
the execution of death sentence, if the case has been sent to the Supreme Court for appeal
(Article 134 of the Indian Constitution).
● The postponement would be until the time for preferring such appeal has been lapsed or
the appeal has been disposed of, altogether.
● If the death sentence has been confirmed by the High Court, the person so sentenced may
ask the High Court, by way of an application for the grant of a certificate under article 134
or 132 of the Indian Constitution.
● The High Court has to postpone the execution of the death sentence until such demand is
disposed of by the High Court or such certificate of appeal has been granted before the time of
considering such appeal by the Supreme Court has not lapsed.
● When the death sentence has been confirmed by the High Court, but the High Court is
satisfied that the person so sentenced intends to file a Special Leave Petition to the Supreme
Court under Article 136 of the Indian Constitution.

● The High Court will order the postponement of the execution of the death sentence till the
time which is reasonable for the person who is sentenced, to file such appeal in the Supreme
Court.

Postponement of capital sentence on a pregnant woman

● Under Section 416 of the CrPC, if the woman who is sentenced is found to be pregnant, then
the High Court, in that case, can postpone the sentence or if it deems fit, the High Court can
also commute the sentence to life imprisonment.

PLACE OF IMPRISONMENT
● The State Government unless provided has the power to direct the place of imprisonment for
any person who is convicted under CrPC.
● Moreover, if the person who is convicted under the provisions of CrPC, is confined in the
civil jail, then the magistrate of the court shall order that the person so convicted, should be
shifted to a criminal jail.
● However, if the person who was transferred to the criminal jail from the civil jail, will be
sent back to the civil jail unless-
 ○ Three years have lapsed, the person, in this case, shall be released under Section 58
of the CPC, 1908 or Section 23 of the Provincial Insolvency Code.
○ The order which ordered the imprisonment of the person in the civil jail orders the
officer in charge to release of the convicted person under Section 58 of CPC or
Section 23 of the Provincial Insolvency Code.

Execution of sentences of imprisonment

● Under Section 418 of the CrPC, a person who is imprisoned for life or for terms other than
those mentioned in Section 413 of the CrPC, the court passing such sentence has to give a
warrant to the place where the person has to be confined unless such person is confined to
such place.
● However it must be the person who is imprisoned till the court is rising, then there is no
need to forward a warrant to the jail and the person shall be confined as per the direction of the
court.
● Under Section 418(2) of the CrPC, if the accused is not present in the court at the time
when he is sentenced to such imprisonment, then, in that case, the court has to order for the arrest
of that person, by way of an arrest warrant, for forwarding him to jail or any other place where
he shall be confined and the sentence will start from the time of arrest of the accused.

● In the case of Ishwarbhai Hirabhai Churana vs the State of Gujrat, this Section is held to
be mandatory. Moreover, under this Section, the court also owes a duty to ensure that the
sentence is executed, otherwise, the accused may avoid it.
● The warrant issued is non – bailable, as it empowers the authority to arrest the person,
after the issuance of this warrant. Such a warrant is necessary in case the sentence was
pronounced in the absence of the accused.

A warrant for the execution of sentence of imprisonment

● Under Section 419 of the CrPC, the warrants for the execution of the sentence of
imprisonment has to be directed to the in-charge of the jail or of any place in which the
accused is to be confined. But if the person is to be confined in the jail, then the warrant
needs to be given to the jailor.

EXECUTION OF THE SENTENCE OF FINE

A warrant for the levy of fine

● When the court sentences to levy the fine on the offender, it can recover it through either or
both of these methods
● Issue of warrant for the levy of amount through the attachment of the movable property of
the offender.
● Issue of a warrant to the district collector and order him to collect it as an arrear of land
revenue accruing from a movable or immovable property or both.
● The collector, in this case, shall collect the arrears of revenue as per the prevailing laws with
respect to the collection of revenue in the country.
● The warrant here will only serve the purpose of a certificate.
 ● It is important to note that in case it is mentioned that there shall be imprisonment if default
of payment happens, and if the offender has already served the default sentence, then no
court shall issue such warrant, unless there are some special circumstances which have to be
recorded in writing, or if there is an order for the payment of compensation of fine that arose
as per the provisions of Section 357.
● The state government can make rules in regards to how the execution of the recovery of
the fines would take place and the summary claims made by a person other than the offender
himself would be considered accordingly.
● No such warrant shall be executed by the arrest or detention of the person in the prison.

Effect of such warrant

● The court shall order the attachment of property for the recovery of fines within the local
limits of its jurisdiction, however, it could order such attachment outside its jurisdiction

too if it is endorsed by the District Magistrate of the area in which the property to be attached is
present.
● A warrant for the levy of fine issued by a court in any territory to which this Code does
not extend
● If the offender has been sentenced to pay the fine in the territory where this code does not
apply, then the court would issue a warrant to the District Collector of the area where the
code applies and order him to collect the fine by way of arrears of revenue.
● This warrant shall be treated as if it is issued under Section 421 of the Code and all the
conditions would apply accordingly.

Suspension of execution of the sentence of imprisonment in default of payment of fine

● When the offender has been sentenced to fine only and in case of default of payment he shall
be imprisoned, and if the fine is not paid then:
○ The order that the fine shall be made in full within 30 days of such order or in
instalments in which the first instalments shall be made within 30 days of such order
and the next instalments within the intervals of not more than 30 days.
○ The court may order the suspension of imprisonment order, if the offender gives a
bond with sureties or not, depending upon the court, for the payment of the fine in full
or in instalments.
● If the offender fails to furnish the fine at the latest date on which such instalments has to
be made, then the court shall order the execution of the imprisonment order.
● This shall also apply in the case where the order for the payment of money has been made
for the non- recovery of which imprisonment may be made.
● And if the person fails to furnish a bond for the payment of the fine, the court may order the
execution of the imprisonment immediately

GENERAL PROVISIONS REGARDING THE EXECUTION

Who may issue a warrant?

 ● Under Section 425, every warrant which is issued for execution is to be given by the
Magistrate or the Judge or Magistrate who passed the sentence or by their successor in-
charge.

The sentence on an escaped convict

● If a sentence of death, life imprisonment or fine is passed under the provisions of this code,
on an escaped convict, then the execution of such sentence should take effect immediately.

● When the sentence is passed on the escaped convict then:

○ When this sentence is more severe than the previous sentence from which the
convict escaped, then the sentence shall take place immediately.
○ If the present sentence is less severe than the sentence from which the convict escape
then the accused has to serve the term which is remaining of the sentence he escaped
from.
● The sentence of rigorous imprisonment will be more severe than the imprisonment of the
simple nature.

The sentence on offender already sentenced for another offence

● If a person has been previously convicted for a sentence and then is subsequently convicted
for another, then the person has to serve his former punishment first and then will serve the
punishment sentenced later.
● Or if the court orders that both the punishment are to be served concurrently.
● The punishment could be imprisonment or imprisonment for life. It is also to be noted that
where a person who has been sentenced to imprisonment by an order under Section 122 in
default of furnishing security is while undergoing such sentence, sentenced to imprisonment
for an offence committed prior to the making of such order, the latter sentence shall
commence immediately.
● However, if a person is already sentenced to life imprisonment and then subsequently is
punished for a term or for life imprisonment, then the former sentence would run concurrent to
the latest imprisonment.

Period of detention undergone by the accused against the sentence of imprisonment

● Where an accused is serving a sentence, other than the one on the default of payment of fine,
and the term of detention undergone by him during the investigation and trial of the same
case shall be set off against the term imposed on him from such conviction.
● The person shall be liable only for the term of imprisonment left if in case the sentence of
imprisonment is given to him.
● In case of a sentence given under Section 433A, such period of detention shall be set off
against fourteen years referred to in that Section.
● But nothing in Section 426 and Section 427 shall be the reason to excuse any person from
the term he is sentenced to in his former or subsequent conviction.
● When an award of imprisonment in default of payment of a fine is added to a substantive
sentence of imprisonment and the person undergoing the sentence is after its execution to
undergo a further substantive sentence or substantive sentences of imprisonment.
 ● In this case, the sentence accruing to the default of payment of fine should be served by
the person only after he has undergone the subsequent sentences.

Return of warrant on execution of sentence

● When the sentence has been executed fully, the officer executing such a sentence will have
to return the warrant to the court which has issued it.
● The warrant that is returned has to be undersigned by the respective officer.
● The method of execution of the sentence must also be specified by the officer in charge.

Money ordered to be paid recoverable as a fine

● Any money which is payable (other than fine) under the provision of this act, and the method
of recovery of such money is not expressly given in the Code, then it shall be collected in
the manner as if it is fine.
● It is to be noted that Section 421 shall, in its application to an order under Section 359, by
virtue of this Section, be construed as if in the proviso to Sub-Section (1) of Section 421, after
the words and figures “under Section 357”, the words and figures “or an order for payment of
costs under Section 359” had been inserted.

SUSPENSION AND REMISSION OF SENTENCES

Constitutional provisions
● The Constitution of India, vests a large amount of sovereign power in the President and the
Governor.
● Centre and the State are governed in the name of President and Governor respectively.
● Under Article 72 of the Indian Constitution, the President has the power to pardon, remit,
suspend or commute any sentence.
● Under Article 72, the President has the power to pardons, reprieves, respites or remission of
punishment or to suspend remit or commute the sentence of any person convicted of any
offence:
○ In cases where the punishment is given by the court-martial. The Governor’s
power to remit, suspend or commute the sentence under the laws of the State, shall be
given precedence.
○ In cases where the power of executive extends.
○ In cases where the punishment is a death sentence.
● Similarly, under Article 161 of the Constitution of India, these powers are conferred on the
Governor of the States.
● The Governor can pardon, reprieve, respite a punishment or suspend, remit or commute the
sentence, which is given on the basis of the laws prevalent in the State, to which the executive
power of the State extends.
● The difference between the pardoning power of the President and that of the Governor is
that the Governor does not enjoy the power to grant pardon to a death sentence.

● However, this power of the President is not absolute and depends on the consultation with
the council of ministers.
 ● This is not present in the Constitution but practically this process is followed.
● Further, the Constitution does not provide for any mechanism to check the legality of the
decision taken by the President and the Governor while exercising their mercy power.
● However, in the case of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway
is provided for judicial review of the mercy granting power of the President and the Governor
to rule out any sort of arbitrariness.

Suspension or remission of sentences

● The suspension is the stay or postponement of the execution of the sentence. In remission,
the duration of the sentence is reduced, without changing the nature of the sentence.
● Remission and suspension differ to a large extent. In remission, the nature of the sentence
is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be
undergone.
● For example, a person sentenced for a term of two years, his sentence is now reduced to
one year. The effect of the remission is that the prisoner is given a certain date on which he shall
be released and the eyes of the law he would be a free man.
● However, in case of breach of any of the condition of remission, it will be cancelled and
the offender has to serve the entire term for which he was originally sentenced.
● The procedure followed is given under Section 432 of CrPC, 1973.
○ The government would ask the opinion of the court which gave such a sentence. The
court would revert with proper records.
○ The government can grant or reject the application for remission and suspension if
in its view all the conditions necessary for such a grant are not fulfilled. the offender
may if at large, be arrested by any police officer without a warrant and is to undergo
the unexpired portion of the sentence.
● The power of remission is wholly an executive action.
● There is no law as such to question the legality of this action, but the government should use
this power fairly and not in an arbitrary manner.
○ However, the court must consider the limitation provided under Section 433A of the
CrPC, 1973.
● The power of remission and suspension should not in any way interfere with the conviction
of the court, it should affect the execution of the sentence.

COMMUTATION OF SENTENCE
● In contrast to Suspension and Remission, which only affect the duration of the punishment
without interfering with the nature of the punishment, Commutation, on the

other hand, changes the nature of the punishment and converts it into a less severe form of
punishment.
● There is nothing to restrict the government to commutate a sentence, even if it is as low
as a fine.
● Under Section 433 of the CrPC, the appropriate government gets the power to commutate
the sentence in an appropriate case. Various sentences are eligible for commutation, one of
them is death sentence i.e.mercy plea.
○ Death sentence to any other punishment provided in the IPC.
 ○ Imprisonment for life to any other imprisonment not exceeding fourteen years or
fine.
○ Sentence of rigorous imprisonment for simpler imprisonment which the person has
been sentenced or a fine.
○ Sentence for a simple sentence to a fine.
● Commutation of death sentence has always been in the controversy, it raises an issue
regarding the basic human rights of the accused and on the other hand the impact of the grave
crime on the society. Section 433 of the CrPC gives the power to the government to
commutate the death sentence to a simpler sentence.
● Most of the convicts of the death sentence, get their sentence reduced to 14 years of life
imprisonment in accordance with the provisions of CrPC.

Restriction on powers of remission or commutation in certain cases

● Section 433A of the CrPC puts a restriction on the power of the President and the Governor
that they can’t commutate the death sentence to less than 14 years of life imprisonment. In
absence of any order under Section 51 of the IPC or Section 433A of the CrPC, the convicts
are not released even after the expiry of 14 years of imprisonment.
● Moreover, remission can be granted under Section 432 of the CrPC in case of a definite
term of sentence.
● The power is to grant “additional” term of imprisonment which is over and above the
remission granted to convict under the jail manual or statutory rules.
● In case of an indefinite sentence, like that of life imprisonment, may remit or suspend the
sentence of the person but not on the basis that such imprisonment is arbitrary or on the
assumption that it is for twenty years.

Concurrent power of the Central Government in case of death sentences

● Under Section 434 of the CrPC, it is stated that the powers under Section 432 and Section
433, which are given to the State government, can be exercised by the Central government
in case of a death sentence.
● State government to act after consultation with the Central Government in certain cases

● Under Section 435 of the CrPC it is stated that the power given to the state government to
remit or commutate a sentence in an offence:
○ Which is investigated under the Delhi Special Police Establishment or by any other
agency which is constituted under any Central Act other than this Code.
○ Which involves misappropriation or destruction of, or damage to any property
belonging to the Central government.
○ Which was committed by the person who is working under the Central government
and was discharging his official duty.
● Such offences, as mentioned above, shall not be discharged by the state government except
after the consultation of the central government.
● Moreover, no order of remission, commutation, or suspension by the state government shall
apply where the executive power of the Central government also extends, or where the terms
of imprisonment of a person have to run concurrently. Such orders will have effect only
where the central government has passed the same sentence with regard to the subject matter
on which the executive power of the centre extends.
 ● According to the 41st Report of the Law Commission of India, it was stated that there are
some matters on which the centre is vitally concerned although on those subject matters the laws
of the State government would apply.
● It is thus necessary that the central government should have a say on those matters and
the state government should work only in consultation of the central government otherwise the
administration of law and justice would be very difficult for the central government.

MAINTENANCE

MAINTENANCE OF WIVES, CHILDREN and PARENTS

Introduction

The essay discusses the Persons Entitled To Claim Maintenance Under Section 125 of The Cr.P.C. Section
125 to 128 of the Code of Criminal Procedure, 1973 provides for “speedy, effective and rather inexpensive
remedy” to certain persons who are specifically entitled to claim maintenance under these provisions. The
subject matter of these provisions technically deal with family matters and therefore, it is in the nature of a
civil dispute.

Nevertheless, the rationale for imbibing these provisions into Cr.P.C is to accord an accelerated and
economical remedy than that is available in civil courts. The Supreme Court in Bhagwan Dutt v. Kamla
Devi justified the presence of Section 125 under Cr.P.C by stating that “these provisions are aimed at
preventing starvation and vagrancy leading to the commission of the crime”

Applicability of the Provisions

The provisions entailed under Sections 125 to 128 of the Code are applicable to all persons irrespective of
their religions and run parallel to the personal laws of the parties. It means that even if a personal law has
specific and detailed provision for maintenance, it cannot make the provision under Cr.P.C inapplicable. In
Nanak Chandra v. Chandra Kishore Aggarwal, the apex held that “sections 125 to 128 have no
relationship with the personal law of the parties”

The application of these provisions went through a great deal of turmoil during 1985 when the apex court
decided the landmark case of Md. Ahmed Khan v. Shah Bano BegumThe court, in this case, granted the
maintenance to the respondent-wife who belonged to Islam where it is believed that no maintenance needs
to be paid to the wife since the husband pays dower (reverse of dowry) at the time of marriage.

The controversy led to the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986 to
reverse the effect of the judgment in Shah Bano. However, in Daniel Latifi v. Union of India, the apex court
once again upheld its decision in Shah Bano and the applicability of the Act was held independent of Section
125.

Persons Entitled to Claim Maintenance

Under certain circumstances mentioned under Section 125, a person is required to pay maintenance to the
following persons:

1.
 His Wife: The first person entitled to claim maintenance is the wife of the person who is required
to pay maintenance. In Savitabenben Bhatiya v. the State of Gujarat, the apex court held that for
the application of this section the “term ‘wife’ means a legally wedded wife”. Thus, there are two
essential conditions to claim maintenance under this provision by a wife; firstly, the wife must be
legally wedded wife and secondly, the marriage must be valid in the eyes of law.

2.

In Anupama Pradhan v. Sultan the court laid three criteria to determine the status of husband-wife. First,
the persons claiming to be husband and wife must have lived as spouses for a considerable period of time.
Second, it should be in the knowledge of the public that they live together as husband and wife and third,
the parties must have been married according to their personal laws.

With respect to the condition of living together for a certain period and with knowledge of the public, the
burden is on the wife to prove that they have been living together as husband and wife before their
separation. Further, explanation (b) to Section 125 (1) provides that “the term wife also includes a divorced
woman”. A woman cannot be divorced unless she was a legally wedded wife of the man. Thus, the right to
maintenance has been extended to a divorced woman as well.

Now, with respect to the validity of a marriage, it always depends upon the rituals and culture and the
personal laws applicable on the parties to decide whether the marriage was valid or not. For instance, in
Naresh Chandra v. Reshma Bai, the court observed that a “marriage by an exchange of garlands is invalid”
since the parties were Hindu.

Moreover, a second marriage solemnised in the subsistence of the first marriage is invalid and the second
wife cannot legally claim maintenance under this provision. When a person claims that his second marriage
is invalid since it occurred without obtaining a decree of divorce from the first marriage, the burden lies on
him to prove that his first marriage is valid and second is, therefore, invalid

The courts can, however, pass an order of maintenance in case of the second marriage as well to prevent
destitution leading to criminal conduct. In Ramesh Chandra Daga v. Rameshwari Rameshchandra Daga,
the apex court held the second wife is entitled to maintenance under and averred that this “decision holds
good even in case of Section 125 maintenance”.

The definition of “wife” has been expanded by the courts to meet the changing paradigms of society. In a
modern society where parties are involved in a live-in relationship, several instances have been witnessed
where on the promise to marry, the man deceives the woman to live with him and maintain a physical
relationship. Now, in the case of live-in relationship, the parties live like husband and wife and to the
knowledge of the public (in most of the cases) but are not legally married.

Thus, this question arose before the Hon’ble Supreme Court in D. Velusamy v. D. Patchaiammal and
Chunmuniya v. Virender Kushwaha in 2010 and 2011 respectively. The court, in both cases, held that “a
woman who was in a marriage-like relationship, though not a legally wedded wife under Section 125 could
claim maintenance under the Cr.P.C and the Protection against Domestic Violence Act”.

1. His Minor Child: The section also obliges every person to maintain his minor child. The essential
traits of this part of the provision can be enlisted as under:
2. The child must be a minor. Explanation (a) to Section 125 (1) defines ‘minor’ as any person who
qualifies the criteria laid down in the Indian Majority Act, 1875 to be referred to as a minor
 Section 11 of the Act of 1875 requires a person to be below the age of 18 years to be called a
minor in the eyes of law.
3. The child can be a male or a female. The only requirement is that it must be a minor and not be
able to maintain itself.
4. The child can be legitimate or illegitimate; married or unmarried. A minor married girl is entitled
to maintenance from her husband and her father both at once. However, if the father can prove
that the husband is able to maintain the minor girl he can avoid such maintenance, but if the
husband is not able to maintain the minor girl the father is bound to maintain her.

The religion of the child is immaterial to decide maintenance under section 125. In Noor Saba
khatoon v. Md. Quasim, the Apex court held that a person cannot be absolved from his obligation
to maintain his child only because of his religion. A Muslim father similar to a Hindu father is
responsible to pay maintenance for his children under this provision of Cr.P.C.

3. His Abnormal Child: The obligation of a father to maintain his minor child mentioned above, is extended
to a child who has attained the age of majority if child is "by reason of any physical or mental disability is
unable to maintain itse The child can be a male or female, legitimate or illegitimate and married unmarried.
However, the father is not responsible to maintain his married daughter; she has attained the age of majority
whether she is normal or abnormal. T responsibility to maintain a major married girl is of the husband and
no one else.

4. His Father or Mother: With the change in time and societal needs, the structure of the family changes
too. As seen today, families are more nuclear and children are not willing to take responsibility for their
parents. This was anticipated by the legislator and to ensure that children maintain their parents and they
do not become an offender or a victim of the certain offence, Section 15 includes parents to be maintained
by their children.

The provision uses the term "his father or mother" which implies that the duty is bestowed upon the son to
maintain his parents. However, the Kerala High Court, in Areefa Beevi v. K.M. Sahib analysed the section
and stated that the expression his father or mother must be taken as to have the meaning her father and
mother as well

Now, the next most significant issue raised with respect to this provision is whether the terms ``father ``
and''mother `` include adoptive, father or, mother and stepfather or stepmother". According to Section 3
(20) of the General Clauses Act, 1897, "Father shall include an 'adoptive father, but, however, "mother'' has
not been defined to include the adoptive mother. In such a situation, the Bombay High Court used its
interpretative power and held that "mother shall include "adoptive mother as well .

Now, when it comes to stepmother or stepfather, the High Courts of Bombay, and Gujarat have the same
opinion. In Ramabai v. Dinesh and Havaben v. Razakbhai, these courts observed that "having regard to
the object and intention of Section 125, the term "mother" will have its natural meaning and will not include
stepmother". The Supreme Court, on the other hand, agreed with the conclusions of the High Courts, yet it
further opined that "a childless stepmother may claim maintenance from her stepson provided she is a
widow or her husband, if living, is also incapable of maintaining her". The court further added that a
stepmother also cannot claim maintenance if she has her own natural-born sons or daughters.
Conclusion

Thus, the provision contemplates the public duty of a person who is very much able to maintain himself to
maintain those who are unable to maintain themselves. The provision does not follow a quid pro quo system
and it is no defence to claim that the parents or his wife did not satisfy his needs or requirements and hence,
he is not obliged to maintain them.

Essential Conditions for Granting Maintenance

Maintenance under Cr.P.C is not granted to everyone and under any circumstances. The code, under Section
125, vests the right to claim maintenance only upon the wife, minor children, unmarried daughter and
parents and under special circumstances which are as follows:

1. Sufficient means to maintain:

According to Sec 125(1), maintenance can be claimed from a person only if he has "sufficient means" to
maintain the person or persons claiming such maintenance. The expression "sufficient means" is subjective
since sufficient for one may not be sufficient for another. Also, the term "means" may include money,
property, business etc. which has also not been specified by the law.

Therefore, to fill the vacuum created by the absence of any legal explanation with this regard, the courts
have clarified the meaning and extent of each of these words.
In Chandrapal v. Harpyan, the court held that 'means' of a person "does not mean the tangible property or
sources of income of the husband". The court implied that it included even the ability of the person to earn
and maintain his family. This was said in most clear terms in Chander Prakash v. Sheila Rani.

The court held that "if a man is healthy and 'able-bodied' he must be held to possess the means to support
his wife, children and parents". These cases establish the rule that a person cannot evade his responsibility
to maintain his dependants claiming his insolvency or joblessness.

Now, the phrase "able-bodied" has also been sifted by the courts several times. The law has to be impartial
irrespective of who the victim is and who the offender is. It cannot be expected from a person to give up all
his means as maintenance and starve himself to death. Thus, able-bodied cannot just mean physical and
mental fitness and ability to earn.

It must include social factors such as "opportunity to earn, education or experience in a field to be able to
work and also includes finance". In Ali Hossain v. Baby Farida Khatoon, the court observed that when it
is said that a person is able-bodied, it is presumed that he is able to pay maintenance and the court must
take into account every piece of evidence required before deciding the quantum of maintenance to be paid,

2. Neglect or Refusal to Maintain:

Sec 125 (1) states that there must be clear dereliction or refusal to maintain the claimant on the part of the
respondent. Such neglect or refusal can be expressed or implied and by words or by conduct. The scope of
neglect or refusal depends upon who the claimant is. For instance, in case the claimant is a wife, neglect or
refusal will mean something more than a mere failure or omission.

The husband must in clear words deny the maintenance to the wife or make it difficult for her to live in that
house. However, in case of a minor child who is not able to exercise his will or has no volition of itself,
mere failure or omission may amount to neglect or refusal. The same was observed by the Andhra Pradesh
High Court in Chand Begum v. Hyderbaig.

The courts have inclined towards a liberal interpretation of the expression "neglects or refuse to maintain".
No straight jacket formula can be established to determine whether the wife or any other claimant could
successfully prove that the person neglected or refused to maintain him/her. In Sahu v. Khagyodhar Sahu,
the court averred that it shall depend upon the facts and circumstances of each case.

3. A person claiming Maintenance must be unable to maintain itself:

The provisions under Sections 125 to 128 are civil in nature. They have been incorporated in criminal law
with the sole intention to provide speedy and inexpensive justice that will prevent vagrancy and augmented
crime owing to such vagrancy. Now, a wife who has been gifted a huge amount of wealth by her father
along with a residential apartment, cannot claim that she has a right to maintenance because her husband
refused to maintain her.
Like any other provision under the Criminal Procedure Code, this provision also needs to be used wisely
and to bring the other party to justice and not to cause gains or profits to the suffering party. Thus, the
applicant's inability to maintain himself/herself is the sine qua non for the grant of maintenance under Sec
125.

Now, unable to maintain herself in Sec 125 (1) (a) does not mean that the wife should be "absolute destitute
and should be on the street, should beg and be in tattered clothes"[10]. The expression connotes that the
person has no other sufficient means to maintain himself/herself than the person against whom the
maintenance is claimed. The inability to maintain oneself has nothing to do with the earning capacity of the
claimant.
There are no specific criteria to determine the inability of the claimant under this provision. In Shanyani
Haidar v. Bharati Haidar, the court asserted that "the statement of the wife that she has been able to survive
with great difficulty is sufficient compliance of Section 125 CrPC".
In Rewati Bai v. Jageshwar, ordering allowance of Rs. 350/- per month to the wife, the M.P. High Court
observed that the fact that she was compelled to work as a labourer to survive was by itself not sufficient
to establish that the applicant was able to maintain herself.

To claim maintenance under this provision, the applicant must categorically aver in the application that s/he
is unable to maintain her/himself. However, failure to add in the petition about the inability of the claimant
does not become the sole reason for violating the trial.

In Mohinder Singh v. Joginder Kaur, the wife filed an application for maintenance under $125 but did not
mention about her inability to maintain herself in the petition. At the time of taking evidence, however, it
was brought out that the wife was unable to maintain herself and so the magistrate granted her claims which
were also upheld by the Hon'ble High Court.

4. Special Conditions when Maintenance is claimed by wife:

Under Section 125 (4), two exceptions to the grant of maintenance have been provided specifically when
the applicant is the wife. According to this section, the husband will be exempted from maintenance if the
wife has maintained "outright adulterous conduct and she is in a quasi permanent union with the man with
whom she is committing adultery".

Also, if the wife refuses to live with the husband under the same roof without any reasonable ground, she
cannot be said to possess the right to maintenance. In Saygo Bai v. Chueeru Bajrangi, the court said that
if the husband has contracted a second marriage or keeps a mistress, it shall be considered to be a just
ground for the refusal of the wife to stay with him. The court held that no wife with any self-esteem will
ever bear the pain of keeping with the mistress of her husband.

Alteration in Allowance Ordered by the Magistrate

After the Magistrate is satisfied that the above-mentioned conditions have been duly fulfilled, he shall order
the person to pay a monthly allowance to the claimant and if necessary, interim maintenance during the
pendency of the matter. This amount of maintenance payable to the claimant can be altered under two
circumstances:

1. On proof of a change in circumstances of the parties or any of the parties, the Magistrate can alter the
order of maintenance or interim maintenance as the case may be.

2. Under Section 127 (1), if the Magistrate believes that a valid case before a competent civil court is
pending and the judgment in such court might vary the amount of maintenance, then the Magistrate may
alter the allowance.
Besides this no application can be filed for an increase in the allowance for the reason that they already
allow maintenance is not sufficient to meet her needs.
Jurisdiction and enforcement of the order of the magistrates under section 125 CRPC 1973

Jurisdiction And Enforcement Of The Order Of The Magistrates Under Section 125, Cr.P.C, 1973. Section
125 to 128 of Criminal Procedure Code, 1973 deals with the grant of maintenance by a person who neglects
to maintain his wife, parents or children. It is a common legal axiom that says "ubi jus ibi remedium", i.e.
where is right there is the remedy.

On one hand Section 125 vests the right of maintenance upon such neglected persons whereas sections 126
to 128 provide for the jurisdiction, order and enforcement of such order of the Magistrates.

Jurisdiction of Magistrates

According to the Code, only "Judicial Magistrates of the First Class can deal with and decide petitions for
maintenance" under Chapter IX. It has been provided by clause (g) of Section 461 that "if any Magistrate,
not being empowered by law on his behalf, makes an order of maintenance, his proceedings and such order
shall be void".

Under Section 126, proceedings for maintenance "may be taken against any person in any district:
· Where he is or
· Where he or his wife/parents/children reside or
· where he last resided with his wife or as the case may be with the mother of his illegitimate
child"

However, the jurisdiction of the Magistrates under this provision is ousted by Section 7 (2) (a) of the Family
Courts Act, 1984. According to this section, "wherever family courts have been established the jurisdiction
to grant maintenance shall be exercised by family courts alone". The court in Chimata Nagarathnamma v.
Chimata Naganail observed that "the alternative forums have purposefully given by Parliament so as to a
discarded wife or helpless child to get the much-needed and urgent relief in one or the other of the three
forums that are convenient to them.
Now, since the provision is quite elaborate, the issue that often arises is that whether a woman deserted by
her husband and does not have a permanent place, will have to initiate a proceeding before a court where
she last resided with the husband. Thus, when it comes to the interpretation of Section 126, the apex court
held in Jagir Kaur v. Jaswant Singh that "the words in Section 126(1) should be liberally construed without
doing any violence to the language"

Besides the wife, the parents of the person can also claim maintenance under this provision "where they
reside or where their children reside". Etymologically, the word "reside" would mean to have a permanent
place of residence; where a person enjoys food, shelter and clothing. In Jagir Kaur, the court observed that
"the expression 'resides' means something more than a flying visit and does not include a casual stay in a
particular place". To determine the meaning of 'reside' what is necessary "is the intention to stay for a
period, the length of the period depending on the circumstances of the case".

Order of Maintenance

Section 125 (1) of the Cr.P.C empowers the courts to order maintenance to helpless related-persons to
prevent criminal conduct compelled by destitution and starvation. To comprehend the nature and
circumstance in which such an order can be passed, it is essential to reproduce the section.

Section 125: Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such
child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon
proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his
wife or such child, father or mother, at such monthly rate in the whole, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate
may order the father of a minor female child referred to in clause (b) to make such allowance until she
attains her majority if the Magistrate is satisfied that the husband of such minor female child if married, is
not possessed of sufficient means.

Explanation. For the purposes of this Chapter,

(a)" Minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875); is
deemed not to have attained his majority;

(b)" Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and
has not remarried.

After complete perusal of the jurisdiction and evidence brought on record by both the parties, if the court
is satisfied that the essential conditions under Section 125 for the grant of maintenance have been satisfied,
"the court may order the person proceeded against to make a monthly allowance for the maintenance of the
applicant.
The proviso to Section 125(1) also empowers the court to "order a father of a legitimate illegitimate child
minor female child to make such allowance as necessary until she attains majority". However, the code uses
the word "may" under the provision which implies discretion and direction. Thus, discretion is conferred
upon the courts to "justify the requirement of the situation considering the equity of each case separately".

With respect to the circumstances that should be observed by courts while passing the order of maintenance,
the apex court observed that "object of these provisions being to prevent vagrancy and destitution, the
Magistrate has to find out what is required by the wife to maintain a standard of living which is neither
luxurious nor penurious but is consistent with the status of the family".

In Sudeep Chaudhary v. Radha Chaudhary, the apex court held that the expression "in the
whole" means that the maintenance allowable to the claimant should not exceed amount ordered under
Section 125 of the Code. Thus, if a claimant has obtained maintenance under the Hindu Marriage Act or
any other personal law, such amount will be deducted with the maintenance ordered under Section 125,

Besides the order of maintenance, the court is also empowered to grant any interim maintenance as a relief
to the claimant. Now, let us assume a situation where the wife was subjected to cruelty for 6 years and after
such brutality, she accumulated all the energy and decided to move to her brother's house and file a petition
for divorce and maintenance.

Now, it is not possible for the woman to undertake the expense of fees of her two children and the cost of
living in a new city and she cannot wait for the order of the court. The issue arose before the Supreme Court
in Savitri v. Govind Singh Rawat wherein the court allowed such interim orders holding that the magistrate
has implied powers under Sec 125 to do so.

Enforcement of Order of Maintenance

What is the use of an order if the person against whom it is passed does conform to it? Therefore, to avoid
any injustice to the already suffering victim, the law always provides for an enforcement mechanism. The
relevant procedure for enforcement of an order is provided under Section 125 (3) read with Sec 128 of the
Code.

If any person against whom an order of maintenance is passed fails to furnish the amount with registry of
the court within the stipulated period, the claimant can make an application before the court of Judicial
Magistrate of the First Class to enforce the order of maintenance and order the person to adhere to the
previous order and make the due payment.

The essential ingredients under this provision are:

· The application can be made in any court of Judicial Magistrate with the certified copy of the
order of maintenance irrespective of the jurisdiction of the court
· The application must be made within 1 year of the date of default of payment
 · The person who fails to make payment of maintenance must not have sufficient reasonable
grounds for doing so.
· The court, if satisfied that the non-compliance of the order was without sufficient reason, will
issue a warrant of arrest against such person.
· The defaulting person can be sent to imprisonment for 1 year or until he makes the payment
whichever is earlier.
· The defaulting cannot put any unreasonable condition for payment of such money. For
instance, if the person asks his wife to stay with him and she has reasonable cause to deny, he
cannot evade payment saying the condition was not fulfilled.

In Ram Bilas v. Bhagwati Devi, the court laid down the rule that for recovery of one year's maintenance,
the person is sentenced to one month's imprisonment; for one month's accrued maintenance, the
imprisonment shall be of one week. The rule does not bind other courts as it was merely an obiter but,
however, the spirit was to set a fixed system for non-payment of maintenance amount.

Section 128 acquires importance for enforcement of an order of maintenance because this provision
requires the court to provide the claimant with a certified copy of the order of maintenance to the actual
claimant or his/her guardian or any other authorized person to whom the maintenance is payable. The copy
of the order must be provided free of cost and without any delay.

JUVENILE JUSTICE (CARE AND PROTECTION) ACT, 2000

HISTORY OF THE JUVENILE JUSTICE ACT

1. The CrPC of 1898 contained provisions with respect to care and protection of juveniles along with
procedural aspects.
2. Later, States began to enact their own laws regarding juveniles such as the:
i. Bombay Children Act, 1924;
ii. Bombay Children Act, 1948;
iii. U.P. Children Act, 1951;
iv. West Bengal Children Act, 1959;
v. Rajasthan Children Act, 1970;
vi. Bihar Children Act, 1982, and
vii. The Children Act, 1960 applicable to UT’s only.
3. Other enactments on the subject were:
i. The Reformatory Schools Act, 1897;
ii. Bihar Borstal Schools Act, 1962;
iii. Women and Children Institutions (Licensing) Act, 1956.
4. There were some major amendments to the CrPC in 1973 such as:
i. The age of a minor increased from 15 years to 16 years.
ii. S. 27 stated that any offence not punishable with death or imprisonment
for life by a person below the age of 16 years may be brought before the CJM or
special court or special officer under the Children’s Act.
5. Treatment, training an rehabilitation was used instead of custody and trial.
 6. The National Policy for Children came into existence in 1974.
7. The Children Act of 1960 was reviewed and the Juvenile Justice Act, 1986 was enacted, replacing
the Childrens Act.
8. S. 4 of the CrPC lays down that the procedure regarding the procedure, inquiry and trial of the
offender. However, if any law provides for any special procedure the same shall be followed.
9. The JJA is more of a procedural law and overrides certain provisions of the NDPS Act, TADA,
Dacoity Affected Areas Act, National Securities Act.
10. The JJA was majorly amended and the 1986 was repealed and now the Juvenile Justice (Care and
Protection of Children) Act, 2000 has been enacted.

FUNDAMENTAL PRINCIPLES OF JUVENILE JUSTICE

The following principles shall, be fundamental to the application, interpretation and implementation of the
Act and the rules made hereunder:

1. Principle Right to Innocence.

i. A juvenile or child or juvenile in conflict with law is presumed to be
innocent of any malafide or criminal intent up to the age of 18 years.

ii. The juvenile or juveniles in conflict with law or child's right to

presumption of innocence shall be respected throughout the process of justice and
protection, from the initial contact to alternative care, including aftercare.

iii. Any unlawful conduct of a juvenile or a child or a juvenile in conflict with law
which is done for survival, or is due to environmental or situational factors or is
done under control of adults, or peer groups, is ought to be covered by the
principles of innocence.

iv. Example: Doli incapax under IPC where a child is given absolute
immunity.

2. Principle of Best Interest:

i. In all decisions taken within the context of administration of juvenile
justice, the principle of best interest of the juvenile or the juvenile in conflict with
law or child shall be the primary consideration.
ii. The principle of best interest of the juvenile or juvenile in conflict with
law or child shall mean for instance that the traditional objectives of criminal
justice, retribution and repression, must give way to rehabilitative and restorative
objectives of juvenile justice.
iii. This principle seeks to ensure physical, emotional, intellectual, social and moral
development of a juvenile in conflict with law or child so as to ensure the safety,
well being and permanence for each child and thus enable each child to survive
and reach his or her full potential

3. Principle of Family Responsibility

i. The family - biological, adoptive or foster (in that order), must be held
responsible and provide necessary care, support and protection to the juvenile or
 child under their care and custody under the Act, unless the best interest measures
or mandates dictate otherwise.

4. Principle of Safety (no harm, no abuse, no neglect, no exploitation and no maltreatment):

i. At all stages, from the initial contact till such time he remains in contact
with the care and protection system, and thereafter, the juvenile or child or juvenile
in conflict with law shall not be subjected to any harm, abuse, neglect,
maltreatment, corporal punishment or solitary or otherwise any confinement in
jails and extreme care shall be taken to avoid any harm to the sensitivity of the
juvenile or the child.
ii. The state has a greater responsibility for ensuring safety of every child in
its care and protection, without resorting to restrictive measures and processes in
the name of care and protection.

5. Principle of non-stigmatizing semantics, decisions and actions:

i. The non-stigmatizing semantics of the Act must be strictly adhered to, and
the use of adversarial or accusatory words, prohibited in the processes pertaining
to the child or juvenile in conflict with law under the Act, such as,
a. arrest,
b. remand,
c. accused,
d. charge sheet,
e. trial,
f. prosecution,
g. warrant,
h. summons,
i. conviction,
j. inmate,
k. delinquent,
l. neglected,
m. custody or
n. jail.

6. Principle of Balancing

i. It aims to balance both the Act and the Constitutional safeguards and social
ethics in dispensing matters relating to juveniles.

7. Principle of non-waiver of rights

 i. It means that there shall be no waiver of rights by the juvenile himself or
the competent authority or anyone acting on behalf or claiming to act on behalf of
the juvenile or child. Actions otherwise shall not be permissible.

8. Principle of right to privacy and confidentiality:

i. The juvenile's or child's right to privacy and confidentiality shall be

protected by all means and through all the stages of the proceedings and care and
protection processes.

9. Principle of last resort:

i. Institutionalization of a child or juvenile in conflict with law shall be a step

of the last resort after reasonable inquiry and that too for the minimum possible
duration.

10. Principle of repatriation and restoration:

i. Every juvenile or child or juvenile in conflict with law has the right to be
re-united with his family and restored back to the same socio-economic and
cultural status that such juvenile or child enjoyed before coming within the
purview of the Act or becoming vulnerable to any form of neglect, abuse or
exploitation.

11. Principle of Fresh Start

i. The principle of fresh start promotes new beginning for the child or
juvenile in conflict with law by ensuring erasure of his past records.
ii. The State shall seek to promote measures for dealing with children alleged
or recognized as having impinged the penal law, without resorting to judicial
proceedings.

12. Principle of Equality

i. The shall be an equality of access and opportunities; no discrimination on

the basis of sex, age, caste, place of birth, work activity, disability, status, cultural
activity or his parents or guardian including civil or political status shall be done.

JUVENILE: MEANING AND DEFINITION

 1. Section 2(e) of the 1986 Act states that a “delinquent juvenile” means a juvenile who has been
found to have committed an offence.
2. Section 2 (c) of the 2000 Act gives the definition of “juvenile in conflict with the law” as a juvenile
who is alleged to have committed an offence and who has not completed 18 years of age as on date
of commission of the offence.

APPREHENSION AND PRODUCTION

1. S. 2 (k) states that a juvenile is a person who has not completed 18 years of age.
2. A juvenile in conflict with the law must be produced before the Juvenile Justice Board.
3. Section 10 of the Act states:
i. As soon as a juvenile in conflict with law is apprehended by
police, he shall be placed under the charge of the Special Juvenile Police
unit or the Designated Police Officer who shall immediately report the
matter to a member of the Board and the juvenile must be produced before
the Board within 24 hours.
ii. Such juvenile shall be received and interviewed in a friendly
manner. Further, a juvenile cannot be interrogated for more than 24 hours.
iii. Further the juvenile shall be sent to an observation home.
4. Section 2(o) defines observation home as a home established by the State Government or by a
voluntary organisation and certified by the State Government in this regard.
5. The decision taken by any member of the Board shall be ratified by another member as per Section
5(2).
6. The juvenile however cannot be kept in police lock-up.
7. Section 13 further elucidates on providing information to the parent, guardian or the Probation
Officer. As soon as the juvenile is arrested, the officer in charge of the police station or the special
juvenile unit shall inform the parent, guardian or the Probation Officer. He shall then be directed
to be present before the Board.
8. The Probation Officer shall at this time check the background of the juvenile and other material
information that will assist the Board in making their decision.
9. Section 11 states that the person in whose charge the juvenile is will have control over the juvenile
as he would if he were his parents and shall be responsible for his maintenance.
10. Even if an application is made by the parents or guardian of the juvenile for his custody, the same
may be rejected and custody will remain with such authority.

Bail of Juvenile (Section 12):

i. Bail may be granted to a juvenile.
ii. This section has an overriding effect over the CrPC.
iii. Bail may be granted with or without surety or the person may be placed under the
supervision of the Probation Officer or under the supervision and care of any fit
person or institution.
iv. There are 3 circumstances under which an application for bail may be
rejected:
a. The release is likely to bring the juvenile in association with known criminals.
b. Such release shall expose the juvenile to moral, physical or psychological danger.
c. Release would defeat the ends of justice.
 v. In the case of Sanjay Kumar v. State of UP, a juvenile was not granted bail whereas
in the case of Mata Prasad v. State of Rajasthan, it was stated that normally a
juvenile in conflict with the law should be released on bail unless there is some
ground to believe that any of the above 3 reasons exist.
vi. In the case of Rahul Misra v. MP, the juvenile was charged with murder
and other sections of the IPC. It was proved that the juvenile was not present at the
scene of the crime at the time the offence was committed. Hence, bail was rejected.
However, the HC stated that dealing with the grant of bail, the juvenile may appear to be
guilty of the offence prima facie, but he was favourably considered and protected for grant
of bail and directed that he be released on bail on execution of a bond.

12. Leave of Absence (Rule 40):

i. In any case leave of absence cannot be given for more than 15 days
excluding the time of the journey.
ii. To sanction leave of absence, the Probation Officer is required to submit
a report to the officer in charge who shall then submit the same to the competent
authority along with the application.
iii. A Probation Officer shall be appointed for granting leave of absence.
iv. The parent or guardian shall be required to escort him from home to home.
v. In situations of emergency (such as death), the officer in charge may escort the
juvenile.
vi. For such leave, a bond is required to be executed, by the juvenile, which
is in the form of conditions to be met with by the juvenile in conflict with law. The
competent authority may insert additional conditions in such bond.
vii. If, in case, the juvenile absconds during such period of leave, then the juvenile will
not get leave subsequently. In case the juvenile does abscond, the parent or
guardian shall be required to inform the officer in charge of the juvenile who shall
then inform the police or competent authority of the same.
viii. Once the juvenile is brought back to the observation home, no proceedings may be
filed against him for running away how many ever times he may do so.

[NOTE: Important questions:

i. How is a case of a juvenile in conflict with the law dealt with? OR

ii. How does a trial of juvenile take place?
Answer: Juvenile: meaning and definition

Apprehension and Production]

JUVENILE JUSTICE BOARD

1. Constitution of the Juvenile Justice Board (JJB) –Section 4

i. JJB shall be set up by the State Government. There shall be one JJB for
each district or one JJB for several districts.
ii. The Board shall consist of 3 members:
 a. One a judicial magistrate or metropolitan magistrate.
b. Two shall be social workers having experience in the field of children, one of
whom shall be a woman.
iii. All the powers of the Judicial Magistrate are conferred on the JJB as per the
provisions of the CrPC.
iv. To become a member of the JJB, the Judicial Magistrate will have to
receive training and he should be qualified with training in child psychology and
child welfare.
v. The term of office of the JJB is as per the rules prescribed by the State Government
from time to time.
vi. A member shall have tenure of 3 years and shall be eligible for re-
appointment for a second tenure only.
vii. A member may be terminated for the following reasons:
a. Misuse of power
b. Guilty of an offence, the judgment having not been reversed on appeal or revision.
c. He has not been given pardon of the Court.
d. If he does not attend meeting for 3 consecutive months
e. If he does not attend 3/4th the sittings of the JJB.
2. For final disposal of a case, it is necessary that at least a 2 member quorum exist to give the decision,
of which one must be the JMFC or Metropolitan Magistrate.
3. If there is a majority is not obtained then the opinion of the principle member or the principle
Magistrate prevails.
4. The powers of the JJB include:
a. To call for documents,
b. To call for witnesses,
c. To issue summons,
d. To check if evidence has been properly recorded.
5. The Jurisdiction of the JJB ousts the jurisdiction of any other criminal court to look into matters
relating to juveniles in conflict with law.

6. Time and Place of sitting of the Board (Rule 4)

i. As far as it is possible, the JJB shall sit in the premises of the observation
home or any other suitable place.
ii. It shall be at such time as prescribed by the Board from time to time.
iii. Sittings shall be held on all working days.

7. Rule 12 allows the State Government to advertise in the news paper for filling the post of JJB
members and any other post calling persons. Such persons are then accordingly listed. Such list
may further be used in case of any casual vacancies or resignations.
8. Such casual vacancy when filled by a new member will allow him to hold a tenure only until the
office of his predecessor.

9. Rule 13 enlists the qualifications of the Chairperson and Members of the JJB
i. Age of a member should not be less than 35 years and shall not exceed 65
years. This does not apply to the JMFC or the Metropolitan Magistrate and he is
directly appointed by the state government.
ii. The JMFC or the Metropolitan Magistrate should have undergone special
training in child psychology and child welfare.
 iii. All members are required to possess a degree in any of the social sciences such as
psychology, sociology, criminology, economics, physic, home sciences, social
work, law, medicine, rural development, etc.
iv. The members shout not be personally connected or associated with any
adoption agency which in is conflict of interest with the Act.
10. It is the duty of the State Government to ensure training of the members of the JJB from time to
time on topics related to children.
11. Rule 13 also method by way of which one may resign.
i. The copy of application for resignation should be given to the state
government and the JMFC or the Metropolitan Magistrate.
ii. Until the state government accepts such resignation he shall remain a
member.
iii. Such resignation shall be given one month in advance.
iv. JMFC or the Metropolitan Magistrate shall directly give their resignation
to the state government.
12. Rule 14 deals with Remuneration or Honorarium to the Members
i. It shall be fixed by the state government.
ii. Members are entitled travelling allowance, meeting allowance, etc. as
would be given to Class I employees.
iii. Such honorarium is paid by the State Government.
13. Section 7 deals with the procedure to be followed by the Magistrate not empowered by the Act.
i. When any Magistrate has knowledge that the person before it is a juvenile
(except a child witness), he shall record the finding of such opinion and forward
the juvenile to the concerned competent authority.
ii. The competent authority shall then deal with the juvenile as if the juvenile
had originally been brought before it.
14. Section 7A of the JJA was inserted by way of amendment of 2006 which deals with the defence of
juvenility which may be taken at any stage and can be raised in any court.
i. The court shall make an enquiry and take such evidence to determine the
age of the person.
ii. The evidence which the court shall admit shall not include an affidavit and
shall take into consideration an estimation of the age of the person.
iii. Such defence may be taken even after the final disposal of the case.
iv. When such defence is stated, a medical examination of the person claiming
juvenility is conducted.
v. The court is empowered to call upon an expert to receive his opinion regarding
determination of age of such person.
vi. The court may also appoint a medical examiner and direct him to tender a
report.
vii. If the person is a juvenile then the court shall forward the juvenile to the JJB for
the passing of relevant orders and sentence if passed by the court shall not take
effect.
15. Section 6 is a special section which prevails over other sections. It empowers the HC and the
Sessions Court to exercise the powers conferred on the JJB in case of appeal, revision or otherwise.

INQUIRY

1. Section 3 of the Act deals with continuation of inquiry after the person ceases to be a juvenile.
 i. This is a special provision and prevails over all other provisions of law.
ii. When an inquiry starts and the concerned juvenile in conflict with the law
ceases to be a juvenile during the course of such inquiry, the inquiry maybe
continue and order may be made in respect of such person as if such person
continues to be a juvenile or child.
2. Section 14 deals with inquiry before the Board
i. As far as possible, inquiry must be completed within 4 months from the
date of commencement.
ii. Inquiry is required to be conducted in accordance with the provisions of
the Act.
iii. The Board is given the power to increase the said period for inquiry in special cases
after recording the reasons for the same in writing.
3. Section 47 relates to dispensing with attendance of the juvenile.
i. Normally in a criminal trial, it is mandatory for the person convicted of an
offence to attend the criminal trial all the time.
ii. However, under this section, the Board is empowered to dispense the
presence or attendance of a juvenile in conflict with the law at any stage during the
proceedings.
4. Section 46 empowers the JJB to direct whomsoever it deems fit to attend the proceedings including
the parent, guardian or the child.
5. Section 54(1) lays down the procedure for conducting the inquiry.
i. This section states that when inquiry is being carried out in case of a
juvenile in conflict with the law, if any special procedure is provided by the Act,
the same shall be complied with.
ii. However, if no such procedure has been provided then the procedure as
laid out in the CrPC in summons cases shall be followed.
iii. In the case of B.B. Dasgupta v. State of Punjab it was held that though it is a general
principle of law that the inquiry or trial in each case should be held in presence of
the accused, and the same is applicable even to a juvenile in conflict with the law,
competent authority can dispense the attendance of the juvenile if it deems fit to
do so.

PRESUMPTION AND DETERMINATION OF AGE

1. Section 49
i. The competent authority shall inquire as to the age of the person and fir
that purpose shall take such evidence as may be necessary but does not include an
affidavit.
ii. The authority shall record its findings as to whether a person is a juvenile
or not and state his age as nearly as possible.
iii. Any order passed by such authority stating that a person is juvenile shall not be
invalid and the age recorded shall be deemed to be the age of the juvenile
irrespective of any other evidence proving otherwise, for the purposes of this Act.
2. Rule 6(5) lists the documents which shall be considered admissible
i. Birth certificate given by the corporation.
ii. Birth certificate from the school first attended.
iii. Matriculation or any other certificate which shows the district of birth.
iv. Medical Boards opinion in case any of the above are not available.
 v. Margin of 1 year must be given i.e. plus or minus 1 year.
3. Rule 6(7) states that in case there is a doubt regarding the age of the person, the Board shall pass
an order to obtain the medical opinion regarding the persons age and mental conditions of the child.
4. In the case of Sheela Barse v. UOI, the SC stated that there is controversy regarding the point that
juveniles should be kept in observation homes and not in jail pending their inquiry irrespective of
the fact that the juvenile has crossed the age limit.
5. In the case of Devkinandan Dayma v. UP, the SC held that an entry in the school register as to the
date of birth of the student is admissible as evidence to show whether a person is a juvenile or not.
Its acceptance however, shall depend on probative value of such entry as to whether it is proper or
not.
6. The SC also stated that in case of conflict between a school certificate and medical certificate
regarding the age of the person, the school certificate shall be taken into consideration as the
medical certificate may not be precise.
7. Further in the case of Sunil v. State, the court clarified that the court cannot leave the determination
of the age of the juvenile entirely on the evidence produced by the juvenile, but must make an
inquiry suo moto.
8. In the case of Satbir Singh v. State, the SC reiterated that for the purposes of determination of a
person being a juvenile, the date of birth as recorded in the school register shall be taken into
consideration.

OFFENCES AND PUNISHMENT

S. Secti Type of Offence Particulars Punishment

N on
o.

1 23 Cruelty to Juvenile i. If the person Shall be

. who has actual charge of the imprisoned with
juvenile or control over the imprisonment not
juvenile assaults, abandons, exceeding 6
exposes or wilfully neglects months or fine or
the juvenile or child; or both
ii. Such person in
charge or control causes or
procures him to be
assaulted, abandoned,
exposed or neglected
So as to cause mental or
physical suffering to the
juvenile shall be punishable
2 24 Employing the i. Whoever, Shall be punished
. juvenile for begging emplys or uses any juvenile with imprisonment
or abetting in the or child for the purpose of that may extend to
commission of a begging or causes him to 2 to 3 years and
crime. beg, or fine

ii. Whoever Shall be

having actual charge or imprisoned for a
control of the juvenile abets period not
the commission of such exceeding one year
crime as stated herein shall and fine.
be punished.

3 25 Giving liquor, Whoever gives or causes Imprisonment

. narcotic drugs or giving of intoxicating which shall extend
psychotropic substances in public places, upto 3 years and
substances to a child narcotic drugs or fine.
psychotropic substances to a
juvenile except on an order of
a duly qualified medical
practitioner or in case of
sickness shall be punished.

4 26 Exploitation of a Whoever ostensibly procures

. juvenile or child a juvenile:
employee i. For the
purpose of hazardous
employment; or
ii. Keeps the
juvenile in bondage; or

5 21 Prohibition from i. No report in Penalty which may

. publication of name of any newspaper, magazine extend to Rs.
the juvenile, and other or any visual media of the 25,000.
details. inquiry of a juvenile child
shall be made available.
ii. No
information, picture,
school of the juvenile
shall be made available
that would lead to
identification of the
juvenile except when a
competent authority
 permits in writing the
same in the interest of the
juvenile.

6. Section 27 of the Act states that the offences under S. 23, 24, 25 and 26 shall be cognizable.
7. Section 28 talks about alternative punishment. When an act or omission constitute an offence
punishable under the Act or any other Central or State Act then the offender shall be liable for
punishment to greater degrees of punishment for such offence.
8. The Rules further state that any offence under Section 23 to 26 shall be either bailable or non-
bailable besides being cognisable under the provisions of CrPC and provisions of bail shall apply.

OTHER PROVISIONS RELATING TO THE JUVENILE JUSTICE BOARD

1. Section 15 states what orders the JJB can pass:

i. Allow the juvenile to go home after admonition.
ii. Counselling to the parent or guardian.
iii. Direct the juvenile to participate in group counselling and such similar
activities.
iv. Order the juvenile to perform community service.
v. If the juvenile is over the age of 14 years and earns money, then it can
order that the parent or juvenile pay a fine.
vi. Release him on probation of good conduct under the care of the parent or
guardian when the juvenile signs an undertaking to maintain good conduct or executing a bond
not exceeding 3 years.
vii. Release the juvenile and put him in the care of any fit institution for any
period not exceeding 3 years.
viii. The JJB on satisfaction of the nature and circumstances of the offence may
reduce the period of stay in such fit institution and record the reasons for the same, in writing.
ix. All orders shall be passed only after the JJB goes through the investigation
report prepared by the Probation Officer or any other voluntary organisation appointed for the
same.
x. In addition to sending the child to a fit institution or under the care of the
parent or guardian, a Probation Officer shall be appointed for supervision.
xi. The terms and conditions of the sentence may be varied on basis of the
report of the Probation Officer.
xii. An order may be made to send the juvenile to a special home for a period
not exceeding 3 years.
xiii. The terms of the bond must be explained to the Probation Officer, juvenile,
surety and to the parent or guardian.
 2. Section 16 is a special provision overriding all other provisions which states that the JJB is not
empowered to sentence a juvenile to death or imprisonment for life or commit him to a prison in
default of payment of fine or default in furnishing security.
3. Section 17 is a special overriding provision that states that no order can be passed against the
juvenile under Chapter 8 of the CrPC which deals with good behaviour and keeping peace.
4. Section 18 further states that no joint proceedings of juveniles and a person who is not a juvenile
shall be instituted in a criminal court. The juvenile cannot be charged along with such other person.
The Board may thus order that separate trials may be conducted.
5. Section 19 states that no stigma or disqualification can be attached to a juvenile if found guilty for
an offence.
6. Further, Rule 58 the record and proceeding against a juvenile shall be destroyed within 5 years.
7. In the case of Lallan Singh v. UP, the SC stated that when trial of the accused is pending (before
the enforcement of the new Act) then the trial shall be concluded in accordance with the provisions
of the old Act. However, if it found that the person is a juvenile then there is no sentence passed by
the trial Court. The Board shall then take over the case.
8. Section 22 states that no action can be initiated nor can any proceedings be instituted against a
juvenile if a juvenile escapes from the observation home.
9. If such juvenile escapes more than once, then new papers shall be produced before the JJB or CWC
which may pass an appropriate order.
10. However, there shall be no enhancement of punishment or increase in his term at the observation
home.

CHILD IN NEED OF CARE AND PROTECTION

1. Section 2 (d) states that a "child in need of care and protection" means a child:
i. who is found without any home or settled place or abode and without any ostensible
means of subsistence,
ii. who resides with a person (whether a guardian of the child or not) and such person-
1. has threatened to kill or injure the child and there is a reasonable likelihood of the threat
being carried out, or
2. has killed, abused or neglected some other child or children and there is a reasonable
likelihood of the child in question being killed, abused or neglected by that person,
iii. who is mentally or physically challenged or ill children or
children suffering from terminal diseases or incurable diseases having no
one to support or look after,
iv. who has a parent or guardian and such parent or guardian is unfit
or incapacitated to exercise control over the child,
v. who does not have parent and no one is willing to take care of or
whose parents have abandoned him or who is missing and run away child
and whose parents cannot be found after reasonable inquiry,
vi. who is being or is likely to be grossly abused, tortured or exploited
for the purpose of sexual abuse or illegal acts,
vii. who is found vulnerable and is likely to be inducted into drug
abuse or trafficking,
viii. who is being or is likely to be abused for unconscionable gains,
 ix. who is victim of any armed conflict, civil commotion or natural
calamity
2. In the case of Sangeeta Punekar v. Maharashtra
FACTS: In an institution, Prem Sagar, many young girls were sexually abused and even raped by a reverend
named Alfred. Other also apprehended facing the same problems and a case was filed by a social worker
of FACSE (Forum against Child Sexual Exploitation).

HELD: that such children be given protection. Further, the JJB was directed to be set up within 8 weeks of
the judgment and the rules were to be framed and brought into force within 12 weeks.

CHILD WELFARE COMMITTEE

Constitution of the Committee

1. Section 29 of the Act gives the Constitution of the CWC as follows:

i. The State Government may, by notification in Official Gazette,
constitute for every district or group of districts, specified in the
notification, one or more Child
ii. Welfare Committees for exercising the powers and discharge the
duties conferred on such Committees in relation to child in need of care
and protection under this Act.
iii. The Committee shall consist of a Chairperson and four other
members as the State
iv. Government may think fit to appoint, of whom at least one shall
be a woman and another, an expert on matters concerning children.
v. The qualifications of the Chairperson and the members, and the
tenure for which they may be appointed shall be such as may be
prescribed.
vi. The appointment of any member of the Committee may be
terminated, after holding inquiry, by the State Government, if-
a. he has been found guilty of misuse of power vested under this Act;
b. he has been convicted of an offence involving moral turpitude, and such
conviction has not been reversed or he has not been granted full pardon in
respect of such offence;
c. he fails to attend the proceedings of the Committee for consecutive 3 months
without any valid reason or he fails to attend less than 3/4 th of the sittings in a
year.
vii. The Committee shall function as a Bench of Magistrates and shall
have the powers conferred by the Code on a Metropolitan Magistrate or a
JMFC.
2. Any final order passed by the CWC shall be ratified by all the members for final disposal of the
matter.
3. All decisions shall be made by way of majority. In case of a tie, then the decision of the Chairperson
shall prevail.
4. Section 31 enlists the powers of the CWC as follows:
i. The Committee shall have the final authority to dispose of cases
for the care, protection, treatment, development and rehabilitation of the
children as well as to provide for their basic needs and protection of human
rights.
ii. Where a Committee has been constituted for any area, such
Committee shall, notwithstanding anything contained in any other law,
have the power to deal exclusively with all proceedings under this Act
relating to children in need of care and protection.
5. Section 32 along with Rule 8 relates to production of the child in need of care and protection before
the CWC.
i. Any child in need of care and protection may be produced before
the Committee by one of the following persons:
a. any police officer or special juvenile police unit or a designated police officer;
b. any public servant;
c. childline, a registered voluntary organisation or by such other voluntary
organisation or an agency as may be recognised by the State Government;
d. any social worker or a public spirited citizen authorised by the State
Government;
e. by the child himself.
ii. A report along with the child shall be produced before the CWC.
iii. If the child is below the age of 2 years then within 48 hours and if
2 years and above the child shall be produced within 24 hours excluding
the time of the journey.
iv. If the child himself reports of some abuse an inquiry shall be
conducted and the same shall be reported to a Sessions Judge for further
action.
v. The CWC may call for medical reports to determine the age of the
child.
vi. Birth certificate or school records may also be used.
vii. The SC has held for such purposes children plus 2 or minus 2 also
shall be considered. For example, if a child appears to be 20, but appears
before the CWC may also be considered.

6. Section 33 deals with inquiry

i. It states that the Committee or any police officer or special juvenile police unit or the
designated police officer shall hold an inquiry which shall be completed within 4
months.
ii. After the completion of the inquiry if the Committee is of the opinion that the said child
has no family or ostensible support, it may allow the child to remain in the children's
home or shelter home till suitable rehabilitation is found for him or till he attains the
age of eighteen years.
iii. Further in the case of Sunil v. State, the court clarified that the court cannot leave the
determination of the age of the juvenile entirely on the evidence produced by the
juvenile, but must make an inquiry suo moto.
iv. In the case of Satbir Singh v. State, the SC reiterated that for the purposes of
determination of a person being a juvenile, the date of birth as recorded in the school
register shall be taken into consideration.
 v. In the case of Sheela Barse v. UOI, the SC stated that there is controversy regarding the
point that juveniles should be kept in observation homes and not in jail pending their
inquiry irrespective of the fact that the juvenile has crossed the age limit.
vi. In the case of Prabhunath v. Bihar, the SC stated that in case of a trial of a juvenile, the
trial court shall suo moto hold an inquiry as to determine the exact age of the juvenile
and eliminate any kind of dispute regarding the eligibility of the person to be tried under
the Act.

HOMES AND INSTITUTIONS

1. Children’s Homes (Section 34)

i. Section 2 (e) states that children’s home means an institution established by a State
Government or by voluntary organisation and certified by that Government under
section 34
ii. The State Government may establish and maintain either by itself or in association with
voluntary organisations, children's homes, in every district or group of districts, , for
the reception of child in need of care and protection
a. during the pendency of any inquiry and
b. subsequently for their care, treatment, education, training, development and
rehabilitation.

iii. Rule 16 furtehr states that the children’s home shall be according to age groups of
: 0 to 6 years; 7 to 12 years and 12 to 18 years.

2. Special Homes (Section 9)

i. Section 2 (v) states that "special home" means an institution established
by a State Government or by a voluntary organisation and certified by that
Government under section 9.
ii. Any State Government may establish and maintain either by itself or under
an agreement with voluntary organisations, special homes in every district or a
group of districts, as may be required for reception and rehabilitation of juvenile
in conflict with law under this Act.
iii. Where the State Government is of opinion that any institution other than a home
established or maintained, it may certify such institution as a special home for the
purposes of this Act.
iv. Rule 15B further states that there must be age groups formed for special
homes as follows: 8 to 12 years, 13 to 16 years and 17 to 18 years.

3. Fit Institutions
i. Section 2 (h) states that a fit institution is one means a governmental or a
registered non-governmental organisation or a voluntary organisation prepared to
own the responsibility of a child and such organisation is found fit by the
competent authority;

4. Observation Home
 i. Section 2(o) states that an "observation home" means a home established
by a State Government or by a voluntary organisation and certified by that State
Government under section 8 as an observation home for the juvenile in conflict
with law.
ii. Any State Government may establish and maintain observation homes in
every district or a group of districts, as may be required for the temporary reception
of any juvenile in conflict with law during the pendency of any inquiry regarding
them under this Act.
iii. Every juvenile who is not placed under the charge of parent or guardian and is sent
to an observation home shall be initially kept in a reception unit of the observation
home for preliminary inquiries.
iv. Rule 15 B states classification for juveniles according to his age group,
such as seven to twelve years, twelve to sixteen years and sixteen to eighteen
years, giving due considerations to physical and mental status is mandatory.

5. Shelter Home/Drop in Centres

i. Section 2 (u) states that "shelter home" means a home or a drop-in-centre
set up under section 37.
ii. It is a temporary arrangement by way of which a child in need of care and
protection is kept before producing them before the CWC.

REHABILITATION AND SOCIAL INTEGRATION

Section 40: Process of rehabilitation and social reintegration.-

1. The rehabilitation and social reintegration of a child shall begin during the stay of the child in a
children's home or special home and the rehabilitation and social reintegration of children shall be
carried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship, and (iv) sending the child
to an after-care organisation.

Section 41: Adoption.-

1. The primary responsibility for providing care and protection to children shall be that of his family.
2. Adoption shall be resorted to for the rehabilitation of such children as are orphaned, abandoned,
neglected and abused through institutional and non-institutional methods.
3. SC Guidelines and CARA Rules must be followed.
4. The State Government shall set up adoption agencies.
5. A child cannot be given for adoption until a court order has been passed (amendment 2006)
6. Courts shall pass an order as to whether a child can be put up for adoption after due inquire and
shall declare the child legally free for adoption.
7. The children's homes or the State Government run institutions for orphans shall be recognised as
adoption agencies both for scrutiny and placement of such children for adoption.
8. No child shall be offered for adoption-
i. until two members of the Committee declare the child legally free
for placement in the case of abandoned children,
ii. till the two months period for reconsideration by the parent is over
in the case of surrendered children, and
 iii. without his consent in the case of a child who can
understand and express his consent.
9. The Board may allow a child to be given in adoption-
i. to a single parent, and
ii. to parents to adopt a child of same sex irrespective of the number
of living biological sons or daughters.
10. Rule 78 gives certain guidelines to be followed in adoption. They are:
i. Parents may adopt a child of same sex irrespective of the number of living
biological sons or daughters.
ii. Final orders are passed by the Court of Sessions.
iii. State shall set up voluntary organisations or adoption agencies which may be
recognised by the Government only for the adoption of children.
iv. In case of inter-country adoption CARA Rules need to be followed.
v. The Committee must declare that the child is legally free for adoption and must be
signed by 2 members at least.
vi. Committee must conduct an independent inquiry and receives a report
from the Probation Officer within a period of one month.
vii. Committee shall make a declaration in the newspaper, TV, radio, etc. regarding
the child. One shall be a leading newspaper and another regional language paper.
viii. After one month of notification the child shall be legally free for adoption. Such
period runs concurrently with appointing a Probation Officer, case worker,
notification, etc.
ix. If the child is below 2 years the Committee shall give a certificate
regarding the child being legally free within 6 weeks else within 3 months.
x. A child above 7 years cannot be given for adoption unless he consents to the same
if he is capable of understanding the same and expressing consent.
xi. The agencies can call the parents or the guardian for counselling and if not
a document is executed by these persons, which may be submitted to the agency
and finally an application is filed with the court.
xii. 2 month period is given to the birth parents for reconsideration.
xiii. If after 2 months the parents do not reply, the child shall only be given to foster
care and then for adoption.
11. Role of JJB
i. JJB shall conduct an inquiry on receipt of the application.
ii. 2 members shall adjudicate on the matter, one of whom shall be the
principle magistrate.
iii. In case the date of birth is not fixed, the JJB shall set a date which shall be deemed
to be the date of birth for future purposes.
iv. Adoption orders shall be given within 2 months of filing of the application.
v. There shall be a periodic follow up of such children and shall take place within 3
years.
vi. For the first year, there shall be 2 follow ups and for the second year there
shall be one follow up.

Foster care.-

1. The foster care may be used for temporary placement of those infants who are ultimately to be
given for adoption.
 2. In foster care, the child may be placed in another family for a short or extended period of time,
depending upon the circumstances where the child's own parent usually visit regularly and
eventually after the rehabilitation, where the children may return to their own homes.
3. Rule 79:

i. Such period shall not exceed 4 months if meant for a short term. If meant
for a long term shall not exceed 5 years.

ii. The following conditions must be kept in mind:

a. Whether the family is emotionally stable.

b. Whether adjustment is possible.

c. Whether the family has a sufficient income.

d. Income should not be less than Rs.5000

e. Whther the family is willing to take the child for regular medical check ups.

f. Area in which the family resides

iii. In respect of the foster mother, the following conditions must be kept in mind:

a. Whether she is willing to take training and orientation programs

b. She is physically, mentally and emotionally stable

c. Willing to follow rules

d. Must have some experience in child care.

iv. There shall be regular visits by the Probation Officer or any other officer
appointed in this regard.

Sponsorship

1. Section 43 states that programs will be provided in order to support family, children’s homes,
special homes and to meet certain expenses such as medical, nutritional, educational and other
needs of children with a view to bring equality in the life style of the child.
2. There are 3 types of sponsorships: individual, group and community.
3. Rule 80 further states that a sponsorship account shall be kept and maintained in respect of the
receipts and payments made of the sponsorship.

After care institutions

1. These are set up to help those above the age of 18 years to live an honest, industrious and useful
life.
2. A juvenile who is of the age of 17 years and who has not completed 18 years shall be allowed to
stay in such organisations.
3. They may stay in such institutions till the age of 21 years.
4. Rule 18 relates to formation of peer groups.
 5. There is one leader of such peer groups who help those children find jobs suitable to their age.
6. This leader may be a Probation Officer or an ex-member of the organisation.
7. The Probation Officer shall then give a report regarding what help was afforded to the juveniles to
reintegrate him into society. Such report shall be given to the head of the organisation.

APPEAL AND REVISION

Section 52: Appeals

1. Appeal from the CWC or the JJB lies to the Court of Sessions.
2. Such appeal shall be filed by the party so aggrieved with the order of the JJB or CWC within 30
days of their decision.
3. When there is an order of acquittal passed by the JJB or the CWC realises that the child is not
neglected, no appeal shall lie.
4. No second appeal lies from the order passed by the Court of Sessions.
5. In the case of Shri Ram Chit Fund Investments Pvt. Ltd. v. M. Krishnan, it was held that a delay
may be condoned if the court finds that there was sufficient reason for filing a delayed appeal. Any
cause beyond the control of the person is generally accepted as sufficient cause to extend the
limitation period for appeal. These include – death of a person in the family, serious illness, natural
calamity, etc.
6. In the case of Sunder Theatres v. Allahabad Bank, it was held that filing of appeal in the improper
court was sufficient cause to condone delay.

Section 53: Revision

1. The HC has revisionary powers under this Act.

2. The HC may suo moto or by way of application in this regard, call for the records of the JJB, CWC
or the Sessions Court, in order to satisfy itself of the legality or propriety of the order passed.
3. If there is no legality or propriety of the order passed, such order cannot be passed.
4. No pre-judicial order can be passed and therefore results in such person being heard.

Section 54: Procedure

1. The Code of Criminal Procedure shall be applied by the Sessions Court or the HC.
2. A competent authority shall follow the CrPC which is applicable to a trial as in a summons case
unless there is some other special provision.
3. The procedure for appeal or revision shall be as far as possible that which is laid down in the Code
unless there is some other special provision.
Section 55: Power to amend orders

1. Only errors may be rectified to the extent of grammatical errors, arithmetic errors or exclusion,
either suo moto or by way of application.

Section 20 and Section 63

1. S. 20 states that when a case is pending before a criminal court, the same shall be treated as if the
Act was not in force.
2. S. 63: Juveniles shall be kept in special homes before the passage of the Act
3. Further in the case of Sheela Barse v. UOI, it was held that juveniles shall not be kept in lock-up.
4. However, he shall not be kept there for the remainder of his sentence if convicted before the
commencement of the act.
5. The SC held in the case of Lallan Singh v. UP, where the trial of the accused is pending before the
enforcement of the 2000 Act, then the trial has to be concluded in accordance with the old act. If it
is concluded that the person accused is a juvenile, the trial court shall not pass any order and such
person shall be forwarded to the Board which shall pass appropriate orders.

Section 69: Repeal and Savings

1. When the JJ Act, 2000 shall come into force, the JJ Act, 1986 shall be repealed.
2.

CASE LAWS FOR ANALYSIS

1) A.N. Roy, Comissioner Of Police & Ors. v. Suresh Sham Singh

RELATED PROVISION: Section 20 of CrPC – Executive Magistrate
FACTS:
After the enactment of the Immoral Traffic (Prevention) Act, 1956, the Maharashtra Government
in order to curtain the increasing number of cases of trafficking of minor girls and women in the
city of Bombay, through a Notification, conferred the powers District Magistrate within the metropolitan
area of Brihan Bombay upon Commission of Police of Bombay under Section 20 (1), (2) and (5) of the
Code for the purposes of Sections 18 and 20 of the Act. This Notification was challenged in the High Court
of Bombay, wherein it was quashed and thus an appeal was made before the Supreme Court.
ISSUE:
Whether under sub-sections (1), (2) and (5) of Section 20, Cr. P.C., State Government has power to appoint
Commissioner of Police in a metropolitan area as Executive Magistrate and further appoint him as
Additional District Magistrate to have powers of District Magistrate for purposes of Sections 18 and 20 of
Immoral Traffic (Prevention) Act?
HELD:
The Court went on to read Section 20 of the Code and held that the State Government was correct in making
the appointment in the current case. The Court held that the State Government has power to Executive
magistrates as many persons as it thinks fit, who can be appointed as Additional District Magistrate and
such Magistrate shall have the powers of a District Magistrate under the Code or under any other law for
the time being in force as may be directed by the State
Government.
Thus, the State Government is not precluded from appointing the Commissioner of Police in a metropolitan
area as an Executive Magistrate and once appointed as Executive Magistrate, he can be appointed as an
Additional District Magistrate, who shall have the powers of the District Magistrate for the purposes of
Sections 18 and 20 of the Act. Further, Section 20 (5) states that nothing in this section shall preclude the
State Government from conferring under any law for the time being in force, on Commissioner of Police,
all or any of the powers of an Executive Magistrate in relation to a metropolitan area. Thus, the Court upheld
the notification and held that the Commissioner of Police could be appointed as District Magistrate for the
purposes of the Act under Section 20 of the Code.

2) Madhu Limaye v. Sub-Divisional magistrate

RELATED PROVISION: Constitutionality of Section 144
FACTS:
Writ Petition filed before Supreme Court to look into the constitutionality of Section 144 and
Chapter VIII of the Cr. PC which was looked into by a Constitutional Bench.
ISSUES:
1. Whether powers conferred to Magistrate under Section 144 are constitutionally valid?
2. Whether Chapter VIII of the Cr. PC is constitutionally valid?
HELD:
The Court held that Section 144 only confers powers to issue Orders only in urgent cases of nuisance or
apprehended danger. Such Orders are to be made by specified classes of Magistrate on existence of
sufficient ground for proceeding under Section and where immediate prevention or speedy remedy is
desirable. The impugned provision is directed against those who attempt to prevent exercise of legal rights
by others or imperil public safety and health. The nexus of having Section 144 is urgency of situation, its
efficacy in likelihood of being able to prevent some harmful occurrences. For an order to be passed under
Section 144, Emergency must be sudden and consequences sufficiently grave. The Court held that the
power under Section 144 are to be used in judicial manner. Sufficient safeguards should be available to
person affected by Order.
According to the Court, the Provision itself imposes reasonable restrictions. The Court held that Section
144 is not unconstitutional if properly applied and the fact that it may be abused no ground for striking it
down.
Further on the question of Constitutional validity of Chapter VIII, the Court held that the aim of the Chapter
is prevention of crimes and disturbance of public tranquility and breach of peace. The Court held that the
provisions were essentially conceived in interest of public order and in interest of general public and were
not contrary to Article 19 (1) (a), (b), (c) and (d) and are thus Constitutionally valid.
3) M. Krishnamurthy v Sub-divisional magistrate

RELATED PROVISION: Scope of judicial review of orders passed by Executive Magistrate

under Section 107 read with Section 111 of the CrPC.
FACTS:
In this case, two groups "A" party and "B" party, lodged complaints against each other before the Inspector
of Police, Gandhikuppam Police Station. According to the members of "A" party, the land measuring 1.38
acres belongs to them and the members of "B" party are contending that the said land belongs to
Bharathamatha Temple and were asserting their right to hold the Mahabaratham festival. The police,
apprehending a breach of peace, registered an FIR and forwarded a report to the Executive Magistrate-cum-
Revenue Divisional Officer for initiating proceedings u/s 107 Cr.P.C
. Based on the report submitted by the police, the Executive Magistratecum-Revenue Divisional Officer
passed an order u/s 111 Cr.P.C. calling upon the members of "A" party to show cause, either in person or
through an Advocate, as to why they should not be directed to give a bond for Rs.10,000/- for a period of
six months. Challenging the said order, the members of "A" party, approached the High Court.
ISSUES:
1. Is a previous incident a sine qua non for initiating Section 107 of the CrPc proceedings?
2. Can proceedings under Section 107 of the CrPC be initiated even before an incident that is
likely to disturb the peace or public tranquillity takes place?
3. Should a show-cause order issued under Section 107 of the CrPC reflect that the Magistrate
has assessed the truth of the information and the need for taking action?
4. Can a show cause order under Section 107 of the CrPC be per se subjected to judicial review?
HELD
The Court held that a show cause order under Section 107 of the CrPC can be subjected to judicial review
under Section 482 of the CrPC or Article 226 of the Constitution of India if the order does not satisfy the
minimum requirements of Section 111 or that the same has been passed by a person who is not an Executive
Magistrate and not otherwise. The High Court may intervene only and only if the order does not contain
the substance of the information received, the amount of the bond to be executed, the term for which it is
to be in force, and the number, character and class of sureties.
The Court explained that Judicial review of the order passed u/s. 111 of the CrPC is very limited, as the
order u/s. 111 merely mandates the Executive Magistrate to give the substance of information that had led
him to form an opinion to initiate proceedings u/s. 107 of the CrPC. This Section also does not contemplate
that the Magistrate should record his opinion or give reasons for initiating proceedings. This is so because,
Section 107 r/w 111 is not the be all and end all of the proceedings and is merely a preliminary step in the
proceedings.

4) Madhu Limaye vs. The State of Maharashtra

RELATED PROVISION: Powers of High Court

FACTS:
In a press conference held at New Delhi the appellant had made certain statements and handed over a "press
hand-out" containing allegedly some defamatory statements concerning Shri A. R. Antulay, the then Law
Minister of the Government of Maharashtra. The said statements were published in various newspapers.
The State Government decided to prosecute the appellant for an offence under Section 500 of the Indian
Penal Code as it was of the view that the Law Minister was defamed in respect of his conduct in the
discharge of his public functions.
Sanction in accordance with Section 199(4)(a) , a complaint was filed in the Court Of the Sessions Judge,
Greater Bombay.
Shri Madhu Limaye, the appellant, filed an application to dismiss the complaint on the ground that the
Court had no jurisdiction to entertain the complaint. The stand taken on behalf of the appellant was that
allegations were made against Shri Antulay in relation to what he had done in his personal capacity and not
in his capacity of discharging his functions as a Minister.
The Sessions Judge rejected all these contentions and framed a charge against the appellant under Section
500 of the Penal Code. The appellant, challenged order of the Sessions Judge in revision filed by him in the
High Court. The High Court without entering into the merits of any of the contentions raised by the
appellant, it upheld the preliminary objection as to the maintainability of the revision application. Hence
this appeal was filed in the Supreme Court.

ISSUES
Whether the High Court had power to hear the petition?
HELD
The Supreme Court held that High Court did not consider petition on merit. According to the Court, this
instant case squarely covered by Section 482 where High Court competent to exercise its inherent powers.
High Court is competent to proceed under Section 398 and may invoke its inherent jurisdiction and so
Supreme Court remitted case back to High Court to dispose petition on merit in accordance with law.

5) Medha Patkar v State of M.P - in relation to EXECUTIVE MAGISTRATE

This is a Public Interest Litigation registered pursuant to a letter dated 26.7.2007 from District Jail, Indore,
written by the petitioner on behalf of the people affected by the Sardar Sarovar Project who, while agitating
from their demands for rehabilitation were arrested and detained in the Badwani and Indore Jails.
Alleged that 26 women agitators and 1 child of seven years of age were brought from police custody of
Badwani and about 200 men agitators and 10 children were also arrested along with them using immense
police force. further stated that they were all arrested at around 6.00 p.m. from the place of their agitation
called Jamin Hak Satyagrah for giving land to adiwasis, farmers, fishermen, labourers as per the Narmada
Water Dispute Tribunal (NWDT) award, the policy of the State Government of Madhya Pradesh and the
orders passed by the Supreme Court. alleged that all the agitators were forcibly removed from the place of
agitation and women and children were badly beaten up by the Police and some also received wounds and
that the banners, tents and other documents of the agitators were destroyed by the Police.

RULING AND ANALYSIS

petitioner and other agitators were exercising their fundamental rights to freedom of speech and expression
and to assemble peaceably and without arms guaranteed under Articles 19(1)(a) and 19(1)(b) of the
Constitution, when they had assembled on the road and were shouting slogans demanding land for land and
demanding other rehabilitation measures and there was nothing in their conduct to show that they had any
design to commit a cognizable offence the commission of which had to be prevented by their arrest by the
Police under Section 151 Cr.P.C. , and yet they were forcibly dragged by the Police and put in the van.
Find that although the petitioner and other agitators had done nothing to give rise to even an apprehension
that they will disturb the public tranquillity, public peace or public order and yet the SDM, Badwani insisted
upon the petitioner and other agitators to execute personal bonds under Section 107 Cr.P.C. and on refusal
on the part of some of the male and female agitators to furnish such personal bonds under Section 107
Cr.P.C., the SDM, Badwani, sent the male agitators to the Jail at Badwani and the female agitators to the
Jail at Indore
Peitioners had done nothing to give rise to even an apprehension that they will disturb the public tranquillity,
public peace or public order and the detention of the petitioner and other agitators in Badwani and Indore
Jails on refusal on the part of the petitioner and other agitators to execute such bond during is wholly without
the authority of law and was in violation of their fundamental right guaranteed under Article 21 of the
Constitution.

It was ruled that this section, with respect to “EXECUTIVE MAGISTRATE aimed to be preventive over
being punitive, confers the Executive Magistrates with enormous powers in order to take prompt action in
case of an emergency, but in a way as strictly prescribed by law. This is equally important so as not to barge
in on the liberty of the person who has been accused.

6) Joginder Kumar vs. State of U.P. and Ors.

RELATED PROVISION: Constitutional scope and enforcement of fundamental rights during an
arrest.
FACTS:
The Senior Superintendent of police, Ghaziabad, Respondent No. 4 called the Petitioner (an
advocate) in his office for making enquiries in some cases. When the brother of the Petitioner made
enquiries about the Petitioner, he was told that the Petitioner will be set free in the evening after making
some enquiries in connection with a case.The brother of the Petitioner being apprehensive of the intentions
of Respondent No. 4, sent a telegram to the Chief Minister of U.P. apprehending his brother's implication
in some criminal case and also further apprehending the Petitioner being shot dead in a fake encounter.
It later came to be known that Petitioner is detained in illegal custody of 5th Respondent SHO, P.S.
Mussoria. It was informed that the 5th Respondent was keeping the Petitioner in detention to
make further enquiries in some cases. So far as Petitioner has not been produced before the
concerned Magistrate and the 5th Respondent directed the relative of the Petitioner to approach
the S.S.P. Ghaziabad for release of the Petitioner. When the brother of Petitioner along with relatives went
to P.S. Mussorie enquired about the well-being of his brother, it was found that the Petitioner had been
taken to some undisclosed destination. The petitioners thus approached the Supreme court under Art. 32
for the Petitioner’s release.

ISSUES
1. Whether the arrest of the petitioner was legally valid?
2. Whether some safeguards are to be followed when making an arrest?

HELD
The Court held that no Arrest can be made in a routine manner on a mere allegation of commission of an
offence against a person. Arrest cannot be made without a reasonable satisfaction reached after some
investigation is made as to the genuineness of the complaint merely on suspicion of complicity in an offence
a person is not liable to be arrested Constitutional rights of the person have to be protected.
No arrest can be made just because it is lawful for the Police Officer to do so. The existence of the power
to arrest is one thing but the exercise of the power has to be justified. No arrest should be made without a
reasonable satisfaction reached after some investigation as to the genuineness of a complaint and a
reasonable belief both as to the person's complicity and even so as to the need to effect arrest.
A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some
reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and
justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to a person
to attend the Station House and not to leave Station without permission.
Further the court looked at Articles 21 and 22 Constitution of India in order to interpret the rights
of a person when being arrested. The Court mentioned that An arrested person has a right, upon
request, to have someone informed and to consult privately with a lawyer. These rights are inherent under
Articles- 21 and 22(1). The Court issued Directions to effectively enforce these fundamental rights under
which when the arrested person is produced, Magistrate has to satisfy himself that the requirements have
been complied with.
For effective enforcement of these fundamental rights, we issue the following requirements:
1) An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other
person who is known to him or likely to take an interest in his welfare told as far as is practicable that he
has been arrested and where is being detained.
2) The Police Officer shall inform the arrested person when he is brought to the police station of
this right.
3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These
protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.
4) It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy
himself that these requirements have been complied with the above requirements shall be
followed in all cases of arrest till legal provisions are made in this behalf.

7) Sheela Barse vs. State of Maharashtra

RELATED PROVISION: Case concerning women prisoners and detainees in State of
Maharashtra
FACTS:
This writ petition is based on a letter addressed by Sheela Barse, a journalist, complaining of
custodial violence to women prisoners whilst confined in the police lock up in the city of Bombay.
The letter was written after she interviewed fifteen women prisoners in the Bombay Central Jail
with the permission of the Inspector General of Prisons and five of them told her that they had been
assaulted by the police in the police lock up. Of these five who complained of having been assaulted by the
police, the petitioner particularly mentioned the cases of two who were allegedly assaulted and tortured
whilst they were in the police lock up.

ISSUES
Whether safeguards have to be placed for protecting the fundamental rights women prisoners and
detainees in State of Maharashtra?

HELD
The Court reiterated right to legal aid to under trial and convicted persons and issued certain
direction for providing fast and efficient legal assistance to prisoners in jail and to provide
protection to women prisoners in lock-ups.
GUIDELINES:
(i) We would direct that four or five police lock ups should be selected in reasonably good
localities where only female suspects should be kept and they should be guarded by female
constables. Female suspects should not be kept in police lock up in which male suspects
are detained.
(ii) We would further direct that interrogation of females should be carried out only in the
presence of female police officers/constables.
(iii) Whenever a person is arrested by the police without warrant, he must be immediately
informed of the grounds of his arrest and in case of every arrest it must immediately be
made known to the arrested person that he is entitled to apply for bail. Hindi and English and printed copies
of the pamphlet in all the three languages shall be affixed in each cell in every police lock up and shall be
read out to the arrested person as he is brought to the police station.
(iv) We would also direct that whenever a person is arrested by the police and taken to the
police lock up, the police will immediately give an intimation of the fact of such arrest to
the nearest Legal Aid Committee and such Legal Aid Committee will take immediate steps
for the purpose of providing legal assistance to the arrested person at State cost provided he is willing to
accept such legal assistance.
(v) a City Sessions Judge, to be nominated by the principal Judge of the City Civil Court, preferably a lady
Judge, if there is one, shall make surprise visits to police lock ups in the city periodically with a view to
providing the arrested persons an opportunity to air their grievances and ascertaining what are the conditions
in the police lock ups and whether the requisite facilities are being provided and the provisions of law are
being observed and the directions given by us are being carried out. If it is found as a result of inspection
that there are any lapses on the part of the police authorities, the City Sessions Judge shall bring them to
the notice of the Commissioner of Police
(vi) We would direct that as soon as a person is arrested, the police must immediately obtain
from him the name of any relative or friend whom he would like to be informed about his
arrest and the police should get in touch with such relative or friend and inform him about
the arrest; and lastly.
(vii) We would direct that the magistrate before whom an arrested person is produced shall
enquire from the arrested person whether he has any complaint of torture or mal-treatment
in police custody and inform him that he has right under Section 54 of the CrPC 1973 to
be medically examined.

8) State of Punjab v Ajab Singh AIR 1953 S. C. 10

This appeal arises out of a habeas corpus petition led by one Ajaib Singh in the High Court of Punjab for
the production and release of one Musammat Sardaran alias Mukhtiar Kaur, a girl of about 12 years of age.
On the report made by one Major Babu Singh, Officer Commanding No. 2 Field Company, S. M. Faridkot,
in his letter, that the petitioner Ajaib Singh had three abducted persons in his possession, the recovery police
of Ferozepore, on June 22, 1951, raided his house in village Shersingwalla and took the girl Musammat
Sardaran into custody and delivered her to the custody of the Officer in charge of the Muslim Transit Camp
at Ferozepore from whence she was later transferred to and lodged in the Recovered Muslim Women's
Camp in Jullundur City. Petitioner filed the habeas corpus petition and obtained an interim order that the
girl should not be removed from Jullundur until the disposal of the petition.

ISSUES
1. Is Central ultra vires the Constitution because its provisions with regard to the detention in refugee
camps of persons living in India violate the rights conferred upon Indian citizens under article 19
of the Constitution ?

2. Is this Act ultra vires the Constitution because in terms it violates the provisions of article 22 of the
Constitution ?

Held: The Abducted Persons (Recovery and Restoration) Act (Act LXV of 1949) does not infringe art.
14, art. 16, art. 19 (1) (d), (e) and (g), art. 21 or art. 22 of the Constitution and is not unconstitutional on
the ground that it, contravenes any of these provisions.
The physical restraint Put upon an abducted person in the process of recovering and, taking that person
into custody without any allegation or accusation of any actual or suspected or apprehended
commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial
to the State or the public interest, and delivery of that person to the custody of the officer in charge
of the nearest camp under s. 4 of the Abducted Persons (Recovery and Restoration) Act (LXV of 1949)
is not arrest and detention within the meaning of art. 22 (1) and (2) of the Constitution.
The said Act does not therefore infringe the fundamental right guaranteed by art. 22 of the Constitution.
255 The fundamental right conferred by art. 22 gives protection ,against such arrests as are effected
otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person
has, or is suspected to have,. committed, or is about or likely to commit, an act of a criminal or quasi-
criminal nature or some activity prejudicial to the public or the State interest. There is indication in
the language of art. 22 (1) and (2) that it was designed to give protection against the act of the executive
or other non-judicial authority. The Blitz Case (Petition No. 75 of 1952) explained. Muslim abducted
persons constitute a well-defined class for the purpose of legislation and the fact that the Act is extended
only to the several States mentioned in s. 1 (2) of the Act does not make any difference, for a classification
may well be made on a geographical basis. The Act does not therefore contravene art. 14 of the
Constitution. If the language of an article is plain and unambiguous and admits of only one meaning, then
the duty of the Court is to adopt that meaning irrespective of the inconvenience that such a construction
may produce. If, however, two constructions are possible then the Court must adopt that which will
ensure smooth and harmonious working of the Constitution and, eschew, the other which will lead to
absurdity or give rise to practical inconvenience or make well established provisions of existing law
nugatory.

9) D.K. Basu vs. State of West Bengal

RELATED PROVISION: Vicarious liability of State in case of infringement of Fundamental
Right by Public Servant
Ratio Decidendi:
"Where right is one guaranteed by State, it is against the State that the remedy must be sought if
there has been a failure to discharge the constitutional obligation imposed."

FACTS:
The Executive Chairman, Legal Aid Services, West Bengal, addressed a letter to the Chief Justice of India
drawing his attention to certain news items published regarding deaths in police lock-ups and custody.
The Executive Chairman submitted that it was imperative to examine the issue in depth and to develop
"custody jurisprudence" and formulate modalities for awarding compensation to the victim and/or family
members of the victim for atrocities and death caused in police custody and to provide for accountability
of the officers concerned.
It was also stated in the letter that efforts are often made to hush up the matter of lock-up deaths and thus
the crime goes unpunished and "flourishes".
It was requested that the letter along with the news items be treated as a writ petition under "public interest
litigation" category. Considering the importance of the issue raised in the letter and being concerned by
frequent complaints regarding custodial violence and deaths in police lock up, the letter was treated as a
writ petition and notice was issued to the respondents.

HELD
The Court held that the claim of citizen was based on principle of strict liability to which defense
of sovereign immunity was not available. Thus, citizen could receive amount of compensation
from the State, which had the right to be indemnified by wrong doer. In assessment of compensation,
emphasis had to be on compensatory and not on punitive elements. According to the Court, monetary or
pecuniary compensation was appropriate and indeed effective in certain cases for redressal of established
infringement of fundamental right to life of citizen by public servants and the State was to be held
vicariously liable for their acts. Thus, said amount of compensation could be adjusted against the amount
awarded to claimant by way of damages in civil suit.

10) Birendra Kumar Rai v union of India

The petitioner has challenged his detention under Section 3(1) of the Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988.The petitioner's contention was that since the impugned
order was passed by the Joint Secretary of the Central Government and not by the Central Government and
under Section 5(a) the place of detention could only be specified by the "appropriate Government" viz. the
Central Government and not by its officer thus order by the Joint Secretary is illegal and void.
The detention of the petitioner was not under any order sentencing him for a long period of time nor he was
under detention in the case of crime under 1985 Act. The satisfaction recorded by the detaining authority
is a subjective satisfaction and this court would not sit in judgment over the satisfaction of the detaining
authority to come to its own conclusion.
It was held that arrest need not be by handcuffing the person, and it can also be complete by spoken words
if the person submit to custody.
The detaining authority having considered all the documents earlier also considered the fact about detenu
having moved the bail application. Thus, this argument also fails. For the findings recorded by us earlier
we do not find any sustainable ground has been raised by the petitioner to hold the detention order to be
illegal. Accordingly, the writ petition fails and is hereby dismissed.

11) G. Kavitha v. Union of India

RELATED PROVISION: Constitutional Validity of Section 64 of CrPC

FACTS:
Miss. G. Kavitha, a practicing advocate is the Petitioner who is involved in social activities especially in
the upliftment of the women and poor sections of the society. Her prayer is for declaration and direction
that Section 64 of the Cr.P.C. is unconstitutional.
ISSUES
Whether Section 64 of the CrPC is unconstitutional on being discriminatory against women

HELD
In the present case, the High Court held that it was contended that provision under Section 64 of
CrPC was against females and It was found that provision omits the word "female". The Court on reading
Section 64 of CrPC held that the provision says that female should not be allowed to
receive summons in absence of summoned person then provision is directed against female but in provision
says only an adult male member and it means it has omitted the word "female".

But there was no specific bar, therefore the same could be considered by the legislature to include the word
"female". If a mother and son alone were residing in the house and if the son was out of station for any
reason, if summons in a criminal case was sought to be served on the son then denying the opportunity of
receiving summons by the mother may create a problem.
When there was no such restriction for mothers to receive summons in civil cases, the Court did not
understand the reason for denial of the same right in a criminal case. There should be uniformity, equality
in treating both. But the Court went on to say that An enactment of legislation could not be struck down
merely by saying that it was arbitrary testing for a particular decision of legislature incorporating provision
was arbitrary, existing circumstances at time of taking decision were to be examined. Therefore, the Court
left this decision to the wisdom of the legislature at national level and the Petition was dismissed.

12) State through C.B.I. vs. Dawood Ibrahim Kaskar and Ors
RELATED PROVISION: Application of Section 73 of CrPC
FACTS:
On March 12, 1993 a series of bomb explosions took place in and around the city of Bombay
which resulted in the death of 237 persons, injuries to 713 persons and damage to properties worth Rs, 27
crores (approximately). Over the explosions 27 criminal cases were registered and on completion of
investigation a composite charge-sheet was forwarded to the Designated Court,
Greater Bombay for commission of various offences punishable under the Indian Penal Code, TADA Act,
Arms Act, Explosives Substances Act, etc.
Designated Court took cognizance and the case registered thereon was numbered as B.B.C. (Bomb Blast
Case) No. 1 of 1993.
The Government of India, with the consent of the Government of Maharashtra, issued a notification
entrusting further investigation in the above cases to Delhi (CBI). After hearing the parties, the Designated
Court, by its order, rejected the applications. The above order is under challenge in these appeals preferred
at the instance of CBI to the High Court, where the Designated Court’s the judgement was upheld after
which the CBI approached the Supreme Court.
ISSUE
When and under what circumstances a Court can invoke the provisions of Section 73

HELD
The Court found that Section 73 of the Code is of general application and that in course of the
investigation a Court can issue a warrant in exercise of power thereunder to apprehend, inter alia,
a person who is accused of a non-bailable offence and is evading arrest. When a Magistrate, on
the prayer of the Investigating Agency holds a test identification parade, records the confession of an
accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc.,
Magistrate does not exercise judicial discretion like while dealing with an accused of a non bailable offence
who is produced before him pursuant to a warrant of arrest issued under Section 73.
On such production, the Court may either release him on bail under Section 439 or authorise
his detention in custody (either police or judicial) under Section 167 of the Code. Whether the
Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police
custody will be at his sole discretion which has to be judicially exercised in accordance with
Section 167(3) of the Code. Since warrant is and can be issued for appearance before the Court
only and not before the police and since authorisation for detention in police custody is neither to
be given as a matter of course nor on the mere asking of the police, but only after exercise of
judicial discretion based on materials placed before him, Mr. Desai was not absolutely right in his
submission that a warrant of arrest under Section 73 of the Code could be issued by the Courts solely for
the production of the accused before the police in aid of investigation.
On the basis of these conclusions the Supreme Court, set aside the impugned order and directed the
Designated Court to dispose of the three miscellaneous applications filed by C.B.I. in accordance with law
and in the light of the observations made herein before.
13) Raghuvansh Dewanchand Bhasin vs. State of Maharashtra and Ors.
RELATED PROVISION: Powers of Magistrates when issuing warrants

FACTS:
Mr. Prem Harchandrai filed a complaint against the Appellant, a practicing Advocate, under Section 324
of the Indian Penal Code, 1860 in relation to some incident alleged to have taken place in the 'Radio Club'
at Mumbai, considered to be a club for the elite. When at a preliminary stage, finding the Appellant to be
absent, the Court issued a non-bailable warrant against him returnable on 31st October, 2002. However, on
Appellant's appearing before the Court, the warrant was cancelled.
The complainant approached the Colaba Police Station and insisted on the arrest of the Appellant in
pursuance of the said non-bailable warrant. Thereupon, Respondent No. 2, posted as an Inspector of Police
at the Colaba Police Station, directed a constable to accompany the complainant, and execute the warrant.
The Appellant informed the constable that the said warrant had already been cancelled. However, he could
not produce any documentary evidence relating to cancellation of warrant; the Appellant was arrested
before a public gathering which had assembled at the Radio Club, in connection with the Independence
Day celebrations.
He was produced before the Magistrate. The Magistrate directed the release of the Appellant as Appellant
obtained the necessary confirmation about cancellation of the warrant on the next day and produced the
same before Respondent No. 2 on the same day.
Alleging malafides and humiliation at the hands in collusion with the complainant, the Appellant
approached the High Court, praying for suitable disciplinary action against Respondent No. 2; adequate
compensation; damages and costs by the said Respondent from his own pocket.

ISSUE
Whether a Non-bailable warrant can be issued just for non-attendance?
HELD
The Supreme Court upheld the judgement of the High Court and found that there was no more
compensation needed. The Court held that the power to issue warrants under Section 70 and 71 of CrPC
has to be exercised judicially and not arbitrarily after looking at facts and circumstances of case by the
Magistrate and issuing of Non-bailable warrant was arbitrary.
As for the defamation caused, the Court held that it is true that the Appellant not only suffered humiliation
in the public gathering, and remained in judicial custody for some time But since he practicing Advocate
himself, he was fully conversant with the court procedure and, therefore, should have procured a copy of
memo/order , whereby the non-bailable warrant was cancelled by the court and so was at fault himself and
so no further award was given to the Appellant.

Further the Court issued certain guidelines which are to be adopted by Courts where non-bailable
warrants issued:
(a)High Court ensures subordinate Courts use printed and machine numbered Form No. 2 for issuing
warrant of arrest and each such form is duly accounted for;
(b) Before authenticating, the court must ensure that complete particulars of the case are mentioned on the
warrant;
(c) The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of
High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that
Court seal bearing complete particulars of the Court is prominently endorsed thereon;
(d) The Court must ensure that warrant is directed to a particular police officer (or authority) and, unless
intended to be open-ended, it must be returnable whether executed or unexecuted, on or before the date
specified therein;
(e) Every Court must maintain a register (in the format given below), in which each warrant of arrest issued
must be entered chronologically and the serial number of such entry reflected on the top right hand of the
process;
(f) No. warrant of arrest shall be issued without being entered in the register mentioned above and the
concerned court shall periodically check/monitor the same to confirm that every such process is always
returned to the court with due report and placed on the record of the concerned case;
(g) A register similar to the one in Clause (e) supra shall be maintained at the concerned police station. The
Station House Officer of the concerned Police Station shall ensure that each warrant of arrest issued by the
Court, when received is duly entered in the said register and is formally entrusted to a responsible officer
for execution;
(h) Ordinarily, the Courts should not give a long time for return or execution of warrants, as experience has
shown that warrants are prone to misuse if they remain in control of executing agencies for long;
(i) On the date fixed for the return of the warrant, the Court must insist upon a compliance report on the
action taken thereon by the Station House Officer of the concerned Police Station or the Officer In-charge
of the concerned agency;
(j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police
officer, so as to facilitate fixing of responsibility in case of misuse;
(k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in
Sections 78 and 79 of the Code must be strictly and scrupulously followed; and
(l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be
recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority,
requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant
will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused.

14) K GOVVIND RAJ VS SUBIAN

On perusal of the impugned order indicates that the trial Court is on the impression that after a lapse of two
years from the date of attachment, it has no power to consider the request to lift the attachment which is not
legally correct. The spirit of Sections 83, 84 and 85 in Cr.P.C is to procure an absconding accused and to
proclaim an offender who is absconding or concealing himself from criminal prosecution. As a plenary
measure, his property is liable to be attached for defying the warrant issued by the criminal Court. At the
same time, if the person procured on subsequent date or he himself surrendered before the Court and makes
his submission that he was not voluntarily absconded or concealed to avoid execution of the warrant, then,
the Court shall order for lifting the attachment

WHETHER THE MANDATORY TIMING OF 2 YEARS UNDER 83(5) IS BINDING ON THE

ALLEGED ABSOUNDER AND WHETHER S5 OF THE LIMITATION ACT IS VALID IN THIS
CIRCUMSTANCE

With great respect to the learned Judges who have rendered the above cited judgments, this Court wish to
state while the attachment of the accused property is made pursuant to a judicial order suggesting the
aggrieved party to approach the executive for remedy is not appropriate. Vesting the property with
Government to review a judicial order passed under Section 83 of the code is alien to Indian legal system.
Order passed under Section 83 is subject to Section 84 and 85 of the code. The Courts are bound to consider
application filed under Section 85 (3) on merits, whether notice of proclamation was properly served on the
party and whether the application filed beyond the two years prescribed under the statute is explained with
reasonable cause. Holding Section 5 of the Limitation Act is not applicable and to direct the aggrieved
person to approach the Government or to file civil suit for remedy will amount to divesting the power of
the Court which has passed the order of attachment to reconsider it, in view of the accomplishment of the
purpose for which the attachment was ordered. Therefore, this Court holds that the above two judgment
relied by the trial Court are not appropriate to the facts and law governing the issue in hand.

To some extent, the order of the trial Court is correct that de hors of the out come of the criminal
proceedings, proclamation for absconding or concealing is an independent cause of action. At the same
time, if reasonable cause shown the attachment made consequent to the proclamation can be raised. The
two years period referred for lifting the attachment cannot be read literally to say the belated application
are not maintainable, even if there is a justifiable cause for not appearing before the Court or for not seeking
relief of raising the attachment after two years. If the petitioner makes out a justifiable cause for filing the
present application after 12 years of attachment and able to convince the trial Court that he has not
absconded himself wantonly, then, the Court has every right to consider the application and lift the
attachment. Procedure is hand maid of justice. The endeavour of the Court should be to render justice by
appropriate interpretation of statute

15) RAJNESH VS NEHA

FACTS

The Respondent No. 1-wife left matrimonial home shortly after the birth of the son-Respondent No. 2. The
wife filed an application for interim maintenance under Section 125 Code of Criminal Procedure on behalf
of herself and the minor son.
The Family Court vide a detailed Order awarded interim maintenance to the Respondent No. 1-wife and
Respondent No. 2-son. The Appellant-husband challenged the Order of the Family Court vide Criminal
Writ Petition filed before the High Court, Nagpur Bench. The High Court dismissed the Writ Petition and
affirmed the Judgment passed by the Family Court.
This Supreme Court issued notice to the wife and directed the Appellant husband to file his Income Tax
Returns and Assessment Orders. He was also directed to place a photocopy of his passport on record. By a
further Order, the Appellant-husband was directed to make payment of the arrears towards interim
maintenance to the wife and a further amount which was due and payable to the wife towards arrears of
maintenance, as per his own admission.
By a subsequent Order, it was recorded that only a part of the arrears had been paid. A final opportunity
was granted to the Appellant husband to make payment of the balance amount, failing which, the Court
would proceed under the Contempt of Courts Act for wilful disobedience with the Orders passed by this
Court.
In the backdrop of the facts of this case, it was fit to frame guidelines on certain aspects pertaining to the
payment of maintenance in matrimonial matters.

HELD
(i) The Judgment and order passed by the Family Court, affirmed by the High Court for payment of interim
maintenance to the Respondent No. 1-wife, and Respondent No. 2-son, was affirmed by this Court. The
husband was directed to pay the entire arrears of maintenance within a period of twelve weeks from the
date of this Judgment, and continue to comply with this Order during the pendency of the proceedings under
Section 125 Code of Criminal Procedure before the Family Court. If the Appellant-husband fails to comply
with the said directions of this Court, it would be open to the Respondents to have the Order enforced under
Section 128 Code of Criminal Procedure, and take recourse to all other remedies which are available in
accordance with law.
(ii) To overcome the issue of overlapping jurisdiction, and avoid conflicting orders being passed in different
proceedings, it had become necessary to issue directions in this regard, so that there was uniformity in the
practice followed by the Family Courts/District Courts/Magistrate Courts throughout the country. It was
directed that
(a). where successive claims for maintenance were made by a party under different statutes, the Court
would consider an adjustment or set-off, of the amount awarded in the previous proceeding/s, while
determining whether any further amount was to be awarded in the subsequent proceeding.
(b) it was made mandatory for the Applicant to disclose the previous proceeding and the orders passed
therein, in the subsequent proceeding.
(c) if the order passed in the previous proceeding/s requires any modification or variation, it would be
required to be done in the same proceeding.
(iii) The Affidavit of Disclosure of Assets and Liabilities annexed of this judgment, as may be applicable,
shall be filed by both parties in all maintenance proceedings, including pending proceedings before the
concerned Family Court/District Court/Magistrates Court, as the case may be, throughout the country.
(iv) For determining the quantum of maintenance payable to an applicant, the Court shall take into account
the criteria enumerated in Part B - III of the judgment. These are
1. Careful and just balance between factors
2. Age of parties
3. Earning capacity
4. Disability
5. Needs of children
(v) The maintenance in all cases will be awarded from the date of filing the application for maintenance.
(vi) For enforcement/execution of orders of maintenance, it was directed that an order or decree of
maintenance may be enforced under Section 28A of the Hindu Marriage Act, 1956 (sic1955), Section 20(6)
of the D.V. Act and Section 128 of Code of Criminal Procedure, as may be applicable. The order of
maintenance may be enforced as a money decree of a civil court as per the provisions of the Code of Civil
Procedure, more particularly Sections 51, 55, 58, 60 read with Order 21.

16) Dilawar Singh vs State Of Delhi

COMPLAINT WAS FILED BY BALWANT SINGH – APPELLANT AND OTHERS APPARENTLY

TIED HIM UP AND STOLE MONEY FROM DONATION BOX IN WHICH HE WAS A PRIEST – 21
DELAY IN FILING COMPLAINT – APPARENTLY THE MATTER WAS TAKEN TO THE PLICE
BUT THEY FAILED FILE FIR - MAGISTRATE COMMITTED THE MATTER TO COURT OF
SESSION FOR DACOTY UNDER SECTION 397 IPC – SESSIONS COURT CONDONED THE
DELAY AND HELD THE APPELLANT TO BE LIABLE – IN APPEAL HC HELD THAT THE
APPEAL WAS DISSMISSED SINCE PW1 WITNESS WAS ACCURATE – CONVICTION
RECORDED ON PW1 EVIDENCE – HWOEVER, COMPLAINT AND WHAT WAS STATEMENT OF
PW1 IN COURT DIFFERENT 0- IN ONE THERE WAS A GUN IN OTHER THERE WAS SWORD –
HELD THAT THE DELAY AFFECTED THE CASE OF THE PERSON AS THERE WAS NO RECORD
PRODUCED TO SHOW THAT THE COMPLAINT TO THE POLICE AND THAT THE
INGREDIANTS OF SECTION 397, 452 AND 392 WAS NOT ESTABLISHED

HELD
Challenge in this appeal is to the judgment of the learned Single Judge, Delhi High Court, dismissing the
appeal filed by the appellant and affirming his conviction for offences punishable under Sections 452, 392
and 397 of the Indian Penal Code and sentencing him to undergo one year, two years and seven years
rigorous imprisonment respectively with fine in each case with default stipulation.
In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay
in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon
the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the
unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That
is why if there is delay in either coming before the police or before the Court, the Courts always view the
allegations with suspicion and look for satisfactory explanation. Even a long delay can be condoned if the
witnesses have no motive for implicating the accused and/or when plausible explanation is offered for the
same. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness or
authenticity of the version of the prosecution.

The principle has been statutorily recognised in Section 210 of the Cr.P.C. which enjoins upon the
Magistrate, when it is made to appear before him either during the inquiry or the trial of a complaint, that a
complaint before the police is pending investigation in the same matter, he is to stop the proceeding in the
complaint case and is to call for a report from the police. After the report is received from the police, he is
to take up the matter together and if cognizance has been taken on the police report, he is to try the complaint
case along with the G.R. Case as if both the cases are instituted upon police report. The aim of the provision
is to safeguard the interest of the accused from unnecessary harassment. The provisions of Section 210,
Cr.P.C, are mandatory in nature. It may be true that non- compliance of the provisions of Section 210,
Cr.P.C., is not ipso facto fatal to the prosecution because of the provision of Section 465 Cr. P.C., unless
error, omission or irregularity has also caused the failure of justice and in determining the fact whether there
is a failure of justice the Court shall have regard to the fact whether the objection could and should have
been raised at an earlier stage in the proceedings. But even applying the very same principles it is seen that
in fact the appellant was in fact prejudiced because of the non- production of the records from the police.
Delay in filing the complaint because of police inaction has to be explained by calling for the records from
the police was explained by this Court in Khedu Mohton and others v. State of Bihar (AIR 1971 SC 66).
Where the Court took exception to the fact that the complaint lodged with the police had not been
summoned or proved, no satisfactory proof of any such complaint had been adduced before the Court, and
none of the documents as would have become available under Sec. 173, Cr. P.C., had also been brought on
record.

17) STATE OF BIHAR VS JCS SALDHANA

COMPLAINT REGISTERED BY TISCO ALLEGING FRAUD AGAINST THE RAILWAY

OFFICER(RESP 6) – WHEN MATTER INVESTIGATED BY RAILWAY OFFICER, SUPERIOR OF
RESP 6 HE GAVE CLEAN CHIT – COMPLAINT TO CM BY MLA AND MP – SEC OF BIHAR GIVT
WROTE LETTER WITH APPROVAL OF CM TO TRANSFER MATTER TO THE CBI – CBI
DECLINED – MATTER REMITTED TO THE INSPECTOR GENERAL VIGILANCE OF THE STATE
-
ISSUE

(la). Whether the State Government was competent to direct further investigation in a criminal case in which
report was submitted by the investigating agency under Section 173(2) of the CrPC, 1973 ('Code' for short)
to the Magistrate having jurisdiction to try the case ?
(lb). Whether the Magistrate having jurisdiction to try the case committed an illegality in postponing
consideration of the report submitted to him upon a request made by Asstt. Public Prosecutor in charge of
the case till report on completion of further investigation directed by the State Government was submitted
to him
HELD
SEC 36 – POWER OF SUPERIOR OFFICER TO THE OFFICER IN CHARGE OF OLICE STATION IS
SAME AS THE LATTER

A combined reading of sections 2(h), 2(r), 36, 156 and 173(8) of the Criminal Procedure Code, 1973 read
with sections 1, 3, 12, and 22 of Indian Police Act, 1861 would indicate that the State Government was
not precluded from directing further investigation in the case in which one investigating officer had
submitted his 'final report' under section 173(2) of the Code, but on which the Court had not passed
any order.

Section 156 enables the officer incharge of a Police Station to investigate without the order of a
Magistrate into a cognizable case committed within the area of the police station. Under section
36 police officers superior in rank to an officer in charge of a police station may exercise the same powers,
throughout the local area to which they are appointed as may be exercised by such officer
within the limits of his station. Section 173(8) enables an officer-in-charge of the Police Station to
undertake for their investigation in a case where he has already submitted a report under sub-section (2)
of section 173 and if in course of such further investigation he collects additional oral or documentary
evidence, he has to forward the same in the prescribed form to the Magistrate

Inspector General appointed by the State Government has jurisdiction over the whole of the State unless
the contrary is indicated. If he is thus an officer superior in rank to an officer in charge of a police station
he could in view of s. 36 exercise the powers of an officer in charge of a police station throughout the
local area to which he was appointed meaning thereby the whole of Bihar State as might be
exercised by an officer in charge of a police station within the limits of his police station. It was to
him that the investigation of the case was ordered to be handed over by the State Governmen

7. Sub-section (8) of section 173 of the Code is not the source of power of the State Government to
direct further investigation. Section 173(8) enables an officer in charge of a police station to carry on
further investigation even after a report under s. 173(2) is submitted to Court. But if State
Government has otherwise power to direct further investigation it is neither curtailed, limited nor
denied by s. 173(8) more so, when the State Government directs an officer superior in rank to an
officer in charge of police station thereby enjoying all powers of an officer in charge of a police
station to further investigate the case. Such a situation would be covered by the combined reading of
s. 173(8) with s. 36 of the Code.

18) LALITA KUMARI VS STATE OF UP

FACTS
The present writ petition, under Article 32 of the Constitution, has been filed by one Lalita Kumari (minor)
through her father, viz., Shri Bhola Kamat for the issuance of a writ of Habeas Corpus or direction(s) of
like nature against the Respondents herein for the protection of his minor daughter who has been kidnapped.
The grievance in the said writ petition is that on 11.05.2008, a written report was submitted by the Petitioner
before the officer in-charge of the police station concerned who did not take any action on the same.
Thereafter, when the Superintendent of Police was moved, an FIR was registered. According to the
Petitioner, even thereafter, steps were not taken either for apprehending the accused or for the recovery of
the minor girl child.

HELD
1) As such, a significant change that took place by way of the 1898 Code was with respect to the placement
of Section 154, i.e., the provision imposing requirement of recording the first information regarding
commission of a cognizable offence in the special book prior to Section 156, i.e., the provision empowering
the police officer to investigate a cognizable offence. As such, the objective of such placement of provisions
was clear which was to ensure that the recording of the first information should be the starting point of any\
investigation by the police. In the interest of expediency of investigation since there was no safeguard of
obtaining permission from the Magistrate to commence an investigation, the said procedure of recording
first information in their books along with the signature/seal of the informant, would act as an "extremely
valuable safeguard" against the excessive, mala fide and illegal exercise of investigative powers by the
police. [31]
(2) The use of the word "shall" in Section 154(1) of the Code clearly shows the legislative intent that it is
mandatory to register an FIR if the information given to the police discloses the commission of a cognizable
offence.
10) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses
commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. If the
information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a
preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
(11) As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and
circumstances of each case.

The following direction were issued

i) Registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission
of a cognizable offence and no preliminary inquiry is permissible in such a situation.
ii) If the information received does not disclose a cognizable offence but indicates the necessity for an
inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed
or not.
iii) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases
where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be
supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for
closing the complaint and not proceeding further.

iv) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action
must be taken against erring officers who do not register the FIR if information received by him discloses
a cognizable offence.

v) The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received
but only to ascertain whether the information reveals any cognizable offence.

vi) While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry
should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the
causes of it must be reflected in the General Diary entry.

vii) Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police
station, we direct that all information relating to cognizable offences, whether resulting in registration of
FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the
decision to conduct a preliminary inquiry must also be reflected, as mentioned above.
19) Sakiri Vasu vs State Of U.P.

APPEAL AGAINST JUDGEMENT OF HC – SON OF APPELLANT ARMY OFFICIAL – ARMY

OFFICIAL HELD THAT HE COMMITTED SUICIDE – IN THE ARMY COURT OF INQUIRY HELD
THAT IT WAS SUICIDE – APPELLANT MADE REP TO THE CHIEF GENERAL OF THE ARMY
THAT HE WAS MURDERED – IN THE SECOND ENQUIRY HELD THAT SAME CONCLUSION
FOLLOWED – HC HELD THAT MATTER WAS DISSMISSED, AND DECLINED TO ALLOW
PRAYER FOR MATTER TO BE INVESTIATED BY CBI AND APPEAL TO SC

HELD THAT THE PROPER WAY WAS TO FIRST APPRAOCH THE LOCAL POLICE FOR SEC 154
AND 156 BEFORE REQURESTING THE CBI

17. In our opinion Section 156(3) Cr.P.C. is wide enough to include all such powers in a Magistrate which
are necessary for ensuring a proper investigation, and it includes the power to order registration of an F.I.R.
and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been
done, or is not being done by the police. Section 156(3) Cr.P.C., though briefly worded, in our opinion, is
very wide and it will include all such incidental powers as are necessary for ensuring a proper investigation.

24. We are of the view that although Section 156(3) is verybriefly worded, there is an implied power in the
Magistrate under Section 156(3) Cr.P.C. to order registration of a criminal offence and /or to direct the
officer in charge of the concerned police station to hold a proper investigation and take all such necessary
steps that may be necessary for ensuring a proper investigation including monitoring the same. Even though
these powers have not been expressly mentioned in Section 156(3) Cr.P.C., we are of the opinion that they
are implied in the above provision.

26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is
to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in
Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section
36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of
rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he
has a further remedy of filing a criminal complaint under Section 200 Cr.P.C.

34. In the present case, we are of the opinion that the material on record does not disclose a prima facie
case calling for an investigation by the CBI. The mere allegation of the appellant that his son was murdered
because he had discovered some corruption cannot, in our opinion, justify a CBI inquiry, particularly when
inquiries were held by the Army authorities as well as by the G.R.P. at Mathura, which revealed that it was
a case of suicide.

20) KARTAR SINGH VS STATE OF PUNJAB

A. Petition challenging the constitutional validity of Section 9 of the Code of Criminal Procedure (U.P.
Amendment) Act, 1976 (U.P. Act No. 16 of 1976) by which the Legislative Assembly of Uttar Pradesh has
deleted Section 438 of the Code of Criminal Procedure as applicable to the State of Uttar Pradesh.

• There was a deletion of Applicability of section of Section 438 of Code of Criminal Procedure,
1973 (CrPC) by Section 9 of Code of Criminal Procedure (U.P. Amendment) Act, 1976 (1976 Act),
• Legislative competence of state legislature was questioned to delete Section 438 of the Code
Whether the U.P. Act 16 of 1976 was violative of Articles 14, 19 and 21 of the Constitution
• Held, deletion of the application of Section 438 in the State of Uttar Pradesh by Section 9 of the
CrPC(U.P.) Amendment, 1976 does not offend either Article 14 or Article 19 or Article 21 of the
Constitution and the State Legislature is competent to delete that section, which is one of the matters
enumerated in the Concurrent List (List III of the Seventh Schedule) and such deletion is valid under Article
254(2) of the Constitution
• Conduct of an accused seeking bail in the context of his background and the nature of crime
committed are to be evaluated before the concession of bail can be granted and that the evaluation is
fundamentally from the point of view of his likelihood of either tampering with the evidence or unleashing
a threat to the society during the period when he may be allowed to be on bail Section 20(7) of the 1987
Act excluding the application of Section 438 of the CrPC in relation to any case under the Act and the Rules
made there under, cannot be said to have deprived the personal liberty of a person as enshrined in Article
21 of the Constitution

B. Whether High Court under Article 226 would be right in entertaining proceedings to quash the
charge-sheet or to grant bail to a person accused of an offence under the Act or other offenses committed
during the course of the same transaction exclusively triable by the Designated Court

- Held, High Court has jurisdiction to entertain an application for bail under Article 226 and pass orders
either way, relating to the cases under the 1987 Act, that power should be exercised sparingly, that too only
in rare and appropriate cases in extreme circumstances - But the judicial discipline and comity of courts
require that High Courts should refrain from exercising the extraordinary jurisdiction in such matters - High
Courts being constitutionally obliged to ensure that any authority which exercises judicial and quasi-
judicial powers in its jurisdiction functions within the framework of law, are entitled to entertain the petition
to determine if the proceedings were not an abuse of process of court - But while exercising discretion the
court must not be oblivious of the sensitivity of the legislation and the social objective inherent in it and,
therefore, should exercise it for the sake of justice in rare and exceptional cases the details of which cannot
be fixed by any rigid formula.

C. Challenge to section 20(7) of the TADA

Sub-section (7) reads thus :

"Nothing in Section 438 of the Code shall apply in relation to any case involving the arrest of any person
on an accusation of having committed an offence punishable under this Act or any rule made thereunder."

It can be deduced from the reasoning of the Report of the Law Commission that where a person accused of
a non-bailable offence is likely to abscond or otherwise misuse his liberty while on bail, will have no
justification to claim the benefit for anticipatory bail. Can it be said with certainty that terrorists and
disruptionists who create terrorism and disruption and inject sense of insecurity, are not likely to abscond
or misuse their liberty if released on anticipatory bail. Evidently, the Parliament has thought it fit not to
extend the benefit of Section 438 to such offenders.

9. Further, at the risk of repetition, we may add that Section 438 is a new provision incorporated in the
present Code creating a new right. If that new right is taken away, can it be said that the removal of Section
438 is violative of Article 21. In Gurbaksh Singh109, there is no specific statement that the removal of
Section 438 at any time will amount to violation of Article 21 of the Constitution.

330. Hence for the aforementioned reasons, the attack made on the validity of sub-section (7) of Section 20
has to fail.
D. Constitutionality of section 20(8), 20(9) of the TADA Act
"(8) Notwithstanding anything contained in the Code, no person accused of an offence punishable under
this Act or any rule made thereunder shall, if in custody, be released on bail or on his own bond unless-

(a) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable
grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence
while on bail.

(9) The limitations on granting of bail specified in sub-section (8) are in addition to the limitations under
the Code or any other law for the time being in force on granting of bail."

The conditions imposed under Section 20(8)(b), as rightly pointed out by the Additional Solicitor General,
are in consonance with the conditions prescribed under clause (i) and (ii) of sub-section (1) of Section 437
and clause (b) of sub-section (3) of that section. Similar to the conditions in clause (b) of sub-section (8),
there are provisions in various other enactments such as Section 35(1) of Foreign Exchange Regulation Act
and Section 104(1) of the Customs Act to the effect that any authorised or empowered officer under the
respective Acts, if, has got reason to believe that any person in India or within the Indian customs waters
has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the
condition that "there are grounds for believing that he is not guilty of an offence", which condition in
different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section
35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing
the principle of Article 21 of the Constitution.

21) Shivappa vs State Of Karnataka

1. This appeal, by special leave, has been filed by Shivappa s/o Bundappa who was Accused 2 in the
trial court and Appellant 2 in the High Court and is directed against the order of the High Court of Karnataka
upholding his conviction and sentence for the offence under Section 302 IPC.
2. The deceased, after consuming liquor, shortly before the day of occurrence went to the house of his
friend and accusing him of having illicit relations with his wife and abused him. He thereafter went to the
house of a doctor and abused him also in the presence of some of his patients accusing him that he was
having illicit relations with his wife.
3. APPELLANT AND FEW OTHERS HAD STAGED THE DEATH OF THE DECEASED BY
MAKING IT LOOK LIKE A CAR ACCIDENT – THE WIFE AND THE APPELLANT GAVE UP
DURING FURTHER INVESTIGATION ADMITTED TO THE OFFENCE AND FINALLY GAVE UP
THE LOCATION OF THE BODY – CONFESSIONAL STATEMENT WAS THEN TAKEN
4. TC CONVEICTED THE APPELLANT BASIS THE CONFESSIONAL STATEMENT, THEN
THE HC ALSO DID THE SAME

HELD

The Magistrate who is entrusted with the duty of recording confession of an accused coming from police
custody or jail custody must appreciate his function in that behalf as one of a judicial officer and he must
apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not
on account of any extraneous influence on him. That indeed is the essence of a 'voluntary' statement within
the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance
of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character
of the statement, he should also make and leave such material on the record in proof of the compliance with
the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in
the case, that the confessional statement was made by the accused voluntarily and the statutory provisions
were strictly complied with.

.From a perusal of the evidence of PW 17, Shri Shitappa, Additional Munsif Magistrate, we find that though
he had administered the caution to the appellant that he was not bound to make a statement and that if he
did make a statement that may be used against him as evidence but PW 17 did not disclose to the appellant
that he was a Magistrate and that the confession was being recorded by him in that capacity nor made any
enquiry to find out whether he had been influenced by anyone to make the confession.

From the memorandum prepared by the Munsif Magistrate, PW 17 as also from his deposition recorded in
court it is further revealed that the Magistrate did, not lend any assurance to the appellant that he would not
be sent back to the police custody in case he did not make the confessional statement. Circle

The, failure of the Magistrate to make a real endeavour to ascertain the voluntary character of the
confession, impels us to hold that the evidence on the record does not establish that the confessional
statement of the appellant recorded under Section 164 CrPC was voluntary. The cryptic manner of holding
the enquiry to ascertain the voluntary nature of the confession has left much to be desired and has detracted
materially from the evidentiary value of the confessional statement. It would, thus, neither be prudent nor
safe to act upon the confessional statement of the appellant.

22) K VEERASWAMY VS UOI

1. A complaint against the appellant, a former Chief Justice of a High Court, was made to the
CBI on which a case under s. 5(2) read with s. 5( I )(e) of the Prevention of Corruption Act, 1947
was registered on 24.2.1976. On 28.2.1976 the F.I.R. was filed in the court of
Special Judge. The appellant proceeded on leave from 9.3.1976 and retired 8.4.1976 on attaining
the age of superannuation.
2. FIR FILED UNDER SEC 173(2) BASIS SECTION 5 OF THE POCA MENTIONING THAT HE
HAD AMOUNT THAT WAS DISPROPORTIONATE TO HIS INCOME – SPECIAL JUDGE ISSUED
PROCESS FOR HIS APPEARANCE
3. JUDGE FILED APPEAL IN HC TO THE WHICH DISMISSED THE CASE
4. ON APPEAL TO THE SC, THE FOLLOWING QUESTIONS CAME TO BE ASKED

1) whether a Judge of a High Court or of the Supreme Court is a 'public servant' within the meaning of s.
2 of the Prevention of Corruption Act, 1947;
(2) Whether a Judge of the High Court including the Chief Justice, or a Judge of the Supreme Court
can be prosecuted for an offence under the Prevention of Corruption Act, 1947; and
(3) who is the competent authority to remove a Judge either of the Supreme Court or of the High Court
from his office in order to enable that authority to grant sanction for prosecution of the Judge under the
provisions of s. 6 of the Prevention of Corruption Act, 1947.

HELD
1. A Judge of a High Court or of the Supreme Court is a 'public servant' within the meaning of s. 2 of the
Prevention of Corruption Act, 1947.

2. Prosecution of a Judge of a High Court, including the Chief Justice, or a Judge of the Supreme Court
can be launched after obtaining sanction of the competent authority as envisaged by s. 6 of the
Prevention of Corruption Act.

3.

3.1 For the purpose of s. 6(1)(c) of the Prevention of Corruption Act, 1947, the President of India is
the authority competent to give previous sanction for prosecution of a Judge of a superior Court.
3.2 No criminal case shall be registered under s.154, Cr. P.C. against a Judge of the High Court, Chief
Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is
consulted in the matter.
3.3 If the Chief Justice of India himself is the person against whom the allegations of criminal
misconduct are received, the Government shall consult any other judge or Judges of the Supreme
Court.
3.4 There shall be similar consultation at the stage of examining the question of granting sanction for
prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in
accordance with the advice of the Chief Justice of India.

23) State Of Rajasthan, Jaipur vs Balchand

1. The petitioner-respondent was convicted and sentenced by the Sessions Court but released after
the judgment of the High Court. The petitioner surrendered before the trial court as required under Order
XXI rule 6 of the Supreme Court Rules after leave was granted to the State to file an appeal against
acquittal by the High Court and moved an application for bail.

HELD

The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive
of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating
offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the
court. We do. not intend to be exhaustive but only illustrative. It is true that the gravity of the offence
involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when
considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner
in this case is that, while lie, has been on bail throughout in the trial court and he was released after the
judgment of the High Court, there is nothing to suggest that he, has abused the trust placed in him by the
court; his social circumstances also are not so unfavourable in the sense of his being a desparate character
or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take
justice, at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The
circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At
the same time any possibility of the abscondence or evasion or other abuse can be taken care of by a
direction that the petitioner will report himself before the notice station at Baren once every fortnight.