Criminal Procedure Code [Cr P C]

Q. Describe the organization of police, prosecutor, defense counsel and prison

authorities and their functions, duties, and powers. 
Police
The ordinary criminal courts derive their existence from CrPC. However, CrPC does not say
anything about the constitution of Police. It assumes the existence of police and devolves
various powers and responsibilities on to it.
Functions -
As per The Police Act, 1861, the police force is an instrument for the prevention and
detection of crime.

Organization - 
Every state establishes its own police force which is formally enrolled. The force consists of
such number of officers and men and is constituted in such manner as the state govt. may
decide from time to time. The overall administration of police in the entire state is done by
Director General of Police. The administration of police in a district is done by District
Superintendent of Police under the general control and direction of District Magistrate who is
usually the Collector of the district. Every police officer appointed to the police force, other
than Inspector General of Police and District Superintendent of Police, receives a certificate
in prescribed form by virtue of which he is vested with the powers, functions and privileges
of a police officer.

The Police Act, 1888 also empowers the Central Govt to create special police districts and to
extend the jurisdiction of police of any state to that district. The Police Act 1949, creates a
police force for Union Territories.

Powers – 
1. The Cr P C confers specific powers on the members of police force who are enrolled as
police officers. These powers include power to make an arrest, search, and investigate. Wider
powers have been given to police officers in charge of a police station. As per Section 2(s),
police station means any post or place that is generally or specially designated by the state
govt as a police station.  Further, as per Section 2(o) officer in charge of a police station
includes the officer who is present at the police station and is next in rank to the police officer
in charge, if he is on leave or is absent. This only increases the importance of the police
officer in charge of a police station.

2. Section 36 of CrPC specifies that officers of police who are superior in rank to police
officer in charge of a police station can exercise all the powers of that police officer. In the
case of State of Bihar vs J A C Saldanha SCC 1980, SC held that if the Inspector General
(Vigilance) is an officer superior to the officer in charge of the police station he can exercise
the powers of that officer through out the territory to which the superior officer has been
appointed, which, in this case is the entire territory of Bihar.

Duties - 
Prosecutor
A crime is a wrong not only against an individual but is also against the society. It is because
of this reason that the state, which represents the collective of people, participates in the
criminal trial of an accused, specially if the crime is of cognizable nature. Public Prosecutor
or Assistant Public Prosecutor is the state counsel for such trials. As per section 2(u), Public
Prosecutor means any person appointed under Section 24 and includes any person acting
under the directions of the public prosecutor. Section 24 of CrPC specifies the rules for
appointment of Public Prosecutor. A person shall be eligible to be appointed in High Court as
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Public Prosecutor if he has been in practice as an advocate for not less than seven years. The
appointment can be made only after consultation with the High Court. Further, the central
govt. can appoint a Public Prosecutor for conducting in a high court any prosecution, appeal,
or other proceeding on behalf of the Central Govt.

Assistant Public Prosecutor are appointed under Section 25. It authorizes the State Govt. to
appoint one or more APPs for every district for conducting any case in Court of Magistrates.
No police officer is allowed to be appointed as APP.

Duties – 
Duty of a public prosecutor mainly consists in conducting the prosecution on behalf of the
state. His goal is not merely to produce a conviction but the help the court arrive at a just
decision. He also appears as the state counsel in criminal appeals, revisions, and such other
matters in the Session Courts and High Court. It is important to note that he does not appear
on behalf of the accused.

Powers – 
1. As per Section 301, a Public Prosecutor or Assistant Public Prosecutor has the authority to
appear and plead before any court in any case entrusted to him. 

2. As per Section 321, he can withdraw from the prosecution against any person with the
consent of the court.
According to the pattern set by CrPC, Public Prosecutors conduct the proceedings in Session
Courts and the High Courts and Assistant Public Prosecutors are appointed for conducting
prosecution in Magistrates' Courts. As per prevailing practice, in respect of cases initiated on
police reports, the prosecution is conducted by the APP and in cases initiated on a private
complaint the prosecution is either conducted by the complainant himself or by his duly
authorized counsel. 

Defense Counsel
As per Section 303, any person accused of an offence before a Criminal Court has a right to
be defended by a pleader of his choice. Such pleaders are not in regular employment of the
state and a paid remuneration by the accused person. Since, a qualified legal practitioner on
behalf of the accused is essential for ensuring a fair trial, Section 304 provides that if the
accused does not have means to hire a pleader, the court shall assign a pleader for him at
state's expense.

At present there are several schemes through which an indigent accused can get free legal aid
such as Legal Aid Scheme of State, Bar Association, Legal Aid and Service Board, and
Supreme Court Senior Advocates Fee Legal Aid Society. The Legal Services Authorities Act,
1987 also provides free legal aid for the needy.

Prison Authorities
CrPC presumes the existence of Prisons and Prison authorities. The code empowers
magistrates and judges under certain circumstances to order detention of under trial prisoners
in jail during the pendency of proceedings. The code also empowers the courts to impose
sentences of imprisonment on convicted persons and to send them to prison authorities.
However, the code does not make specific provisions for creation and administration of
prison authorities. These matters are dealt with in separate acts such as The Prisons Act 1894,
The Prisoners Act, 1900, and the Probation of Offenders Act 1958.

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Q. What do you understand by Arrest? How is an arrest made? When can the police
arrest a person without an order from a magistrate and/or without a warrant? Explain
the rights of an arrested person. [Right to know the grounds of arrest - Art 22(1), Sec
50, 50(A), Right to consult and to be defended by legal practitioner of his choice - Art
22(1), Sec 303, Right to legal aid - Art 21, Sec 304, Right to bail Sec 50(2), Right to be
produced before nearest magistrate within 24 hrs - Art 22(2) Sec 56, 57, Right not to be
detained in custody beyond 24 hrs - Art 22(2) Sec 57, 167, Right to be examined by
medical practitioner]  

Arrest means apprehension of a person by legal authority so as to cause deprivation of his

liberty. Thus, after arrest, a person's liberty is in control of the arrester. Arrest is an important
tool for bringing an accused before the court as well as to prevent a crime or prevent a person
suspected of doing crime from running away from the law. Cr P C contemplates two types of
arrests - an arrest that is made for the execution of a warrant issued by a magistrate and an
arrest that is made without any warrant but in accordance with some legal provision that
permits arrest.

Section 41 to 44 contain provisions that govern the arrest of a person by police and private
citizens, while Section 46 describes how an arrest is a made.

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

Arrest without warrant

There are situations when a person may be arrested by a police officer, a magistrate or even
private citizen without a warrant. These are described in Section 41, 42, 43, and 44 as follows

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

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or other cause for which the arrest is to be made and it appears therefrom that the person
might lawfully be arrested without a warrant by the officer who issued the requisition.
(2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested
any person, belonging to one or more of the categories of persons specified in section 109 or
section 110.

In the case of Joginder Kumar vs State of UP, CrLJ, 1994, it was held that no arrest can be
made merely because it is lawful to do so. There must be a justifiable reason to arrest.
Further, in State vs Bhera, CrLJ, 1997, it was held that the "reasonable suspicion" and
"creditable information" must relate to definite averments which must be considered by the
Police Officer himself before he arrests the person.

Section 42 allows a police officer to arrest a person for a non-cognizable offence, if he

refuses to give his name and residence.  As per Section 42(1),  when any person who, in the
presence of a police officer, has committed or has been accused of committing a non-
cognizable offence refuses, on demand of such officer, to give his name and residence or
gives a name or residence which such officer has reason to believe to be false, he may be
arrested by such officer in order that his name or residence may be ascertained.
However, as per sub clause (2), the person must be released when the true name and
residence of such person have been ascertained. He may be required to execute a bond, with
or without sureties, to appear before a Magistrate if necessary.

Provided that, if such person is not resident in India, the bond shall be secured by a surety or
sureties resident in India.
Further,  as per sub clause (3), should the true name and residence of such person not be
ascertained within twenty-four hours from the time of arrest or should he fail to execute the
bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the
nearest Magistrate having jurisdiction.

Arrest by Private person 

Even private persons are empowered to arrest a person for protection of peace in certain
situations. This is important because police cannot be present at every nook and corner and it
is up to private citizens to protect the society from disruptive elements or criminals. As
per section 43(1),  any private person may arrest or cause to be arrested any person who in
his presence commits a non-bailable and cognizable offence, or any proclaimed offender,
and, without unnecessary delay, shall make over or cause to be made over any person so
arrested to a police officer, or, in the absence of a police officer, take such person or cause
him to be taken in custody to the nearest police station. Thus, if a person is drunk and is
committing assault on others, he may be rightly arrested by any citizen and taken to the
nearest police station.

However, it is important to note that this power can be exercised only when the person
making an arrest is under a bona fide impression that a non-bailable and cognizable office is
being committed in his presence. One does not have a right to arrest on mere suspicion or on
mere opinion that an offence has been committed. 

Procedure on arrest by private person – 

As mentioned above, the private person must take the arrested person to the police officer or
police station without any reasonable delay. If he keeps the person in his own custody, he will
be guilty of wrongful confinement as given in Section 342 of IPC.
As per section 43(2), If there is reason to believe that such person comes under the provisions
of section 41, a police officer shall re-arrest him. Further, as per section 43(3), if there is
reason to believe that he has committed a non-cognizable offence, and he refuses on the
4
demand of a police officer to give his name and residence, or gives a name or residence
which such officer has reason to believe to be false, he shall be dealt with under the
provisions of section 42; but if there is no sufficient reason to believe that he has committed
any offence, he shall be at once released.

A new provision has been incorporated as Section 50A, which makes it obligatory for the
police officer or any other person making an arrest to give the information regarding such
arrest and place where the arrested person is being held to any of his friends, relatives or such
other persons as may be disclosed or nominated by the arrested person for the purpose of
giving such information. Further,  the police officer shall inform the arrested person of his
rights under subsection as soon as he is brought to the police station. He must make an entry
of the fact as to who has been informed of the arrest of such person in a book to be kept in the
police station in such form as may be prescribed in this behalf by the State Government. It is
the duty of the Magistrate before whom such arrested person is produced, to satisfy himself
that the requirements of this section has been complied with in respect of such arrested
person.

Arrest by Magistrate
As per Section 44(1), when any offence is committed in the presence of a Magistrate,
whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order
any person to arrest the offender, and may thereupon, subject to the provisions herein
contained as to bail, commit the offender to custody. Further, (2) Any Magistrate, whether
Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his
local jurisdiction, of any person for whose arrest he is competent at the time and in the
circumstances to issue a warrant.

Important thing to note here is that magistrates have wider power than private citizen. A
magistrate can arrest on the ground of any offence and not only on cognizable offence. As
held in the case of Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR
1954, the arrested person must be produced before another magistrate within 24 hours,
otherwise his detention will be illegal. 

Arrest how made – 

Section 46 describes the way in which an arrest is actually made. As per Section 46(1),
unless the person being arrested consents to the submission to custody by words or actions,
the arrester shall actually touch or confine the body of the person to be arrested.  Since arrest
is a restraint on the liberty of the person, it is necessary for the person being arrested to either
submit to custody or the arrester must touch and confine his body. Mere oral declaration of
arrest by the arrester without getting submission to custody or physical touching to confine
the body will not amount to arrest. The submission to custody may be by express words or by
action. For example, as held in the case of  Bharosa Ramdayal vs Emperor AIR 1941, if a
person makes a statement to the police accusing himself of committing an offence, he would
be considered to have submitted to the custody of the police officer. Similarly, if the accused
proceeds towards the police station as directed by the police officer, he has submitted to the
custody. In such cases, physical contact is not required. In case of Birendra Kumar Rai vs
Union of India, CrLJ, 1992, it was held that arrest need not be by handcuffing the person,
and it can also be complete by spoken words if the person submits to custody.

Section 46(2) If such person forcibly resists the endeavor to arrest him, or attempts to evade
the arrest, such police officer or other person may use all means necessary to effect the arrest.
Thus, if the person tries to runaway, the police officer can take actions to prevent his escape
and in doing so, he can use physical force to immobilize the accused.  However, as
per Section 46(3), there is no right to cause the death of the person who is not accused of an
5
offence punishable with death or with imprisonment for life, while arresting that person.
Further, as per Section 49, an arrested person must not be subjected to more restraint than is
necessary to prevent him from escaping.

Due to concerns of violation of the rights of women, a new provision was inserted in Section
46(4) that forbids the arrest of women after sunset and before sunrise, except in exceptional
circumstances, in which case the arrest can be done by a woman police officer after making a
written report and obtaining a prior permission from the concerned Judicial Magistrate of
First class.

In Kultej Singh vs Circle Inspector of Police, 1992, it was held that keeping a person in the
police station or confining the movement of the person in the precincts of the police station
amounts to arrest of the person.

Rights of an Arrested person (GBMLLIM)

Cr P C  gives wide powers to the police for arresting a person. Such powers without
appropriate safeguards for the arrested person will be harmful for the society. To ensure that
this power is not used arbitrarily, several restraints have been put on it, which, indirectly, can
be seen as recognition of the rights of a person being arrested.  Further, once arrested, a
person is already at a disadvantage because of his lack of freedom and so he cannot take
appropriate steps to defend himself. Thus, to meet the needs of "fair trial", several provisions
are given in CrPC, that give specific rights to an arrested person.

These rights can be described as follows – 

1. Right to know the grounds of arrest - Section 50(1) - According this provision, every
police officer or other person arresting any person without warrant shall forthwith
communicate to him full particulars of the offence for which he is arrested or other grounds
for such arrest. 
Similarly, when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55, the subordinate officer must notify the person to be arrested of the
substance of the written order given by the senior officer, which clearly specifes the offence
for which he is being arrested. The same provision exists in case of an arrest made under a
warrant in Section 75. In this case, the police officer or any person making arrest under
warrat must notify the substance of the warrant to the person being arrested and if required,
must show the warrant. As held in Satish Chandra Rai vs Jodu Nandan Singh, ILR 26 Cal
748, if the substance of the warrant is not notified, the arrest would be unlawful.

In Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to be notified of
grounds of arrest is a precious right of the arrested person. This allows him to move the
proper court for bail, make a writ petition for habeas corpus, or make appropriate
arrangements for his defence.

This right is also a fundamental right given by the Constitution in Art 22(1), which says, "No
person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the right to consult, and to be
defended by, a legal practitioner of his choice.". It embodies two distinc rights - the right to
be told of the grounds of arrest and the right to consult a legal practioner of his choice. The
second right of consulting a legal practitioner of his choice actually depends on the first right
of being told about the grounds of arrest. If the person doesn't know why he is being arrested,
he cannot consult a legal practioner meaningfully. In Harikishan vs State of Maharashtra
AIR 1962, SC held that the grounds of arrest must be communicated to the person in the
language that he understands otherwise it would not amount to sufficient compliance of the
constitutional requirement.
6
2. Right to be informed of the provision for bail - Section 50(2) - Some offences that are
not very serious do not require the offender to be kept in custody. For such offences, Cr P C
allows the offender to ask for bail as a matter of right. However, not every person knows
about Cr P C and so they cannot know that they can get bail immediately.  Thus, Section
50(2), provides that where a police officer arrests any person other than a person accused of a
non-bailable offence without warrant, he shall inform the person arrested that he is entitled to
be released on bail and that he may arrange for sureties on his behalf.

3. Right to be taken to magistrate without delay - Holding a person in custody without first
proving that the person is guilty is a violation of human rights and is completely unfair. At
the same time, holding a person in custody is necessary for the police to carry on their
investigation of a crime. These two are contradictory requirements and a balance must be
found between them. Since police has arrested the person, it cannot be the agency that
determines whether person must be kept confined further. This can only be decided by a
competent judicial authority. This is exactly what is embodied in Art 22(2) that gives a
fundamental right to the arrested person that he must be produced before a magistrate within
24 hours of arrest. It says, "Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the court of the
magistrate and no such person shall be detained in custody beyond the said period without the
authority of a magistrate."

Section 57 of CrPC also contains a similar provision for a person arrested without a warrant.
It says, "No police officer shall detain in custody a person arrested without warrant for a
longer period than under all the circumstances of the case is reasonable, and such period shall
not, in the absence of a special order of a Magistrate under Section 167, exceed twenty four
hours exclusive of the time necessary for the journey from the place of arrest to the
Magistrate's court."

Section 76 contains a similar provision for a person arrested under a warrant. It says, "The
police officer or other person executing a warrant of arrest shall (subject to the provisions of
section 71 as to security) without unnecessary delay bring the person arrested before the court
before which he is required by law to produce such person. Provided that such delay shall
not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey
from the place of arrest to the Magistrate's court."

Thus, it can be see that it is a very important right that is meant to prevent abuse of police
power and to prevent the use of a police station as a prison. It prevents arrest merely for the
purpose of extracting confessions. The arrested person gets to be heard by a judicial authority
that is independent of the police.

In Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon the State and its
police to ensure that this constitutional and legal requirement of bringing an arrested person
before a judicial magistrate within 24 hours be scrupulously met. This is a healthy provision
that allows magistrates to keep a check on the police investigation. It is necessary that the
magistrates should try to enforce this requirement and when they find it disobeyed, they
should come heavily upon the police.

Further, in Sharifbai vs Abdul Razak, AIR 1961, SC held that if a police officer fails to
produce an arrested person before a magistrate within 24 hours, he shall be held guilty of
wrongful detention.

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Constitutional Perspective on Art 22(2) -  On the face of it, this article seems to be
applicable on arrests with or without warrants. However, in State of Punjab vs Ajiab Singh
AIR 1953, SC observed that it applies only to cases of arrests without warrant because in
case of an arrest with warrant, the judicial mind has already been applied while issuing the
warrant. So further safeguard is not required. This decision has been widely criticized. In any
case, the proviso to Section 76 unmistakably provides that a person arrested under a warrant
must be produced before a magistrate within 24 hours.

4. Right to consult Legal Practitioner -  Art 22 (1) - For conducting a fair trial it is
absolutely necessary that the accused person is able to consult with a legal practitioner whom
he trusts. Second part of Article 22(1) gives this fundamental right to an arrested person. It
says that no person who is arrested shall be denied the right to consult, and to be defended by,
a legal practitioner of his choice. However, this does not mean that the State must provide a
legal practitioner of the person's choice. It is up to the arrested person to contact and appoint
a such a legal practitioner. The State's responsibility is only to ensure that he is not prevented
from doing so.

The same right is also provide by CrPC under Section 303, which says, "Any person accused
of offence before a Criminal Court or against whom proceedings are instituted under this
Code, may of right be defended by a pleader of his choice."

5. Right to free legal aid -  Art 21 and Section 304 - A person who does not have the means
to hire a legal practitioner is unable to defend himself appropriately. This casts a cloud on the
fairness of the trial. Therefore, Section 304 provides that where, in a trial before the Court of
Session, the accused is not represented by a pleader, and where appears to the Court that the
accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his
defense at the expense of the State. In Khatri (II) vs State of Bihar 1981 SCC, Supreme
Court has also held that access to a legal practitioner is implicit in Article 21, which gives
fundamental right to life and liberty. The state is under constitutional mandate to provide free
legal aid to an indigent accused person and this constitutional obligation arises not only when
the trial is commenced but also when the person is first produced before a magistrate and also
when he is remanded from time to time. InSuk Das vs Union Territory of Arunachal
Pradesh 1986, SCC, SC has held that non-compliance of this requirement or failure to
inform the accused of this right would vitiate the trial entailing setting aside of the conviction
and sentence. The right of an accused person to consult his lawyer begins from the moment
of his arrest. The consultation with the lawyer may be within the presence of a police officer
but not within the police officer's hearing. SC also held that it is the duty on all courts and
magistrates to inform the indegent person about his right to get free legal aid.

6. Right to be informed about the right to inform of his arrest to his relative or friend - 
In order to ensure a fair trial and to improve people-police relationship, the Supreme Court,
in Joginder Kumar vs State of UP 1994, formulated the rules that make it mandatory on the
police officer to inform one friend, relative, or any other person of the accused person's
choice, about his arrest. These rules were later incorporated in CrPC under section 50 A in
2005. 

Section 50 A (1) provides that once the arrested person is brought to the police station, the
police officer must inform a relative or a friend, or any other person of the arrested person's
choice, about his arrest. He must also tell the place where the arrested person has been
kept. This is a very important step in ensuring justice with the arrested person because this
allows the arrested person and his well wishers to take appropriate legal steps to secure his
release. However, all this will amount to nothing if the arrested person does not even know
about this very critical right. Thus, Section 50 A (2) provides that the police officer must
8
inform the arrested person of this right. Further, as per Section 50 A (3) he must note down
the name and address of the person who was informed about the arrest. To make sure that
there is no violation of this right, section 50 A (4)  makes it a duty of the magistrate to verify
that the provisions of this section were complied with.

7. Right to be examined by a medical practitioner - While Section 53 allows a police

officer to get the accused examined by a registered medical practitioner, Section 54(1) gives
the accused a right to get himself examined by a registered medical practitioner. Section 54
(1) says thus, "When a person who is arrested, whether on a charge or otherwise, alleges, at
the time when he is produced before a Magistrate or at any time during, the period of his
detention in custody that the examination of his body will afford evidence which will
disprove the commission by him of any offence or which Magistrate shall, if requested by the
arrested person so to do direct the examination of' the body of such person by a registered
medical practitioner unless the Magistrate considers that the request is made for the purpose
of vexation or delay or for defeating the ends of Justice". While Section 53 is meant to aid the
police in investigation, Section 54(1) is meant for the accused to prove his innocence. This
right can also be used by the accused to prove that he was subjected to physical injury.

In Sheela Barse vs State of Maharashtra 1983 SCC, SC held that the arrested accused
person must be informed by the magistrate about his right to be medically examined in terms
of Section 54(1).

However, it is not clear in the section whether the medical person must be of the choice of the
accused or shall be appointed by the magistrate. The section is also silent on who will bear
the expense of the examination.
Non compliance to this important provision prompted Delhi High court to issue directions
that make it obligatory for the magistrates to ask the arrested person as to whether he has any
complaint of torture or maltreatment in police custody.

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

In general, non-compliance does not void a trial. Just because any provision relating to arrest
was not complied with does not affect whether the accused is guilty or not. However, the
violation will be material in case the accused is prosecuted on the charge of resistance to or
escape from lawful custody.

Further, everybody has a right to defend himself against unlawful arrest and a person can
exercise this right under Section 96 to 106 of IPC and he will not be liable for any injury
caused due to it. Also, a person who is making an illegal arrest is guilty of wrongful
confinement and also exposes himself  to damages in a civil suit.

If a person who has an authority to arrest, arrests a person with full knowledge that the arrest
is illegal, he will be liable to be prosecuted under Section 220 of IPC. Similarly, any private
person who does not have an authority to arrest, arrests a person with full knowledge that the
arrest is illegal, can be prosecuted under Section 342 of IPC for wrongful confinement.
A person making illegal arrest also exposes himself to civil suit of false imprisonment.

It is important to note that the provisions regarding arrest cannot be by-passed by alleging
that there was no arrest but only an informal detention. Informal detention or restraint of any
kind by the police is not authorized by law.

9
Q. What provisions are given in CrPC for compelling appearance in courts? What do
you know about Summons in this context? Describe the procedure for issue and service
of a Summons. How can a Summons be served on a govt. employee or outside local
limits?  

Processes for compelling appearance

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

The code classifies all criminal cases into summons cases and warrant cases. A case is a
warrant case if the offence is punishable by death, imprisonment for life or imprisonment for
more than two years.  A summons case is a case that is not a warrant case. Thus, the basis of
classification is the seriousness of the offence. Since summons case contains a lesser
sentence, there is less probability of the accused violating the court order. Therefore,
generally, a summons is issued for a summons case and a warrant is issued for a warrant case.
However, when a summons is not productive in making a person appear before the court, the
count may issue a warrant to a police officer or any other person to forcibly produce the
required person before the court. 

Summons
A Summons is a process issued by a Court, calling upon a person to appear before a
Magistrate. It is used for the purpose of notifying an individual of his legal obligation to
appear before the Magistrate as a response to a violation of the law. It is addressed to a
defendant in a legal proceeding. Typically, the summons will announce to the person to
whom it is directed that a legal proceeding has been started against that person, and that a file
has been started in the court records. The summons announces a date and time on which the
person must appear in court.

A person who is summoned is legally bound to appear before the court on the given date and
time. Willful disobedience is liable to be punished under Section 174 of IPC. It is a ground
for contempt of court.

As per Section 61, every summons issued by a Court under this Code shall be in writing and
in duplicate. It must be signed by the presiding officer of the Court or by such other officer as
the High Court may, from time to time, by rule direct. It must also bear the seal of the Court.

10
Procedure for issuing a Summons
When a request in appropriate format is made to the court for compelling the appearance for a
person, the court either rejects the request or issues a Summons. As per Section 204, if in the
opinion of the magistrate taking cognizance of the offence, there is sufficient ground for
proceeding, he shall issue a summons if it is a summons case. If it is a warrants case, he may
issue a warrant or a summons as he thinks fit. However, Section 87, empowers a magistrate
to issue a warrant even if the case is a summons case if he has reason to believe that the
summons will be disobeyed. He must record his reasons for this action.
The summons should contain adequate particulars such as the date, time, and place, of the
offence charged. It should also contain the date, time, and place where the summoned person
is supposed to appear. The standard format of a summons is given in Form 1 of Second
schedule. 

As per Section 205, a magistrate issuing the summons may permit the accused to appear by
his lawyer if he sees reason to do so.

Procedure for serving a Summons

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

Section 62 describes the procedure for serving a Summons on a person as follows - 

(1) Every summons shall be served by a police officer, or subject to such rules as the State
Government may make in this behalf, by an officer of the Court issuing it or other public
servant.
(2) The summons shall, if practicable, be served personally on the person summoned, by
delivering or tendering to him one of the duplicates of the summons.
(3) Every person on whom a summons is so served shall, if so required by the serving officer,
sign a receipt therefore on the back of the other duplicate.

In case of Danatram Karsanal, 1968, it was held that summons should not only be shown
but a copy of it be left, exhibited, delivered, or tendered, to the person summoned. In a case,
where a copy was tendered to the person, it was held that the summon was served.
In E Chathu vs P Gopalan, 1981, it was held that when the person sought to be summoned
is employed abroad, the court can send summons to the concerned embassy official for the
purpose of service since the embassy official is also a public servant. Merely affixing the
summon on a conspicuous part of the house will not amount to service of the summon.

Service of summons on corporate bodies and societies (Section 63) – 

Service of a summons on a corporation may be effected by serving it on the secretary, local
manager or other principle officer of the corporation, or by letter sent by registered post,
addressed to the chief officer of the corporation in India, in which case the service shall be
deemed to have been effected when the letter would arrive in ordinary course of post.  In this
section, "corporation" means an incorporated company or other body corporate and includes a
society registered under the Societies Registration Act, 1860.

In the case of Central Bank of India vs Delhi Development Authority, 1981, it was held
that a Branch Manager is a local manager and if he has been served the service shall be
deemed to have been effected on the company itself.

11
Service when persons summoned cannot be found (Section 64) –
Where the person summoned cannot, by the exercise of due diligence, be found, the
summons may be served by leaving one of the duplicates for him with some adult male
member of his family residing with him, and the person with whom the summons is so left
shall, if so required by the serving officer, sign a receipt therefor on the back of the other
duplicate.  A servant is not considered to be a member of the family within the meaning of
this section.

Procedure when service cannot be effected as before provided (Section 65) – 

If service cannot by the exercise of due diligence be effected as provided in section 62,
section 63, or section 64, the serving officer shall affix one of the duplicates of the summons
to some conspicuous part of the house or homestead in which the person summoned
ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may
either declare that the summons has been duly served or order fresh service in such manner as
it considers proper.

The service of summons on a witness can also be done by post. As per Section 69 – 
(1) Notwithstanding anything contained in the preceding sections of this Chapter, a Court
issuing a summons to a witness may, in addition to and simultaneously with the issue of such
summons, direct a copy of the summons to be served by registered post addressed to the
witness at the place where he ordinarily resides or carries on business or personally works for
gain.
(2) When an acknowledgment purporting to be signed by the witness or an endorsement
purporting to be made by a postal employee that the witness refused to take delivery of the
summons has been received, the Court issuing the summons may declare that the summons
has been duly served.

Service of summons on a Govt. employee (Section 66) -

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

Service of summons outside local limits (Section 67) –

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

Q. What do you understand by Warrant of Arrest? Describe the procedure for issue
and execution of a Warrant of Arrest. When can a court issue a warrant in a case in
which it is empowered to issue a summons? When can a warrant be issued for recovery
of a fine?  

Introduction
To meet the ends of justice, it is critical to produce the accused and other witness or related
parties before the court whenever needed. If the accused is found guilty at the conclusion of
the trial, he must be present in person to receive the sentence. Also, his presence is necessary
if imprisonment is to be enforced. Further, the supremacy of the law will be questionable if
there is no formal process to bring the required persons before the court. For this
12
reason, Chapter VI (Sections 61 to 90) of CrPC provides two ways for compelling the
appearance of any person who is required to be present in the court, in the court - Summons
and Warrant. While Summons is an order of the court to the person to appear before it,
Warrant is an order of the court given to a third person to bring the person who is required to
be present in the court, in the court. Which method is to be used in a particular situation
depends on the judicial officer, who is guided by the provisions of this code. 

The code classifies all criminal cases into summons cases and warrant cases. A case is a
warrant case if the offence is punishable by death, imprisonment for life or imprisonment for
more than two years.  A summons case is a case that is not a warrant case. Thus, The basis of
classification is the seriousness of the offence. Since summons case contains a lesser
sentence, there is less probability of the accused violating the court order. Therefore,
generally, a summons is issued for a summons case and a warrant is issued for a warrant case.
However, when a Summons is not productive in making a person appear before the court, the
count may issue a warrant to a police officer or any other person to forcibly produce the
required person before the court. 

Warrant of Arrest
A warrant of arrest is a written authority given by a competent magistrate for the arrest of a
person. It is a more drastic step than the issue of a summons. It is addressed to a person,
usually a police officer, to apprehend and produce the offender in front of the court. 
Essential Elements of a valid warrant – 
1. The warrant must clearly mention the name and other particulars of the person to be
arrested. As per Section 70(1), every warrant of arrest shall be in writing. It must be signed
by the presiding officer of the court and must bear the seal of the court. As per section 70(2),
a warrant remains in force until it is canceled or is executed. Normally, Form 2 of Second
schedule is used to write a warrant.
2. It must show the person to whom the authority to arrest has been given. As per Section 72,
a warrant is normally directed to one or more police officers but, if necessary, the court may
direct it to any other person or persons.  Further, section 73provides that a magistrate may
direct a warrant to any person within his jurisdiction for the arrest of any escaped convict,
proclaimed offender, or of any person who is accused of a non-bailable offence and is
evading arrest.
3. It may include a direction that if the person arrested under the warrant executes a bond and
gives security for his attendance in court, he shall be released. Warrant with such a direction
is called as bailable warrant of arrest.
4. It must clearly specify the offence.

Procedure for issuing a Warrant

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

Procedure for executing a Warrant

As per section 75, A warrant can be executed by showing the substance of the warrant to the
person being arrest. If required, the warrant must be shown to the person arrested. Section
76 mandates that the person executing the warrant must produce the arrested person before

13
the magistrate without unnecessary delay and within 24 hours excluding the time taken for
travel from the place of arrest to the magistrate. 

As per section 77, a warrant may be executed anywhere in India. Section 78 specifies that if

a warrant is to be executed outside the local jurisdiction of the court issuing it, such court
may send it to the Executive Magistrate or District Superintendent of Police or Commissioner
of Police within the local limits of whose jurisdiction it is to be executed instead of directing
it to the police officer within the jurisdiction of the issuing court. 

Section 79 specifies the procedure for executing a warrant outside the local jurisdiction of the
issuing court as follows – 
(1) When a warrant directed to a police officer is to be executed beyond the local jurisdiction
of the Court issuing the same, he shall ordinarily take it for endorsement either to an
Executive Magistrate or to a police officer not below the rank of an officer in charge of a
police station, within the local limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such endorsement
shall be sufficient authority to the police officer to whom the warrant is directed to execute
the same, and the local police shall, if so required, assist such officer in executing such
warrant.
(3)Whenever there is reason to believe that the delay occasioned by obtaining the
endorsement of the Magistrate or police officer within whose local jurisdiction the warrant is
to be executed will prevent such execution, the police officer to whom it is directed may
execute the same without such endorsement in any place beyond the local jurisdiction of the
Court which issued it.

When can a court issue a Warrant in a case in which it is empowered to issue summons
As per Section 87 a court may issue a warrant even in a case in which it is empowered only
to issue a summons. A court can issue a warrant either before issuing a summons or even
after issuing a summons. It may do so if it has reason to believe that the person has
absconded or that the person will not obey the summons. Further, a court may issue a warrant
if the summons was duly served and still the person fails to appear before it at the required
date and time without any reasonable excuse. The court must record its reasons to do so.

It must be noted that Section 204 empowers the court to issue a summons even for a warrants
case if it believes that a summons is sufficient to enforce the appearance of the person before
it, while Section 87 empowers the court to issue a warrant even in a summons cases, if
reasonable causes exist. In general, a warrant ought not to be issued where a summons can
serve the purpose and care should be exercised by the court to satisfy itself that upon the
materials present before it, it was necessary to issue a warrant. In Anoop Singh vs
Cheelu AIR 1957, it was held that this applies to an accused as well as a witness. But where
the court has no power to issue a summons, it cannot issue a warrant under this section. In P
K Baidya vs Chaya Rani AIR 1995, it was held that when a witness avoids his appearance
in spite of the summons being appropriately served, court can take steps for securing his
presence under this section. 

When can a warrant be issued for recovery of a fine

Section 421 - Warrant for levy of fine-
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may
take action for the recovery of the fine in either or both of the following ways, that is to say, it
may,-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property
belonging to the offender;

14
(b) issue a warrant to the Collector of the district, authorizing him to realize the amount as
arrears of land revenue from the movable or immovable property, or both, of the defaulter:

Provided that, if the sentence directs that in default of payment of the fine, the offender shall
be imprisoned, and if such offender has undergone the whole of such imprisonment in
default, no Court shall issue such warrant unless, for special reasons to be recorded in
writing, it considers it necessary so to do, or unless, it has made an order for the payment of
expenses or compensation out of the fine under Section 357.
(2) The State Government may make rules regulating the manner in which warrants under
Clause (a) of sub-section (1) are to be executed, and for the summary determination of any
claims made by any person other than the offender in respect of any property attached in
execution of such warrant.
(3) Where the Court issues a warrant to the Collector under Clause (b) of sub-section (1), the
Collector shall realize the amount in accordance with the law relating to recovery of arrears
of land revenue, as if such warrant were a certificate issued under such law:

Provided that no such warrant shall be executed by the arrest or detention in prison of the
offender.

Q. When is a person declared Absconder? Explain the procedure for publication of

proclamation for persons absconding with reference to Sections 82, 83, 84, 85.  

When a person is hiding from his place of residence so as to frustrate the execution of a
warrant of arrest, he is said have absconded. A person may hide within his residence or
outside away from his residence. If a person comes to know about the issuance of a process
against him or if he anticipates such a process and hides or quits the country, he is said to
have absconded. In Kartary vs State of UP, 1994, All HC held that when in order to evade
the process of law a person is hiding from (or even in) his place of residence, he is said to
abscond. A person is not said to abscond merely when he has gone to a distant place before
the issuance of a warrant. Similarly, it is necessary that the person is hiding himself and it is
not sufficient that an inspector is unable to find him.

Normally, if a person fails to appear before the court even after being served a summons, the
court issues a warrant of arrest. However, if the person absconds to avoid the arrest, the
drastic step of Proclamation for Persons Absconding needs to be taken, which is described
in Section 82..

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

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

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

As per section 82(2), the proclamation must be read in some conspicious place of the town or
village in which the person resides. It shall also be affixed to some conspicuous part of the
house in which the person resides or to some conspicuous place of the town or village.
Further, a copy of the same must also be affixed to some conspicious part of the court house.
The court may also direct a copy of the proclamation to be published in a daily newspaper
circulating in the place is which such person ordinarily resides.

15
The terms of Section 82 are mandatory and a proclamation cannot be issued without first
issuing a warrant of arrest. Therefore, as held in Bishnudayal vs Emperor AIR 1943, if
there is no authority to arrest, the issuing of proclamation would be illegal.

Consequences of Proclamation
Section 83 - Attachment of property of person absconding – 
The publication of proclamation in accordance with the procedure described in section 82, is
the last of the steps taken to produce a person before the court. If the person still fails to
appear before the court, Section 83 empowers the court to attach the property of the person
who is absconding at any time. The court must record the reasons for doing so. The property
can be movable or immovable. The property can be any property within the district or even
outside the district of the District magistrate of the other district endorses the proclamation.

Further, if, at the time of making proclamation, the court is satisfied that the person is about
to dispose of his property or is about to move his property out of the jurisdiction of the court,
it may order the attachment of the property simultaneously with the issue of proclamation.

If the property to be attached is a debt or is movable property, the attachment is done either
by seizure, by the appointment of a receiver, by an order ins writing prohibiting the deliver of
sch property to the proclaimed person or to anyone on his behalf. Court can also use any one
or more of these modes as it thinks fit. If the property is immovable, it can be attached by
taking possession, by appointing a receiver, by an order prohibiting the payment of rent to the
proclaimed persons or by any or all of these methods.

Section 84 provides a means to protect the interests of any person other than the proclaimed
person in the attached property. Any such person who has an interest in the attached property
can claim it within six months from the date of attachment on the ground that the claimant
has an interest in the property and the interest is not liable to be attached under section 83.
The claim shall be inquired into and may be allowed or disallowed in whole or in part.

(1) If any claim is preferred to, or objection made to the attachment of, any property attached
under section 83, within six months from the date of such attachment, by any person other
than the proclaimed person, on the ground that the claimant or objector has an interest in such
property, and that such interest is not liable to attachment under section 83, the claim or
objection shall be inquired into, and may be allowed or disallowed in whole or in part:
Provided that any claim preferred or objection made within the period allowed by this sub-
section may, in the event of the death of the claimant or objector, be continued by his legal
representative.

(2) Claims or objections under sub-section (1) may be preferred or made in the Court by
which the order of attachment is issued, or, if the claim or objection is in respect of property
attached under an order endorsed under sub-section (2) of section 83, in the Court of the
Chief Judicial Magistrate of the district in which the attachment is made.

(3) Every such claim or objection shall be inquired into by the Court in which it is preferred
or made:
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may
make it over for disposal to any Magistrate subordinate to him.
(4) Any person whose claim or objection has been disallowed in whole or in part by an order
under sub-section (1) may, within a period of one year from the date of such order, institute a
suit to establish the right which he claims in respect of the property in dispute; but subject to
the result of such suit, if any, the order shall be conclusive.
16
Section 85 - Release, Sale, and restoration of the property –
(1) If the proclaimed person appears within the time specified in the proclamation, the Court
shall make an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation,
the property under the attachment shall be at the disposal of the State Government; but it shall
not be sold until the expiration of six months from the date of the attachment and until any
claim preferred or objection made under section 84 has been disposed of under that section,
unless it is subject to speedy and natural decay, or the Court considers that the sale would be
for the benefit of the owner; in either of which cases the Court may cause it to be sold
whenever it thinks fit.

(3) If, within two years from the date of the attachment, any person whose property is or has
been at the disposal of the State Government, under sub-section (2), appears voluntarily or is
apprehended and brought before the Court by whose order the property was attached, or the
Court to which such Court is subordinate, and proves to the satisfaction of such Court that he
did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and
that he had not such notice of the proclamation as to enable him to attend within the time
specified therein such property, or, if the same has been sold, the net proceeds of the sale, or,
if part only thereof has been sold, the net proceeds of the sale, and the residue of the property,
shall, after satisfying therefrom all costs incurred in consequence of the attachment, be
delivered to him.

Q. 8 What is meant by Commencement of proceedings? [Sec 200, 201, 202] When can a
complaint be dismissed?[Sec 203]  
"Commencement of proceedings" happens with the proceedings that take place after "taking
of cognizance" of an offence by a magistrate under Section 190, which can happen either on a
complaint by any person, a police report, any other source other than a police officer, or upon
his own knowledge. However, when cognizance is take upon a complaint made by any
person, it is critical to examin the complainant to ensure that the complaint is genuine before
starting the trial and summoning an accused. According to 41st Law Report, everyday
experience of the court shows that a vast number of complaints to the magistrate are ill
founded and therefore they should be carefully considered at the very start and those which
are not very convincing on the face should be subjected to further scrutiny so that an accused
person is summoned only in substantial cases. What this means is that frivolous and
vexatious cases that are just meant to harass an accused must be weeded out. This is exactly
the objective of Section 200, which implores a magistrate to examin the compainant under
oath and any witnesses. 

Section 200 says: A Magistrate taking cognizance of an offence on complaint shall examine

upon oath the complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate.
Provided that, when the complaint is made in writing, the Magistrate need not examine the
complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a
Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under
section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under
section 192 after examining the complainant and the witnesses, the latter Magistrate need not
re-examine them.

17
In MacCulloch vs State, 1974, it was held by SC that the provisions of section 200 are not a
mere formality, but have been intended by the legislature to be given effect to for the
protection of the accused persons against unwarranted complaints. 

It is also necessary that to start the trial process, the magistrate must be competant to take
cognizance the alleged offence. Section 201 says that if the magistrate is not competant to
take congnizace of an offence, he shall (a) if the complaint is in writing, return it for
presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not
in writing, direct the complainant to the proper Court.

To further protect a person from frivolous cases arising from complaints from private
parties, Section 202 empowers a magistrate to inquire into the case himself or direct an
investigation to be made by a police officer or by such other person as he thinks fit, for the
purpose of deciding whether or not there is sufficient ground for proceeding and he can
postpone the issue for process for this purpose.

It is important to note that the "weeding" as envisaged by Section 200-203 is only applicable
to cases where cognizance is taken by the magistrate upon a complaint by a private party. It is
not applicable to cognizance taken upon a police report.

Issue of Process (Section 204)

Once it is determined that a prima facie case exists against the accused, the magistrate
proceeds with the case as per Section 204 by the way of issuing a process.  Which means :
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground
for proceeding, and the case appears to be – 
(a) a summons-case, he shall issue his summons for the attendance of the accused, or
(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the
accused to be brought or to appear at a certain time before such Magistrate or (if he has no
jurisdiction himself) some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a
list of the prosecution witnesses has been filed.

(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant
issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable,
no process shall be issued until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.

(5) Nothing in this section shall be deemed to affect the provisions of section 87 (Section 87: 
Issue of warrant in lieu of, or in addition to, summons).

Dismissal of a Complaint - Section 203

As mentioned before, upon receiving a complaint, a magistrate can conduct an inquiry or
direct investigation of the complaint under Section 202(1). Section 203 empowers a
magistrate to dismiss the complaint, if, after considering the statements on oath from the
complainant or his witnesses or the result of the inquiry or investigation, he believes that
there are no sufficient grounds for proceeding further. He must record the reasons for
dismissal. The magistrate must apply his mind on the collected statements and inquiry report
to determine whether there is any merit in the complaint. However, as held by SC
in Chandra Deo Singh vs Prokash Chandra Bose, 1963, the test specified by Section
203 for dismissing a complaint is only whether sufficient grounds exist for proceeding further
and not whether sufficient grounds exist for conviction.  Thus, even if the magistrate does not
18
see sufficient grounds for conviction but sees sufficient ground for proceeding further with
the trial, he must not dismiss the complaint. SC further observed that where there is a prima
facie evidence against the accused, even though the accused might have a defence, the issue
of process cannot be refused because the hearing of defence must be done at the appropriate
stage and at appropriate forum.

Q. What is an offence? 
General Concept of Offence
A violation of a penal law is an offence. Thus, any act which is deemed as an offence by any
law is an offence. In general, such act which causes a violation of rights of others or cause
harm to others and is so dangerous that is also affects the society at large is designated as
offence by the legislature through the acts of the parliament. Section 2(n) of CrPC defines an
offence as follows - 
Section 2(n) - "Offence" means any act or omission made punishable by any law for the time
being in force and includes any act in respect of which a complaint may be made under
section 20 of the Cattle-trespass Act, 1871.
Further Section 39(2) says that act committed outside India is also an offence if that act
would be an offence if committed in India.

It is important to note that an act is not offence unless it is clearly defined as an offence by
any piece of legislature. Thus, to be an offence, the legislature must designate it to be an
offence. Several Acts and Legislations defines such acts which constitute offences. The main
among them is the Indian Penal Code. It defines acts ranging from theft and murder to fraud
and criminal breach of trust and makes them offences. Examples of other acts which defines
offences are Wildlife Protection Act, Prevention of Corruption Act, Narcotic Drugs and
Psychotropic Substances Act, Environmental Protection Act. These Acts defines certain
activities related to the focus of the Act as offences. Some Acts such as Prevention of
Corruption Act and Narcotic Drugs and Psychotropic Substances Act also specify the mode
of trial for the offences that they define, while some specify that trial for their offences will
be held as per the provisions of Cr PC.

Q. What is Bail? 
The purpose of arrest and detention of a person is primarily to make sure that the person
appears before the court at the time of trial and if he is found guilty and is sentenced to
imprisonment, he must be made available to serve his sentence. However, if it is reasonably
evident that the person charged with an offence can be made available for the above
mentioned purposes without keeping him imprisoned, then it is unfair to keep him in custody
until his guilt is proven. It is a violation of a person's fundamental right to restrict the person's
liberty without any just cause. 

Bail is one such mechanism which is used to ensure the presence of an accused whenever
required by the court. CrPC does not define the term Bail, but essentially, Bail is an
agreement in which a person makes a written undertaking to the court. A person who is in
custody, because he or she has been charged with an offence or is involved in pending
criminal proceedings, may apply to be released on Bail. Normally, in signing a bail
agreement a person undertakes that he will be present every time the matter is in court until
the proceedings are finished, will comply with any conditions set out in the agreement as to
conduct while on Bail, and will forfeit a specified sum of money if the person fails, without
proper excuse, to comply with any term or condition of the agreement.  Two authorities that
may grant bail are the police and the courts. A person may be required to provide a security
as well. But it is not necessary. A person may also be let off on his own bond. In the case
ofMoti Ram vs State of MP, AIR 1978, SC held that a Bail covers both release on one's
own bond with or without surety.
19
Q. What is a Bailable and Non-Bailable offence? 
An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable
offence is an offence of relatively less severity and for which the accused has a right to be
released on bail. While a non-bailable offence is a serious offence and for it, the accused
cannot demand to be released on bail as a right. More specifically, Section 2(a) defines
Bailable Offence as well as Non-Bailable Offence as follows – 

Section 2 (a) - Bailable offence" means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the time being in force: and "non-
bailable offence" means any other offence.

Interesting thing is that the definition itself does not refer to seriousness of the offence. It
simply makes those offences as bailable which are listed as so in the First Schedule of Cr P
C. These offences include offences such as obstructing a public servant from discharging his
duties, bribing an election official, and providing false evidence. Non-bailable offences
include offences such as murder, threatening a person to give false evidence, and failure by a
person released on bail or bond to appeal before court. However, a quick look at the list of
bailable and non-bailable offences shows that bailable offences are of relatively less severity.

Q. When and When not can Bail be granted? 

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

The working of the bail system in India was highlighted in the case of Hussainara Khaton
vs Home Secretory, 1980. It came to the courts attention for the first time that thousands of
people were rotting in jails for 3 to 10 years for petty crimes which do not have punishment
more than 6 months to an year. This was because they were unable to pay bond money for
bail and the courts were too backlogged to hear their cases. In this respect, J Bhagwati
observed that the courts must abandon the antiquated concept under which pretrial release is
ordered only against bail with sureties.

Thus, in general, the intention of the justice system is to give bail and not jail before the
accused is convicted. It is said that since the accused is presumed innocence, he must be
released so that he can fight for his defense. Thus, releasing a person on bail is a rule, while
denying bail is an exception.

Provisions for Bail can be categorized by the type of offence committed i.e. bailable offence
or non-
bailable offence – 

Bail for Bailable offences – 

A person accused of a bailable offence can demand to be released on bail as a matter of right.
This is provided for by Section 436.
Section 436 - When any person other than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer in charge of a police station, or appears or
is brought before a court, and is prepared at, any, time while-in the custody of such officer or
at any stage of the proceeding before such court to give bail, such person shall be released on
bail.
20
Further, such officer or court, if he or it thinks fit, may, instead of taking bail from such
person, discharge him on his executing a bond without sureties for his appearance.
Section 50(2) imposes an obligation on the police officer to notify the detained person about
his right to get bail if he is detained on a bailable offence.
The right to bail cannot be nullified by imposing a very high amount for bail. Section 440(1)
specifically provides that the amount of bail cannot be unreasonably high.
An amendment to Section 436 mandates that an indigent person, who is unable to provide
any bail amount, must be released. If a person is unable to provide bail amount for a week,
then he can be considered indigent.
Section 436 A allows a person to be released on his own surety if he has already spent half
the maximum sentence provided for the alleged crime in jail. However, this does not apply if
death is one of the punishments specified for the offence.

Bail for Non-Bailable offences – 

When a person is detained for a non-bailable offence, he cannot demand to be released on
bail as a matter of right. He can, however, request the court to grant bail. The provisions in
this case are governed by Section 437

Section 437 - When any person accused of, or suspected of, the commission of any non-
bailable offence is arrested or detained without warrant by an officer-in-charge of a police
station or appears or is brought before a Court other than the High Court or Court of session,
he may be released on bail.  If it appears to such officer or Court at any stage of the
investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for
believing that the accused has committed a non-bailable offence, but there are sufficient
grounds for further inquiry into his guilt, the accused shall be released on bail, or, at the
discretion of such officer or Court, on the execution by him of a bond without sureties for his
appearance. A police officer or the court may also release a person from custody if he feels
that there are any special reasons. But he must record his reasons in writing.

Supreme Court, in the case of Narsimhulu, AIR 1978, has given a set of considerations that
must be given while giving bail in case of non-bailable offences. These are – 
1. the nature of the crime
2. the nature of the charge, the evidence, and possible punishment
3. the possibility of interference with justice
4. the antecedents of the applicant
5. furtherance of the interest of justice
6. the intermediate acquittal of the accused
7. socio-geographical circumstances
8. prospective misconduct of the accused
9. the period already spent in prison
10. protective and curative conditions on which bail might be granted.

If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable
offence is not concluded within a period of sixty days from the first date fixed for taking
evidence in the case, such person shall, if he is in custody during the whole of the said period,
be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in
writing, the Magistrate otherwise directs.
If, at any time, after the conclusion of the trial of a person accused of a non-bailable offence
and before judgment is delivered, the Court is of opinion that there are reasonable grounds for
believing that the accused is not guilty of any such offence, it shall release the accused, if he
is in custody, on the execution by him of a bond without sureties for his appearance to hear
judgment delivered.

21
If the investigation is not done within 24 hours, the arrested person must be bought before the
court and if required, the police must make a case to extend the detention. The court may
extend the detention by 15 days. However, the detention cannot extend more than 60 days (or
90 days, if the offence is punishable by death or imprisonment for life), after which the
accused must be released on bail. This provision applies for bailable as well as non-bailable
offence.
Section 436 A allows a person to be released on his own surety if he has already spent half
the maximum sentence provided for the alleged crime in jail. However, this does not apply if
death is one of the punishments specified for the offence.

Conditions on Bail
As per Section 437, if any person accused of an offence punishable with 7 yrs or more of
imprisonment is released on bail, the court may impose any condition on the bail to ensure
that the person will attend the court in accordance with the bond executed by him, or to
ensure that the person will not commit a similar offence or otherwise in interest of justice.

Special Powers of Hight Court and Court of Session regarding Bail

Section 439 gives special powers to High Court and Court of Session regarding bails. These
are as follows – 
1. A High Court or Court of Sessions may direct that any person accused of an offence and in
custody be released on bail. It may also impose any condition which it considers necessary. It
may set aside or modify any condition imposed by a Magistrate when releasing any person on
bail.

2. The High Court or the Court of Sessions shall, before granting bail to a person who is
accused of an offence which is triable exclusively by the Court of Sessions or which, though
not so triable, is punishable with imprisonment for life, give notice of the application for bail
to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is
not practicable to give such notice.

3. A High Court or Court of Sessions may direct that any person who has been released on
bail under this chapter be arrested and commit him to custody.

When can bail be denied – 

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

2. It is clear that the provision for bail in case of non-bailable offences gives a discretionary
power to the police and and court. However, this power is not totally without any
restraint. Section 437 disallows bail to be given in the following conditions.
1. if there appears reasonable grounds for believing that the person has been guilty of an
offence punishable with death or imprisonment for life;
2. if such offence is a cognizable offence and the person has been previously convicted
of an offence punishable with death, imprisonment for life or imprisonment for seven
years or more, or he had been previously convicted on two or more occasions of a
non-bailable and cognizable offence.  The person  may, however, be released on bail
if such person is under the age of sixteen years or is a woman or is sick or infirm. 
3. Persons accused of Dowry Death - 
22
Cancellation of Bail
Although there was no provision for cancellation of the bail in the old code, the SC in Talib's
case (AIR 1958) held the absence of such provision as a lacuna and recognized the power of
High Court of cancellation of bail. In the new code, as per section 437 (5) any Court which
has released a person on bail under section 437(1) or 437(2), may direct that such person be
arrested and commit him to custody. This basically cancels the bail. However, it must be
noted that only the court that has given the bail can cancel it. Thus, a bail given by a police
officer cannot be canceled by a court under this section. To do so the special power of High
Court or Court of Session under Section 439 has to be invoked. The new Section 439
explicitly gives the power to High Court and Court of Session to direct that any person who
has been released on bail be arrested and to commit him to custody.

The power given by Section 439 for cancellation has no riders. It is a discretionary power. It
is not necessary that some new events should take place subsequent to the offender's release
on bail for the Sessions Judge to cancel his bail, however, the court usually bases its decision
of cancellation on subsequent events. For example, in the case of Surendra Singh vs State
of Bihar 1990, Patna HC pointed out that a bail may be cancelled on following grounds – 
1. When the accused was found tampering with the evidence either during the investigation
or during the trial
2. when the accused on bail commits similar offence or any heinous offence during the period
of bail.
3.when the accused had absconded and trial of the case gets delayed on that account.
4. when the offence so committed by the accused had caused serious law and order problem
in the society
5. if the high court finds that the lower court has exercised its power in granting bail wrongly
6. if the court finds that the accused has misused the privileges of bail
7. when the life of accused itself is in danger

Appeal Provision for Bail

It has been held that an order granting bail is an interlocutory order and so it cannot be
challenged under the revisional jurisdiction of the Session Court or High Court. In general,
there is no right of appeal against the decision of refusing the bail. However, a person can
alway file for Special Leave Petition to High Court or Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of refusal of
bail to special courts.

Q. What do you understand by Anticipatory bail? When is it granted and when it may
be refused? What is the difference between the general provisions of anticipatory bail
and regular bail? 
It has been observed that many cases are instigated against a person just because of political
motivation or personal vendetta. They lack enough evidence and are meant to harass a person
by getting him arrested. When a person apprehends such situation he may apply to Court of
Session or the High Court under Section 438 for a direction that he be released on bail upon
his arrest. This provision is commonly known as Anticipatory Bail, i.e bail in anticipation of
an arrest. Anticipatory bail is technically an incorrect term because a bail can be given only if
a person has already been arrested. In this case, the court directs that the person be released
on bail as soon as he is arrested. Thus, it is a direction to provide bail and not the bail itself.

Section 438 - When any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence, he may apply to the High Court or
the Court of Sessions for a direction under this section, and that Court may, if it thinks fit,
direct that in the event of such arrest, he shall be released on bail.

23
While applying under this section, the person has to explain the circumstances because which
he believes he might be arrested. Mere hunch or fear is not enough. He must also provide
such evidence that shows there is a reasonable probability that he will be arrested on
accusation of a non-bailable offence. Further, the direction under this section can be given
only upon a specific offence. A generic direction or a blanket order to be released whenever
the applicant is arrested and on whatever offence is not allowed. 

In granting such a direction the court takes into account the following considerations – 
1. The nature and gravity of the accusation.
2. The antecedents on the applicant including the fact as to whether he has previously been
imprisoned upon a conviction by a court in respect of a cognizable offence.
3. The possibility of the accused to flee from justice
4. whether the accusation has been made with the object of injuring or humiliating the
applicant by having him arrested.

The order may also include conditions such as the person shall make himself available for
interrogation by a police officer whenever required, the person shall not leave India, the
person shall not make any inducement, threat, or promise to any person acquainted with the
facts of the case, or any other condition that the court may think fit.

It is clear from Section 438(1) that the power to grant anticipatory bail is given concurrently
to Court of Session and High Court. Thus, a person can approach either of the courts to get
this relief.

As per Section 438 A, the court may also grant an interim order and in that case an
opportunity is given to the public prosecutor present his arguments on why the applicant
should not be given bail. Further, as per Section 438 B, if the court finds it necessary, it may
require the applicant to be present personally at the time of final determination of the interim
order.

A bail under the direction of this section is equivalent to the bail given under Section 437(1)
and so it is applicable until the conclusion of the trial. 

Refusal of Anticipatory Bail

Although, there is no specific provision that prohibits granting anticipatory bail, there are
certain situations where such bail is normally not granted.  These are - 
1. In case of dowry death or wife harassment.
2. In case of economic offences
3. In case of atrocious crimes

Anticipatory bail cannot be applied for after the person is arrested. After arrest, the accused
must seek remedy under Section 437.

Some high courts have held that the grounds mentioned in Section 437 for denying regular
bail are applicable for anticipatory bail as well. Thus, a person accused of an offence that
entails a punishment of death or life imprisonment will not be given anticipatory bail.
In general, the court has a wide discretion in granting anticipatory bail. So the court may deny
this relief if it feels that it is not in the interest of justice.

Cancellation of Anticipatory Bail

There is no specific provision that allows a court to cancel the order of anticipatory bail.
However, in several cases it has been held that when Section 438 permits granting
24
anticipatory bail, it is implicit that the court making such order is entitled upon appropriate
considerations to cancel or recall the order.

Q. Explain general provisions concerning bond [Sec 441 - 450]. Explain the procedure
that is followed when a bond is forfeited [Section 446]. 

Bond
As per Section 441, before any person is released on bail or is released on his own bond, a
bond for an appropriate sum of money shall be executed by the person and if required by one
or more sureties, stating that the person will appear before the court at the given date and time
mentioned in the bond.
In other words, a bonds provides a kind of monetary guarantee that the person being released
will appear before the court as and when required.

General Provisions of Bonds -  ( ABNRI DDFFIMAL)

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

Procedure on forfeiture of a Bond

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

25
Q. What is a Charge? What are the contents of a Charge? Discuss the effects of errors
in a Charge? How is a Charge different from FIR?   

Charge
As per Wharton's law Lexicon, Charge means to prefer an acusation against some one. To
charge a person means to accuse that person of some offence. However, charge is not a mere
accusation made by a complainant or an informant. A charge is a formal recognition of
concrete accusations by a magistrate or a court based upon a complaint or information against
the accused. A charge is drawn up by a court only when the court is satisfied by the prima
facie evidence against the accused. The basic idea behind a charge is to make the accused
understand what exactly he is accused of so that he can defend himself. A charge gives the
accused accurate and precise information about the accusation against him.A charge is
written in the language of the court and the fact that the charge is made means that every
legal condition required by law to constitute the offence charged is fulfilled in the particular
case.

It is a basic principle of law that when a court summons a person to face a charge, the court
must be equipped with at least prima facie material to show that the person being charged is
guilty of the offences contained in the charge. Thus, while framing a charge, the court must
apply its mind to the evidence presented to it and must frame a charge only if it is satisfied
that a case exists against the accused. In the case of State vs Ajit Kumar Saha 1988, the
material on record did not show a prima facie case but the charges were still framed by the
magistrate. Since there was no application of mind by the magistrate, the order framing the
charges was set aside by the High Court.

According to Section 2(b) of Cr P C, when a charge contains more than one heads, the head
of charges is also a charge. 

Contents of a Charge
Section 211 specifies the contents of a Charge as follows [ONDSLP] – 
(1) Every charge under this Code shall state the offence with which the accused is charged.
(2) If the law that creates the offence gives it any specific name, the offence may be described
in the charge by that name only.
(3) If the law that creates the offence does not give it any specific name so much of the
definition of the offence must be stated as to give the accused notice of the matter with which
he is charged.
(4) The law and section of the law against which the offence is said to have been committed
shall be mentioned in the charge.
(5) The fact that the charge is made is equivalent to a statement that every legal condition
required by law to constitute the offence charged was fulfilled in the particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused, having been previously convicted of any offence, is liable, by reason of
such previous conviction, to enhanced punishment, or to punishment of a different kind, for a
subsequent offence, and it is intended to prove such previous conviction for the purpose of
affecting the punishment which the court may think fit to award for the subsequent offence,
the fact date and place of the previous, conviction shall be stated in the charge; and if such
statement has been omitted, the court may add it at any time before sentence is passed.

A charge must list the offence with which the person is charged. It must specify the law and
the section against which that offence has been done. For example, if a person is charged with
Murder, the charge must specify Section 300 of Indian Penal Code. If the law gives a name to
that offence, the charge must also specify that name and if the law does not specify any name

26
for that offence, the charge must specify the detail of the offence from the definition of the
offence so that the accused is given a clear idea of it. 

In many cases, on offender is given a bigger sentence for subsequent offence. In such cases,
the charge must also state the date and place of previous conviction so that a bigger
punishment may be given.

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

Time and Place of the offence

Further, as per section 212, the charge must also specify the essential facts such as time,
place, and person comprising the offence.  For example, if a person is charged with Murder,
the charge must specify the name of the victim and date and place of the murder. In case
of Shashidhara Kurup vs Union of India 1994, no particulars of offence were stated in the
charge. It was held that the particulars of offence are required to be stated in the charge so
that the accused may take appropriate defence. Where this is not done and no opportunity is
afforded to the accused to defend his case, the trial will be bad in law for being violative of
the principles of natural justice.

It is possible that exact dates may not be known and in such cases, the charge must specify
information that is reasonably sufficient to give the accused the notice of the matter with
which he is charged. In cases of criminal breach of trust, it will be enough to specify gross
sum or the dates between which the offence was committed.

Manner of committing the offence

Some times, even the time and place do not provide sufficient notice of the offence which
which a person is charged. In such situations, Section 213, mandates that the manner in
which the offence was made must also be specified in the charge. It says that when the nature
of the case is such that the particulars mentioned in sections 211 and 212 do not give accused
sufficient notice of the matter with which he is charged, the charge shall also contain such
particulars of the manner is which the alleged offence was committed as will be sufficient for
that Purpose.

27
Illustrations- 
(a) A is accused of the theft of a certain article at a certain time and place the charge need not
set out the manner in which the theft was effected
(b) A is accused of cheating B at a given time and place. The charge must be set out the
manner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge must set out
that portion of the evidence given by A which is alleged to be false.
(d) A is accused of obstructing B, a public servant, in the discharge or his public functions at
a given time and place. The charge must set out the manner obstructed B in the discharge of
his functions.
(e) A is accused of the murder of B at a given time and place. The charge need not state the
manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save punishment. The
charge must set out the disobedience charged and the law infringed.

Effects of errors in a Charge

In general, an error in a Charge is not material unless it can be shown that the error misled the
accused or that the error caused injustice. Section 215 says, "No error in stating either the
offence or the particulars required to be stated in the charge, and no omission to state the
offence shall be regarded at any stage of the case as material, unless the accused was in fact
misled by such error or omission, and it has occasioned a failure of justice."

Illustrations:
(a) A is charged under section 242 of the Indian Penal Code (45 of 1860), with "having, been
in possession of counterfeit coin, having known at the time when he became possessed
thereof that such coin was counterfeit," the word "fraudulently" being omitted in the charge.
Unless it appears that A was in fact misled by this omission, the error shall not be regarded as
material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the
charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account
of the transaction. The court may infer from this that the omission to set out the manner of the
cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the
charge. There were many transactions between A and B, and A had no means of knowing to
which of them the charge referred, and offered no defence. Court may infer from such facts
that the omission to set out the manner of was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January 1882. In fact, the
murdered person's name was Haidar Baksh, and the date of the murder was the 20th January.
1882. A was never charged with any murder but one, and had heard the inquiry before the
Magistrate, which referred exclusively to the case of Haidar Baksh. The court may infer from
these facts that A was not misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882, and Khoda
Baksh (who tried to arrest him for that murder) on the 21st January, 1882. When charged for
the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses
present in his defence were witnesses in the case of Haidar Baksh. The court may infer from
this that A was misled, and that the error was material.

The above illustrations show that when the accused in not misled, the error is not material.
For example, in the case of Rawalpenta Venkalu vs State of Hyderabad, 1956, the charge
failed to mention the Section number 34 of IPC but the description of the offence was
mentioned clearly. SC held that the the section number was only of acedemic significance
and the ommission was immaterial.

28
Section 464 further provides that an order, sentence, or finding of a court will not be deemed
invalid merely on the ground that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any misjoinder  of charges, unless in the
opinion of the court of appeal, confirmation, or revision, a failure of justice has in fact
happened because of it. If such a court of appeal, confirmation, or revision find that a failure
of justice has indeed happened, in case of omission, it may order that a charge be
immediately framed and that the trial be recommenced from the point immediately after the
framing of the charge, and in case of error, omission, or irregularity in the charge, it may
order new trial to be held upon a charge framed in whatever manner it thinks fit.

As is evident, the object of these sections is to prevent failure of justice where there has been
only technical breach of rules that does not affect the root of the case as such. As held in the
case of Kailash Gir vs V K Khare, Food Inspector, 1981, the above two sections read
together lay down that whatever be the irregularity in framing the charge, it is not fatal unless
there is prejudice caused to the accused.

Further, Section 216 allows the court to alter the charge anytime before the judgement is
pronounced. 

Section 216:
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial
is not likely, in the opinion of the court to prejudice the accused in his defence or the
prosecutor in the conduct of the case the court may, in its discretion, after such alteration or
addition has been made, proceed with the trial as if the altered or added charge had been the
original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in
the opinion of the court to prejudice the accused or the prosecutor as aforesaid, the court may
either direct a new trial or adjourn the trial for such period as may be necessary.
(5) lf the offence stated in the altered or added charge is one for the prosecution of which
previous section is necessary, the case shall not be proceeded with until such sanction is
obtained, unless sanction had been already obtained for a prosecution on the same facts as
those on which the altered or added charge is founded.

Thus, even if there is an error in a charge, it can be corrected at a later stage. An error in a
charge is not important as long as the accused in not prejudiced and principles of natural
justice are not violated.

Difference between Charge and FIR

A First Information Report is a description of the situation and the act that constitutes a
cognizable offence as given to the office in charge of a police station by any person. Such
information is signed by the person giving the information. If the information is given orally,
it is reduced in writing by the officer in charge, read over to the informant, and then signed by
the person. The substance of this information is also entered into a register which is
maintained by the officer. This is the first time when an event is brought to the attention of
the police. The objective of the FIR is to put the police in motion for investigating the
occurrence of an act, which could potentially be a cognizable offence. 

An FIR is a mere allegation of the happening of a cognizable offence by any person. It

provides a description of an event but it may not necessarily provide complete evidence. No
judicial mind has to be applied while writing the FIR. However, upon receipt of an FIR, the
29
police investigates the issue, collects relevant evidence, and if necessary, places the evidence
before a magistrate. Based on these preliminary findings of the police, the magistrate then
formally prepares a charges , with which the perpetrator is charged.

Thus, an FIR is one path that leads to a Charge. An FIR is vague in terms of the offences but
Charge is a precise formulation of the offences committed. An FIR is a description of an
event, while a Charge is a description of the offences committed in that event. An FIR may or
may not name an offender but a charge is always against a person. An FIR is always of a
cognizable offence, but a charge may also include a non-cognizable offence.

Q. Explain the principle of separate charges for distinct offences. Are there any
exceptions? (sec 218, 219, 220, 221, 223). When can multiple offences be charged
separately, when can they be tried in the same/different trial? What do you understand
by Joinder of charges?
The initial requirement in conducting a fair trial in criminal cases is a precise statement of the
charges of the accused. This requirement is ensured by CrPC through Sections 211 to 214,
which define the contents of a charge.  Precise formulation of charges will amount to nothing
if  numerous unconnected charges are clubbed together and tried together. To close this
gap, Section 218 enunciates the basic principle that for every distinct offence there should be
a separate charge and that every such charge must be tried separately. 

Section 218 says thus – 

(1) For every distinct offence of which any person is accused there shall be a separate charge
and every such charge shall be tried separately:
Provided that where the accused person, by an application in writing, so desires and the
Magistrate is of opinion that such person is not likely to be prejudiced thereby the Magistrate
may try together all or any number of the charges framed against such person.

Illustration
A is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A
must be separately charged and separately tried for the theft and causing grievous hurt.

The object of Section 218 is to save the accused from being frustrated in his defense if
distinct offences are lumped together in one charge or in multiple charges but tried in the
same trial. Another reason is that the court may become prejudiced against the accused if he
were tried in one trial for multiple charges resting on different evidence since it might be
difficult for the court not be get influenced on one charge by evidence against him on other
charges. 
It must be noted that Section 218 says "distinct offences" must be charged and tried
separated. It does not say "every offence" or "each offence". It has been held in Banwarilal
Jhunjhunwala vs Union of India AIR 1963, that "distinct offence" is different from "every
offence" and "each offence". Separate charge is required for distinct offence and not
necessarily for every offence or each offence. Two offences are distinct if they are not
identical and are not in any way interrelated. A distinct offence may distinguished from other
offences by difference in time or place of commitment, victims of the offence, or by
difference in the sections of the law which make the acts as offence.

However, a strict observance to Section 218 will lead to multiplicity of trials, which is also
not desirable. Therefore sections 219 to 223 provide certain exceptions to this basic rule.
These are as follows - 
Exception 1. Three offences of the same kind within a year - Section 219 - When a person
is accused of more than one offences of the same kind within a span of twelve months, he
may be charged and tried at one trial for any number of such offences not exceeding three.
30
For example, if a person is accused of theft in three different homes in the span 12 months, he
can be charged with all the three at once and tried at the same trial. The period of 12 months
is counted from the occurance of the first offence up to the last offence.  
An offence is considered to be of the same kind if it is punishable by the same amount of
punishment under the same section of IPC or of the local or special law. Further, if the
attempt to commit an offence is an offence, then it is considered an offence of the same kind
for the purpose of this section.

Exception 2. Offences committed in the course of same transaction - Section 220(1) - If a
person commits multiple offences in a series of acts that constitutes one transaction, he may
be charged with and tried in one trial for every such offence. The code does not define the
meaning of the term transaction. However, it is well accepted that a precise definition of
transaction is not possible and even Supreme Court has not attempted to define it. In case
of State of AP vs Cheemalapati Ganeshwara Rao, AIR 1963, SC observed that, it would
always be difficult to define precisely what the expression means. Whether a transaction is to
be regarded as same would depend upon the facts of each case. But is is generally thought
that were their is proximity of time, place, or unity of purpose and design or continuity of
action in a series of acts, it may be possible that they form part of the same transaction. It is
however not necessary that every one of these elements should coexist for considering the
acts as part of the same transaction.

For example, A commits house-breaking by day with intent to commit adultery, and commits
in the house so entered, adultery with B's wife. A may be separately charged with, and
convicted of, offences under sections 454(Lurking house trespass or house breaking with an
intention to commit offence punishable with imprisonment) and 497(Adultery) of the Indian
Penal Code.

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

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

Exception 4 -  Same act falling under different definitions of offences - Section 220(3)
- If an act constitutes an offence under two or more separate definitions of any law in force,
the person may be charged with and tried at one trial for each of the offences. For example, A
wrongfully strikes B with a cane. This act constitutes an offence as per Section 323
(Voluntarily causing hurt) as well as Section 252 (Assult or criminal force otherthan on grave
provocation). Thus, the person may be charged with both and tried for both the offences at
the same trial.

Exception 5 - Acts forming an offence, also constituting different offences when taken
separately or in groups -  Section 220(4) - When several acts together constitute an offence
and those acts, which taken individually or in groups, also constitune another offence or
offences, the person committing those acts may be be charged with and tried at one trial. For
example, A commits robbery on B, and in doing so voluntarily causes hurt to him. A may be
separately charged, with and convicted of offences under sections 323(Voluntarily causing
hurt), 392(Robbery) and 394(Voluntarily causing hurt while committing robbery) of the
Indian Penal Code.
 
Exception 6 - Where it is doubtful what offence has been committed -  Section 221 - If a
single act or a series of acts is of such nature that it is doubtful which of the several offence
the facts of the case will constitute, the accused may be charged with having committed all or
31
any of such offences and all or any of such charges may be tried at once. Further, in such a
situation, when a person is charged with an offence but according to evidence it appears that
he committed another offence, he may be convicted of the offence which he is shown to have
committed even if he is not charged with that offence. For example,  A is accused of an, Act
which may amount to theft, or receiving stolen property, or criminal breach of trust or
cheating. He may be charged with theft, receiving stolen property, criminal breach of trust
and cheating, or he may be charged with having committed theft, or receiving stolen property
or criminal breach of trust or cheating.
Further, in the same case mentioned, lets say, A is only charged with theft and it appears that
he committed the offence of criminal breach of trust, or that of receiving stolen goods. He
may be convicted of criminal breach of trust of receiving stolen goods (as the case may be)
though he was not charged with such offence.

Another illustration is as follows - A states on oath before the Magistrate that he saw B hit C
with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged
in the alternative and convicted of intentionally giving false evidence, although it cannot to
be proved which of these contradictory statements was false.

Exception 7 - Certain persons may be charged jointly - Section 223 - The following
persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit,
such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section
219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal
misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or
concealment of, property possession of which is alleged to have been transferred by any such
offence committed by the first-named persons, or of abetment of or attempting to commit any
such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of
1860) or either of those sections in respect of stolen property the possession of which has
been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860)
relating to counterfeit coin and persons accused of any other offence under the said Chapter
relating to the same coin, or of abetment of or attempting to commit any such offence; and
the provisions contained in the former part of this Chapter shall, so far as may be, apply to all
such charges :

Provided that where a number of persons are charged with separate offences and such persons
do not fall within any of the categories specified in this section, the Magistrate may, if such
persons by an application in writing, so desire, and if he is satisfied that such persons would
not be prejudicially affected thereby, and it is expedient so to do, try all such persons
together.

Q. What are the preliminary pleas that can be used to bar a trial? "Every offence shall
ordinarily be inquired and tried by court within the local limits of whose jurisdiction it
was committed." Explain the statement and state its exceptions, if any.

General Concept
When an accused appears or is brought before the court for a trial, he may raise certain pleas
or objections to avoid the trial. For example, he may plead that the court does not have
32
jurisdiction in the case or that the offence happened too long ago, or that he has already been
tried and acquitted for the same offence. Such pleas are meant to stop the trial from
proceeding further and discharge the accused. However, such pleas may also be raised by
prosecution when the court does not have competency or jurisdiction in the case.
Such pleas are supposed to be brought forth at the beginning of a trial or as soon as charges
are framed. However, there is no explicit direction in Cr P C regarding the timing for such
pleas.

The follow are the pleas that can be raised – 

1. Court without Jurisdiction - Jurisdiction of criminal courts is of two kinds. One that
determines the competency of the court to try a specific offence and the other that determines
whether the offence happened in the territory of the court, which is also known as territorial
jurisdiction.

Competency of the Court to try the offence - Section 26 read with column 6 of the first
schedule determines which court can try a given offence. For example, offences against
public tranquility can be tried by any magistrate while the offence of counterfeiting a
government stamp can be tried only by a Court of Session. Similarly, only the prescribed
court or magistrate has the power for all the offences defined in IPC and other laws. 
Thus, any party to the proceeding can raise the plea that the court is not competent to try the
concerned offence. Section 461 provides that it any magistrate, who is not empowered to try
an offence, tries the offender for that offence, the proceedings shall be void.
Also, an executive magistrate has no power to try for any offence. 

Further, as per Section 479, no magistrate or judge can try any case in which he is a party or
in which he is interested. If a trial is initiated in violation of this rule, a plea can be raised in
this regard.

Territorial Jurisdiction - This jurisdiction is determined according to Section 177 to 188 of

CrPC. These rules have been enacted mainly for the purpose of convenience of the court, the
investigating agency, the accused, and the victim. The general concept is that only the court
in whose territory the offence or any part of offence has happened, can try that offence. In
simple terms, an offence committed in Mumbai cannot be tried in a court in Delhi.  However,
most case are not as simple as that. For example, A hurts B by a knife in Dewas and D dies
because of the wound in Indore. In this case, both the courts in Dewas and Indore have
jurisdiction. However, if the victim B lives in Bhopal and if FIR of his death is filed in
Bhopal, can A be tried in Bhopal? If not, and if A is tried in Bhopal, A can raise a pleas to bar
the trial in Bhopal.

Any violation of the rules of territorial jurisdiction does not ipso factor vitiate the trial unless
it has in fact resulted in failure of justice.  However, if a plea of territorial jurisdiction is
raised in the beginning of the trial, then such objection must be sustained and the trial must be
stopped. It cannot gain legitimacy under Section 462 in that case.

2. Time barred proceedings - Earlier, any offence committed could have been taken
cognizance of after any number of years. This caused grave injustice to the accused as
important witnesses became unavailable, or important evidence was destroyed by time. For
these reasons, CrPC has now incorporated some general rules for taking cognizance of the
crimes within a specific period of their happening. In general, the principle that offences
punishable with only fine or with imprisonment up to 3 yrs should be tried within a limited
time.  The provisions regarding such limitations are contains in Section 467 to 473 and an
accused can take advantage of the appropriate section to raise the plea that the case against
him is barred by the prescribed period of limitation. 
33
Section 468 contains the basic rule which provides that no court shall take cognizance of an
offence punishable with fine only or with imprisonment up to  three yrs after the expiry of the
period of limitation. The period of limitations are – 
1. 6 months, if the offence is punishable by fine only.
2. 1 yr, if the offence is punishable with imprisonment of a term not exceeding 1 yr.
3. 3 yrs, if the offence is punishable with imprisonment of a term not exceeding 3 yr.

These provisions are subject to any other provision which might have been created
explicitly for any particular offence.
Trial of offences of serious nature, i.e. offences which entail punishment of imprisonment of
more than 3 yrs, or death, as of yet, are not barred by any time limitation.

3. Plea of autrefois acquit and autrefois convict - This means that if the offender has
already been tried for the exact same offence before and he has been either acquitted or
convict in that trial, he cannot be tried again on that offence. Art 20(2) of the constitution
recognizes this principle as a fundamental right. It says that no person shall be prosecuted and
punished for the same offence more than once. While the article gives this right only upon
previous conviction, section 300 fully incorporates this principle.

4. Disabilities of the accused -  Under the broad interpretation of Article 21 by Supreme

Court, an accused has a fundamental right to be represented by a legal practitioner in his trial.
If he is indigent, it is the responsibility of the state to provide a lawyer for him. Section 304
also requires the court to assign a pleader for the accused in certain situations.  If this is not
done, a plea can be raised in this regard. If the trial still proceeds, despite the objects, the trial
is deemed to be vitiated.

Further, when the accused is of unsound mind and consequently incapable of making his
defence, the code requires the court to postpone the trial until the accused has ceased to be so.
The accused can raise this plea for objecting the trial.

5. Principle of issue estoppel – 

6. Application of res judicata – 

Q. Discuss the causes of Juvenile Delinquency. Who is a child in need of care and

protection? State the procedure followed by Juvenile Justice Court. State the orders
that can be passed for delinquent children under this act. Describe the main features of
Juvenile Justice (Care and Protection) Act, 2000. What protections are given by the
legislature and the judiciary to juvenile delinquents? 

Causes of Juvenile Delinquency

Common sense stuff
Reasons for enacting this act – 
WHEREAS the Constitution has, in several provisions, including clause (3) of article 15,
clauses (e) and (f) of article 39, articles 45 and 47, impose on the State a primary
responsibility of ensuring that all the needs of children are met and that their basic human
rights are fully protected;
AND WHEREAS, the General Assembly of the United Nations has adopted the Convention
on the Rights of the Child on the 20th November, 1989;
AND WHEREAS, the Convention on the Rights of the Child has prescribed a set of
standards to be adhered to  by all State parties in securing the best interests of the child;
AND WHEREAS, the Convention on the Rights of the Child emphasizes social reintegration
34
of child victims, to the extent possible, without resorting to judicial proceedings;
AND WHEREAS, the Government of India has ratified the Convention on the 11th
December, 1992.
AND WHEREAS, it is expedient to re-enact the existing law relating to juveniles bearing in
mind the standards prescribed in the Convention on the Rights of the Child, the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the
Beijing rules), the United Nations Rules for the Protection of Juveniles Deprived of their
Liberty (1990), and all other relevant international instruments.

BE it enacted by Parliament in the Fifty-first Year of the Republic of India as follows:-

Art 15(3) -  State can make any special provision for women and children.
Art 39 (e) - It shall be the duty of the state to ensure that the health and strength of workers,
men and women, and the tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or strength;
Art 39 (f) - It shall be the duty of the state to ensure that children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and
against moral and material abandonment.

Art 45/Now Art 21A - The State shall endeavor to provide, within a period of ten years from
the commencement of this Constitution, for free and compulsory education for all children
until they complete the age of fourteen years. 
Art 47 - The State shall regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its primary duties and, in
particular, the State shall endeavor to bring about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
Art 51(k) - It shall be the duty of the citizen of India who is a parent or guardian to provide
opportunities for education to his child or, as the case may be, ward between the age of six
and fourteen years.

Child in need of care and protection [OPMUNEVACCC]

As per Section 2(d), "child in need of care and protection" means a child –
1. who is found without any home or settled place or abode and without any ostensible
means of subsistence,
2. who resides with a person (whether a guardian of the child or not) and such person
has threatened to kill or injure the child and there is a reasonable likelihood of the
threat being carried out, or has killed, abused or neglected some other child or
children and there is a reasonable likelihood of the child in question being killed,
abused or neglected by that person,
3. who is mentally or physically challenged or ill children or children suffering from
terminal diseases or incurable diseases having no one to support or look after,
4. who has a parent or guardian and such parent or guardian is unfit or incapacitated to
exercise control over the child,
5. who does not have parent and no one is willing to take care of or whose parents have
abandoned him or who is missing and run away child and whose parents cannot be
found after reasonable inquiry,
6. who is being or is likely to be grossly abused, tortured or exploited for the purpose of
sexual abuse or illegal acts,
7. who is found vulnerable and is likely to be inducted into drug abuse or trafficking,
8. who is being or is likely to be abused for unconscionable gains,
9. who is victim of any armed conflict, civil commotion or natural calamity;

35
Neglected Child
The term neglected child has been removed from the current JJA and has been replaced with
"Child in need of care and protection" defined above. The old act defines "neglected juvenile"
as a juvenile who-
(i) is found begging; or
(ii) is found without having any home or settled place of abode and without any ostensible
means of subsistence and is destitute;
(iii) has a parent or guardian who is unfit or incapacitated to exercise control over the
juvenile; or
(iv) lives in a brothel or with a prostitute or frequently goes to any place used for the purpose
of prostitution, or is found to associate with any prostitute or any other person who leads an
immoral, drunken or depraved life;
(v) who is being or is likely to be abused or exploited for immoral or illegal purposes or
unconscionable gain;

Section 2(k) - "juvenile" or "child" means a person who has not completed eighteenth year
of age;
Section 2(l) - "juvenile in conflict with law" means a juvenile who is alleged to have
committed an offence;
Section 2(b) - "Begging" means – 
   i. soliciting or receiving alms in a public place or entering into any private premises for the
purpose of soliciting or receiving alms, whether under any pretence; 
    ii. exposing or exhibiting with the object of obtaining or extorting alms, any sore, wound,
injury, deformity or disease, whether of himself orof any other person or of an animal;

Composition and Procedure followed by Juvenile Justice Court.

Composition
As per Section 4 
(1) The State Government may constitute for a district or a group of districts specified in the
notification, one or more Juvenile Justice Boards for exercising the powers and discharging
the duties conferred or imposed on such Boards in relation to juveniles in conflict with law
under this act. 

(2) A Board shall consist of a Metropolitan Magistrate or a Judicial Magistrate of the first
class, as the case may be, and two social workers of whom at least one shall be a woman,
forming a Bench and every such Bench shall have the powers conferred by the Code of
Criminal Procedure, on a Metropolitan Magistrate or, as the case may be, a Judicial
Magistrate of the first class and the Magistrate on the Board shall be designated as the
principal Magistrate. 

(3) No Magistrate shall be appointed as a member of the Board unless he has special
knowledge or training in child psychology or child welfare and no social worker shall be
appointed as a member of the Board unless he has been actively involved in health,
education, or welfare activities pertaining to children for at least seven years. 

(4) The term of office of the members of the Board and the manner in which such member
may resign shall be such as may be prescribed. 

(5) The appointment of any member of the Board may be terminated after holding inquiry, by
the State Government, if – 
i. he has been found guilty of misuse of power vested under this act,
ii. he has been convicted of an offence involving moral turpitude, and such conviction has not
36
been reversed or he has not been granted full pardon in respect of such offence,
iii. he fails to attend the proceedings of the Board for consecutive three months without any
valid reason or he fails to attend less than three fourth of the sittings in a year.

Section 5 - Procedure
(1) The Board shall meet at such times and shall, observe such rules of procedure in regard to
the transaction of business at its meetings, as may be prescribed.
(2) A child in conflict with law may be produced before an individual member of the Board,
when the Board is not sitting.
(3) A Board may act notwithstanding the absence of any member of the Board, and no order
made by the Board shall be invalid by reason only of the absence of any member during any
stage of proceedings: Provided that there shall be at least two members including the
principal Magistrate present at the time of final disposal of the case.
(4) In the event of any difference of opinion among the members of the Board in the interim
or final disposition, the opinion of the majority shall prevail, but where there is no such
majority, the opinion of the principal Magistrate, shall prevail.

Section 6 - Powers of the Board

(1) Where a Board has been constituted for any district or a group of districts, such Board
shall, have power to deal exclusively with all proceedings under this Act, relating to juvenile
in conflict with law.

(2) The powers conferred on the Board by or under this Act may also be exercised by the
High Court and the Court of Session, when the proceedings comes before them in appeal,
revision or otherwise. 

Orders that can be passed for delinquent children

Section 15 - Orders that may be passed regarding a Juvenile
1. Where a Board is satisfied on inquiry that a juvenile has committed an offence, then
notwithstanding anything to the contrary contained in any other law for the time being in
force, the Board may, if it thinks so fit,-
(a) allow the juvenile to go home after advice or admonition following appropriate inquiry
against and counseling to the parent or the guardian and the juvenile;
(b) direct the juvenile to participate in group counseling and similar activities;
(c) order the juvenile to perform community service;
(d) order the parent of the juvenile or the juvenile himself to pay a fine, if he is over fourteen
years of age and earns money;
(e) direct the juvenile to be released on probation of good conduct and placed under the care
of any parent, guardian or other fit person, on such parent, guardian or other fit person
executing a bond, with or without surety, as the Board may require, for the good behavior and
well-being of the juvenile for any period not exceeding three years;
(f) direct the juvenile to be released on probation of good conduct and placed under the care
of any fit institution for the good behavior and well-being of the juvenile for any period not
exceeding three years;
(g) make an order directing the juvenile to be sent to a special home,-
i. in the case of juvenile, over seventeen years but less than eighteen years of age for a period
of not less than two years;
ii. in case of any other juvenile for the period until he ceases to be a juvenile :
Provided that the Board may, if it is satisfied that having regard to the nature of the offence
and the circumstances of the case it is expedient so to do, for reasons to be recorded, reduce
the period of stay to such period as it thinks fit.

37
2. The Board shall obtain the social investigation report on juvenile either through a
probation officer or a recognized voluntary organization or otherwise, and shall take into
consideration the findings of such report before passing an order.

3. Where an order under clause (d), clause (e) or clause (f) of sub-section (1) is made, the
Board may, if it is of opinion that in the interests of the juvenile and of the public, it is
expedient so to do, in addition make an order that the juvenile in conflict with law shall
remain under the supervision of a probation officer named in the order during such period,
not exceeding three years as may be specified therein, and may in such supervision order
impose such conditions as it deems necessary for the due supervision of the juvenile in
conflict with law .
Provided that if at any time afterwards it appears to the Board on receiving a report from the
probation officer or otherwise, that the juvenile in conflict with law has not been of good
behavior during the period of supervision or that the fit institution under whose care the
juvenile was placed is no longer able or willing to ensure the good behavior and well-being of
the juvenile it may, after making such inquiry as it deems fit, order the juvenile in conflict
with law to be sent to a special home.
The Board shall while making a supervision order under sub-section (3), explain to the
juvenile and the parent, guardian or other fit person or fit institution, as the case may be,
under whose care the juvenile has been placed, the terms and conditions of the order shall
forthwith furnish one copy of the supervision order to the juvenile, the parent, guardian or
other fit person or fit institution, as the case may be, the sureties, if any, and the probation
officer.

In case of Municipal Corporation of Delhi vs Rattanlal, 1971, it was held that while
allowing the release of a juvenile, the court should consider the following - circumstances of
the case, circumstances of the accused, age, and family background.

Section 16 Orders that may not be passed against a Juvenile

(1) Notwithstanding anything to the contrary contained in any other law for the time being in
force, no juvenile in conflict with law shall be sentenced to death or life imprisonment, or
committed to prison in default of payment of fine or in default of furnishing security :
Provided that where a juvenile who has attained the age of sixteen years has committed an
offence and the Board is satisfied that the offence committed is of so serious in nature or that
his conduct and behavior have been such that it would not be in his interest or in the interest
of other juvenile in a special home to send him to such special home and that none of the
other measures provided under this Act is suitable or sufficient, the Board may order the
juvenile in conflict with law
to be kept in such place of safety and in such manner as it thinks fit and shall report the case
for the order of the State Government. 

(2) On receipt of a report from a Board under sub-section (1), the State Government may
make such arrangement in respect of the juvenile as it deems proper and may order such
juvenile to be kept under protective custody at such place and on such conditions as it thinks
fit :

Provided that the period of detention so ordered shall not exceed the maximum period of
imprisonment to which the juvenile could have been sentenced for the offence committed.

In Rejesh Kheton vs State of W B, 1983, it was observed that the main object of the
provision contained in Section 16 of the act is to prevent the juvenile from the contact of
hardened criminals so that they are saved from contamination.

38
In Sheela Barse vs U of I, AIR 1986, it was held that juveniles should not be held in jail but
in Shelter Homes.

Observation Home -  Section 8

Special Home - Section 9
Bail to Juvenile - Section 12

Protections given by the legislature and the judiciary to juvenile delinquents

Protection by Legislature - The legislature has enacted several laws for the protection of
Juveniles. Most important among them is Juvenile Justice (Care and Protection) Act, 2000.

Legal Protection
Through Juvenile Justice (Care and Protection) Act, 2000, several measures have been
adopted to ensure that a juvenile is not punished or treated like hardened criminals. Some of
the measures are – 

1. Hearing of cases involving juvenile by Juvenile Justice Board

2. Bail Provisions for juvenile
3. No prison term to juvenile.
4. No joint proceeding of Juvenile and Non Juvenile
5. Removal of disqualification attached to conviction

Social Protection
Juvenile Justice Act also contains measures to ensure that a juvenile in conflict of law is
given opportunities to reform.
1. Establishment of Observation and Special Home
2. Education and Training facilities

Preventive Measures
1. Several acts such as employment of juveniles in dangerous activities, forcing
juveniles to beg, or steal, or giving intoxicating substances to a juvenile, publication
of names or other details of a juvenile in conflict of law in media, have been made
cognizable offences by JJA.
2. Supervision by Probation Officer to ensure that a juvenile is not influenced by bad
elements.
Several other acts such as Factories Act, 1948 include provisions for protection of Juveniles.

Constitutional Provisions
Article 21A - Right to education
Article 24 Prohibition of employment of children in factories, etc.  No child below the age of
fourteen years shall be employed to work in any factory or mine or engaged in any other
hazardous employment.
Article 39 provides that that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment. 
Article 45 Provision for free and compulsory education for children 
Protections given by Judiciary
Judiciary has always been very sympathetic to the cause of Juveniles. Even before
appropriate laws were enacted, Judiciary promoted directives for the protection of juveniles
through its judgement. For example, it was the judiciary, which emphasized on Education for
children by making it a fundamental right under Article 21.

39
Q. Discuss the aims and objectives of Probation of Offenders Act, 1958. State the
powers of the court regarding release of certain offenders on probation of good
behavior under this act. Explain the offenses in which a court can and cannot grant the
benefit of probation. Explain the procedure followed against the offender who breaches
the probation conditions. Section 360 of CrPC and Section 4 of Probation of Offenders
Act both empower the court to release a convicted offender on probation of good
behavior. Which section has overriding effect? 

Mahatma Gandhi once said, "Hate the crime not the criminal". This means that we need to
eliminate crime and eliminating criminals is not the way to do it. While it is true that
punishment gives a sense of satisfaction to the victims and to the society in general, it has
been observed that in most of the cases punishment, specially imprisonment, does not
actually reform the criminal. In most cases, once a person comes out of a prison, he gets back
to his old ways of being in conflict with the law. This is true even more with young criminals,
whose minds are not fully mature. They get influenced in the wrong way because of their
interaction with hardened criminals in jails.

One way to counter this problem is to provide opportunities and guidance to young and first
time offenders instead of committing them to jails. The idea behind such treatment is that,
normally, human beings do not resort to crime unless they are forced due exceptional
circumstances. If we want to reduce crime, we should make sure that chance criminals are
given an opportunity to get reformed instead of turning into hardened criminals. This is the
aim behind Probation of Offender's Act, 1958. It allows the court to take into account the
nature of the crime, the age of the offender, and the circumstances of the crime, and instead
of committing the offender to jail, release him under supervision and guidance of a probation
officer. This ensures that the offender is integrated back into the society. The act is based on
the reformatory approach, which is adopted in many countries of the world. For example, in
USA, almost 60% of the offenders are released on probation. 

The object of probation has been laid down in the judgment of Justice Horwill in In re B.
Titus - S. 562 is intended to be used to prevent young persons from being committed to jail,
where they may associate with hardened criminals, who may lead them further along the path
of crime, and to help even men of mature years who for the first time may have committed
crimes through ignorance or inadvertence or the bad influence of others and who, but for such
lapses, might be expected to make good citizens. In such cases, a term of imprisonment may
have the very opposite effect to that for which it was intended. Such persons would be
sufficiently punished by the shame of having committed a crime and by the mental agony and
disgrace that a trial in a criminal court would involve.

It must, however, be kept in mind that reformation does not always work. Some crimes are so
abhorrent  and some criminals are so unrepentant that it is best to punish them so that the
price of committing the crime keeps them from committing it again. For some of them, there
is no hope for reform, and it is best to protect the society from them by locking them away for
life.

Main Features of the Act / Powers of the court regarding release of certain offenders
Depending on the circumstances of the case, a court may release the person in two ways -
release after admonishing the person, which is provided in Section 3, and release on
probation of good conduct, which is provided in Section 4. Both are explained below.
Release After Admonishing
Admonishing means to warn or reprimand. In this mode of release, the court scolds the
person, and in a way, tries to appeal to the good conscious of the person and releases
him. Section 3 says thus: 
40
When any person is found guilty of having committed an offence punishable under Section
379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code or
any offence punishable with imprisonment for not more than two years, or with fine, or with
both, under the Indian Penal Code or any other law, and no previous conviction is proved
against him and the court by which the person is found guilty is of opinion that, having regard
to the circumstances of the case including the nature of the offence and the character of the
offender, it is expedient so to do, then, notwithstanding anything contained in any other law
for the time being in force, the court may, instead of sentencing him to any punishment or
releasing him on probation of good conduct under section 4, release him after due
admonition.

The conditions required to be released under this section are – 

1. The offence must be punishable with imprisonment for less than 2 yrs or with only fine or
with both. Or if the offence is punishable under any of the Sections 379, 380, 381, 404, and
420.

2. The offender does not have any prior convictions.

If the above conditions are satisfied, then the court must take into consideration the nature of
the crime and the antecedents and character of the offender and if it thinks suitable, it can
release the offender after warning.

Release on Probation
As per Section 4, if any person is found guilty of having committed an offence not
punishable with death or imprisonment for life and the court by which the person is found
guilty is of opinion that, having regard to the circumstances of the case including the nature
of the offence and the character of the offender, it is expedient to release him on probation of
good conduct, then, notwithstanding anything contained in any other law for the time being in
force, the court may, instead of sentencing him at once to any punishment, direct that he be
released on his entering into a bond, with or without sureties, to appear and receive sentence
when called upon during such period, not exceeding three years, as the court may direct and
in the meantime to keep the peace and be of good behavior. The section further requires that
the offender or his surety has a fixed place of residence or regular occupation in a place
where the court exercises jurisdiction.

Also, before making any such order, the court shall take into consideration the report, if any,
of the probation officer concerned in relation to the case. However, it is not necessary that the
court has to act on probation officers report. It can also gather information from other source
and on its own analysis.

The court may also require the offender to remain under the supervision of a probation officer
during certain period, if it thinks that it is in the interests of the offender and of the public. It
can also impose appropriate conditions which might be required for such supervision. In case
the court does specify such conditional release, it must require the offender has to enter into a
bond, with or without sureties, enumerating the conditions. The conditions may relate to
place of residence, abstention from intoxicants, or any other matter as the court thinks
appropriate to ensure that the crime is not repeated.

As per Section 5, the Court directing the release of an offender under section 3 or section 4,
may, if it thinks fit, make at the same time a further order directing him to pay- 
(a) such compensation as the court thinks reasonable for loss or injury caused to any person
by the commission of the offence ; and
(b) such costs of the proceedings as the court thinks reasonable.
41
Offenses in which benefit of probation can and cannot be granted
Section 4, as described above, gives a general direction to the court for deciding when and
when not to give the benefit of probation. The words, "if the court is of the opinion" basically
give discretionary power to the court in this respect. Section 6, however, tries to impress
upon the court to lean in favor of giving benefit in cases of young and immature adults. When
any person under twenty-one years of age is found guilty of having committed an offence
punishable with imprisonment (but not with imprisonment for life), the court by which the
person is found guilty shall not sentence him to imprisonment unless it is satisfied that,
having regard to the circumstances of the case including the nature of the offence and the
character of the offender, it would not be desirable to deal with him under section 3 or section
4, and if the court passes any sentence of imprisonment on the offender, it shall record its
reasons for doing so. For the purpose of satisfying itself whether it would not be desirable to
deal under section 3 or section 4, the court shall call for a report from the probation officer
and consider the report, if any, and any other information available to it relating to the
character and physical and mental condition of the offender.

Thus, even though no mathematical rule is given, the general intention of the legislature is to
give the benefit of probation as much as possible. In Jugal Kishore Prasad vs State of
Bihar 1972, the Supreme Court observed that the object of the Probation of Offenders Act,
"is in accordance with the present trend in the field of penology, according to which efforts
should be made to bring about correction and reformation of the individual offenders and not
to resort to retributive justice. Modern criminal jurisprudence recognizes that no one is a born
criminal and that a good many crimes are the product of socio-economic milieu." 

In absence of a precise formula to determine when and when not the benefit of probation can
be given, we have to look at SC court judgments to understand what kind of offenses are
eligible for this benefit. SC has accepted the applicability of probation for many kinds of
offences. For example, in Isherdas v. State of Punjab, the Supreme Court held that the
Probation of Offenders Act was applicable to the offenses under the Prevention of Food
Adulteration Act, 1954.

In case of Mohamad Aziz Mohamed Nasir vs State Of Maharashtra, AIR 1976, the

appellant was below 21 years of age. The appellant was at one time a well known child film
actor and won several awards for acting in films. Subsequently he fell in bad company and
took to evil ways. SC held that even if the point relating to Section 6 is not raised before the
High Court, the court was bound to take notice of the provisions of the section and give its
benefit to the applicant. It further held that Section 6 lays down an injunction not to impose a
sentence of imprisonment on a reason who is under 21 years of' age and if found guilty of
having committed an offence punishable with imprisonment other the that for if unless it is
satisfied that it would not be desirable to deal with him under Section 3 or Section 4. This
inhibition on the power of the court to impose a sentence of imprisonment applies not only at
the state of trial but also at the stage of High Court or any other court when the case comes
before it in appeal or revision.

However, in Uttam Singh vs Delhi Administration, 1971, the appellant was of 36 yrs of age
and was caught with 3 sets of playing cards and obscene photographs. SC refused to allow
him the benefit of release on probation having regards to his age and nature of crime.

There have been cases where the court has let of even rapists on probation and there have
been cases where even minor offenses have not been given the benefit of probation. It can be
said that this benefit is given on case to case basis after looking at the peculiarities of the
case. It is not possible to categorize the offences in this respect.

42
Procedure when the offender breaches the conditions of Probation
As per Section 9, if the court which passes an order under section 4 in respect of an offender
or any court which could have dealt with the offender in respect of his original offence has
reason to believe, on the report of a probation officer or otherwise, that the offender has failed
to observe any of the conditions of the bond or bonds entered into by him, it may issue a
warrant for his arrest or may, if it thinks fit, issue a summons to him and his sureties, if any,
requiring him or them to attend before it at such time as may be specified in the summons.

The court before which an offender is so brought or appears may either remand him to
custody until the case is concluded or it may grant him bail, with or without surety, to appear
on the date which it may fix for hearing.

If the court, after hearing the case, is satisfied that the offender has failed to observe any of
the conditions of the bond or bonds entered into by him, it may forthwith
(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without prejudice to the continuance in force
of the bond, impose upon him a penalty not exceeding fifty rupees.

(4) If a penalty imposed under clause (b) of sub-section (3) is not paid within such period as
the court may fix, the court may sentence the offender for the original offence.
It is important to note that the sentencing in respect of which the probation is given is merely
suspended when the offender is released on probation under Section 4. Thus, if any condition
of the probation is violated, the court may sentence the offender for the original offence
without conducting a fresh trial.

Probation Officer and his duties

As per Section 13, a probation officer under this Act shall be - (a) a person appointed to be a
probation officer by the State Government or recognised as such by the State. Government ;
or (b) a person provided for this purpose by a society recognized in this behalf by the State
Government; or (c) in any exceptional case, any other person who, in the opinion of the court,
is fit to act as a probation officer in the special circumstances of the case.

Section 14 - Duties of probation officers

A probation officer shall, subject to such conditions and restrictions, as may be prescribed,-
(a) inquire, in accordance with any directions of a court, into the circumstances or home
surroundings of any person accused of an offence with a view to assist the court in
determining the most suitable method of dealing with him and submit reports to the court.
(b) supervise probationers and other persons placed under his supervision and, where
necessary, endeavor to find them suitable employment ;
(c) advise and assist offenders in the payment of compensation or costs ordered by the court ;
(d) advise and assist, in such cases and in such manner as may be prescribed, persons who
have been released under section 4; and
(e) perform such other duties as may be prescribed.

Section 360 of CrPC and Section 4 of Probation of Offenders Act

As per Section 19, in the states where Probation of Offenders Act is enacted, Section 360 of
CrPC shall cease to apply. Thus, it is clear that Section 4 of Probation of Offenders Act has
overriding effect.

Section 360 of CrPC - Order to release on probation of good conduct or after admonition :--
(1)When any person not under twenty-one years of age is convicted of an offence punishable
with fine only or with imprisonment for a term of seven years or less, or when any person
under twenty-one years of age or any woman is convicted of an offence not punishable with
43
death or imprisonment for life, and no previous conviction is proved against the offender, if it
appears to the Court before which he is convicted, regard being had to the age, Character or
antecedents of the offender, and to the circumstances in which the offence was committed,
that it is expedient that the offender should be released on probation of good conduct, the
Court may, instead of sentencing him at once to any punishment, direct that he be released on
his entering into a bond, with or without sureties, to appear and receive sentence when called
upon during such period (not exceeding three years) as the Court may direct, and in the
meantime to keep the peace and be of good behavior.

Differences and Short Notes.

Summons Case and Warrant Case

As per Section 2(w), "summons-case" means a case relating to an offence, and not being a
warrant-case and as per Section 2 (x),  "warrant-case" means a case relating to an offence
punishable with death, imprisonment for life or imprisonment for a term exceeding two years.
Cr P C classifies an offence as either cognizable or non-cognizable, and a trial procedure as
summons case or warrant case. Thus, the terms summons case and warrant case are in
reference to the procedure adopted for the trial of the case. Thus, the difference between the
two can be seen from the point of view of their trial procedures as highlighted below – 

D2CCPAWO

Summons Case Warrant case

Cr PC prescribes two procedures for the trial of
Cr P C prescribes only one procedure for all
a warrant case my magistrate - one for case
summons cases, whether instituted upon a police
instituted upon a police report and one for case
report or otherwise.
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
the offence needs to be conveyed to the accused. 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, in his discretion, convict him on such plea. may convict him on his discretion.
Accused my plead guilty by post without appearing
Accused must appear personally.
before the magistrate.
Magistrate can discharge the accused if
The accused may be acquitted, if the complainant is complainant is absent, or no charge is framed, or
absent or if the complainant dies. if the offence is compoundable and non
cognizable.
The complainant may, with the permission of
The complainant may, with the permission of the the court, withdraw the remaining charges
court, withdraw the complaint against the accused. 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
if the accused is acquitted under S. 255, the acquittal and 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
warrant case. a summons case.

44
 Accused may get more than one opportunity to
Accused gets only one opportunity.
cross-examine the prosecution witness.
A charge under a warrant case cannot be split up
into its constituents for trial under summons
case.
After convicting the accused, the magistrate may
No such power to the magistrate in summons case. 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
summons cases. years are warrant cases.
Conversion
As per Section 259, a summons case can be
converted into a warrant case if the case relates to an
A warrant case cannot be converted into a
offence that entails more than 6 months of
summons case.
imprisonment as punishment and the judge feels that
in the interest of justice it the case should be tried as
a warrant case.

It is important to note that the question whether a summons or a warrant should be issued in
the case is not related to whether the case is a summons case or a warrant case.

Compoundable and Non Compoundable Offences - Some offences largely affect only the
victim and no considerable harm is considered to be done to the society. In such offences, if
the offender and victim compromise, there is no need to waste court's time in conducting a
trial. The process of reaching a compromise is called Compounding. Conceptually, such
offences, in which a compromise can be done and a trial can be avoided, are called
Compoundable offence. Rest of the offences are non-compoundable. Technically, offences
classified as Compoundable by Section 320 of Cr P C are compoundable. Section 320
specifies two kinds of Compoundable offences - one where permission of court is required
before compounding can be done for example, voluntarily causing grievous hurt, Theft,
criminal breach of trust, assault on a woman with intention to outrage her modesty, etc. and
one where permission of the court is not required for example, causing hurt, adultery,
defamation, etc. As per S. 320(3), if the abetment of an offence is an offence and if the
offence is compoundable then abetment is also compoundable.

Only the person, who is specified in the classification tables in Section 320, has the right to
compound the offence. The person is usually the victim. The offender cannot  demand
compounding as a right.

However, when an offender has been committed to trial or when he has been convicted and
his appeal is pending, compounding can only be done with the leave of the court to which he
is committed or to which the trial is pending. If an offender is liable for enhanced punishment
or a different punishment on account of a previous conviction, compounding cannot be done.
High Court and Court of Session may, under their power of revision in Section 401, can
allow any person to compound any compoundable offence.

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

45
Compoundable  Offence Section 320 Non Compoundable Offence
Offences classified as compoundable by S. 320 of
Rest of the offences
CrPC
Private party as well as society both are
Offence mostly affects a private party.
considerably affected by the offence.
The victim and the offender may reach compromise
No compromise is allowed. Even court does not
with or without the permission of the court
have the power to compound the offence.
depending on the offence.
Upon compromise, the offender is acquitted without Full trial is held and acquittal or conviction is
any trial. given as per the evidence.

In Bhima Singh vs State of UP, AIR 1974, SC held that when an offence is compoundable
with the permission of the court, such permission may be granted by SC while an appeal is
made against the conviction provided the parties have settled the matter amicably.

In Ram Lal vs State of J&K, 1999, SC held that when an offence is declared non-
compoundable by law, it cannot be compounded even with the permission of the court.
However, the court may take the compromise into account while delivering judgment. 

The case of B S Joshi vs State of Haryana, AIR 2003 is interesting in this regard. The case
was about the matter related to Section 498A, which is non-compoundable offence. In this
case, the parties reached a compromise but the High Court refused to quash the FIR, on the
ground that the offence is non-compoundable.  However, SC held that in the backdrop of the
interpretation of the various relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the inherent powers under Section 482 of the
Code, such power could be exercised either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may not be possible to lay down any precise,
clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and
to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. It
further observed that in this case, the parties were not asking for compounding the offence
but for quashing the FIR. It observed that since because of the amicable settlement, there is
no chance of conviction and in such a case the court has the power to quash the proceeding.

Information and Complaint

Information Complaint
As per Section 2(d), a complaint means any
allegation made orally or in writing to a
No legal definition. It is used in its regular magistrate, with a view to his taking action
English meaning. under this code (CrPC), that some person,
whether known or unknown, has committed an
offence, but does not include a police report.
The purpose of complaint is that the magistrate
No action from the magistrate is expected.
takes action on it and provide relief.
Magistrate takes cognizance of the offence as
No cognizance is taken.
per Section 190.
It may include information about commission of It is always about commission of an offence.
offences, apprehension about breach of peace,
and presence of absconder and suspected persons
46
to police officers or magistrate. Thus, an
information may not necessarily about an
offence.

Sufficient grounds for commitment and Sufficient grounds for conviction

Sufficient grounds for commitment Sufficient grounds for conviction
When a magistrate takes cognizance of an offence
under Section 190 (upon receipt of a complaint or
otherwise), he examines the complaint in accordance
with Section 200 by examining the facts and the Upon holding the trial, if the court is
witnesses. If he finds that the complaint is with merits, satisfied  with the evidence provided by the
the case is deemed committed for trial and the prosecute that the accused is guilty of the
magistrate issues the process under Section 204. If the alleged offence, he convicts the offender.
offence is exclusively triable by Court of Session, the
magistrate commits the case to Court of Session under
Section 209.
At this stage it is not considered whether the grounds The evidence must prove the guilt of the
are sufficient for conviction. accused without any doubt.

Discharge and Acquittal

Discharge Acquittal
Session Trial
If after evaluating the evidence given by the
Session Trial
prosecute, the judge considers that there is no
As per Section 227, if, upon consideration of the
evidence that the accused has committed the
record of the case and the documents submitted
offence, the judge acquits the offender
therewith, and after hearing the submissions of the
under Section 232. 
accused and the prosecution in this behalf, the
However, if the offender is not acquitted under
Judge considers that there is not sufficient ground
Section 232, he is permitted to give his
for proceeding against the accused, he shall
defense and evidence. After hearing the
discharge the accused and record his reasons for so
arguments of both the parties, the court may
doing.
acquit of convict the person under Section
235.
Warrant Trial By Magistrate
As per Section 239, if, upon considering the police
report and the documents sent with it under section
Warrant Trial By Magistrate
173 and making such examination, if any, of the
As per Section 248, if, in any case under this
accused as the Magistrate thinks necessary and
Chapter in which a charge has been framed,
after giving the prosecution and the accused an
the Magistrate finds the accused not guilty, he
opportunity of being heard, the Magistrate
shall record an order of acquittal.
considers the charge against the accused to be
groundless, he shall discharge the accused, and
record his reasons for so doing.
Discharge does not mean that the accused has not
Acquittal means that the accused has been held
committed the offence. It just means that there is
innocent.
not enough evidence to proceed with the trial.
If further evidence is gathered later on, the accused The accused cannot be tried again for the same

47
may be tried again. offence once he has been acquitted.

Cognizable offence and Non-cognizable offence

Cognizable offence Non Cognizable offence
Defined in Section 2(c) - "cognizable offence" Defined in Section 2(l) - "non-cognizable
means an offence for which, and "cognizable case" offence" means an offence for which, and "non-
means a case in which, a police officer may, in cognizable case" means a case in which, a police
accordance with the First Schedule or under any officer has no authority to arrest without
other law for the time being in force, arrest without warrant.
warrant. Example - keeping a lottery office,voluntarily
Examples - Murder, Dowry death, grevious hurt, causing hurt, dishonest misappropriation of
theft. property.
As per Section 155, Police has to enter
Police has to record information about a cognizable
information in register prescribed for it and refer
offence in writing as per Section 154.
the informant to a magistrate.
Police can start investigation without the order of a Police officer cannot investigate the case
magistrate. without the order of a magistrate.
In general, cognizable offences are of serious
nature which involve imprisonment of more than
three years. However, there is no such precise rule.
To be cognizable, an offence must be declared so
by the law defining that offence. Several offences
which carry less prison term such as rioting (2 yrs)
have been declared cognizable, while several with
bigger prison term such as False Evidence (7 yrs)
or Rape by a man with his own wife of not less
than 12 yrs have been declared non-cognizable.

First Information Report

The name FIR is given to the information given by any person about a cognizable offence
and recorded by the police in accordance with Section 154. As per this section, every
information relating to the commission of a cognizable offence, if given orally to an officer in
charge of a police station, shall be reduced to writing by him or under his direction, and be
read over to the informant; and every such information, whether given in writing or reduced
to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall
be entered in a book to be kept by such officer in such form as the State Government may
prescribe in this behalf.

SC in the case of State of Bombay vs Rusy Mistry, AIR 1960, defined FIR as so - A FIR
means the information, by whomsoever given, to the officer in charge of a police station in
relation to the commission of a cognizable offence and which is first in point of time and on
the strength of which the investigation into that offence is commenced.
Thus, FIR is nothing but information of the nature of a complaint or accusation about a
cognizable offence given by any person to the police so that the police can start investigation.
When a person reports any information about a cognizable offence to the police, the police is
bound to register a case and proceed with investigation.  However, for police to investigate
the matter, the offence must be a cognizable offence. The police is not allowed to investigate
a non-cognizable offence without an order from a magistrate. So, once the duty officer is
certain that the offence alleged to have been committed is a cognizable offence, he directs the

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complainant to put his statement in writing. In the presence of the complainant, the duty
officer shall complete all the columns in the FIR register with the information given by the
complainant. He shall then read out all the contents of the FIR registered to the complainant.
Once the complainant is certain that all the details have been correctly written, he should sign
the FIR.

FIR merely contains the facts of the offence as known by the informant. The FIR is a
statement by the complainant of an alleged offence. The informant is not required to prove
his allegations in any manner at the police station. It is the job of the police to ascertain facts,
verify details and substantiate the charges or otherwise. 

However, the facts must not be vague. The facts must divulge at least some concrete
information about the offence committed. In case of Tapinder Singh vs State, 1972, SC held
that when a telephone message did not disclose the names of the accused nor did it disclose
the commission of a cognizable offence, it cannot be called a FIR.

In case of State of UP vs R K Shrivastava, 1989, SC held that if the allegations made in an

FIR do not constitute a cognizable offence, the criminal proceeding instituted on the basis of
the FIR should be quashed.

Sometimes multiple persons may report the same incident and in such situation the police
must use commonsense and record one statement as FIR. Usually, the statement that contains
enough information to allow the police to proceed with investigation is recorded as FIR.

Evidentiary Value of FIR

A FIR is not substantive evidence that is, it is not evidence of the facts which it mentions.
However, it is very important since it conveys the earliest information about the occurrence
of an offence and it can be used to corroborate the information under Section 157 of Indian
Evidence Act or to contradict him under Section 145 of Indian Evidence Act, if the informant
is called as a witness in a trial. It is considered that FIR has a better corroborative value if it is
recorded before there is time and opportunity to embellish or before the memory of the
information becomes hazy. There must be a reasonable cause for the delay. For example, in
case of Harpal Singh vs State of HP, 1981, involving rape, the FIR was registered after 10
days. It was held that the delay was reasonable because it involved considerable matter of
honor for the family and that required time for the family to decide whether to take the matter
to court or not. As FIR can also be used in cross examination of the informant.
However, if the FIR is made by the accused himself, it cannot be used against him because of
Section 25 of Evidence act which forbids any confession made to the police to be used
against the accused.
A FIR can also be used as a dying declaration under Section 32 of Indian Evidence Act.

Summary Trial
1. A kind of fast track proceeding where a case is resolved in one sitting.
2. Meant for petty offenses, to reduce the burden of court
S. 260 -  When a case involving the following offenses comes to CJM, MM, and JMFC for
hearing, they have the discretionary power to decide whether they want to try the case
summarily or not. There are 9 such offences – 
any offence that does not have death, life imprisonment or imprisonment of more than 2 yrs
as punishment, theft, lurking house trespass, receiving stolen property, assisting in
concealment of stolen property, abetment of the offences covered under this section, attempt
of these offences.
If at any point in while trying the matter in this manner, if the court thinks that it is
undesirable to try the case summarily, it shall recall any witnesses who may have been
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examined and proceed to re-hear the case in the manner provided in this code (i.e. as a
summons trial or warrant trial)
S. 261 - High Court may give power to Judicial Magistrate Second class to try offences
involving imprisonment of less than 6 months summarily.
S. 262 - Sentence of imprisonment of more than 3 months cannot be passed in a summary
trial and the procedure adopted in a summary trial will be same as the procedure adopted in a
Summons case except the following changes – 
S. 263 - The judge must record the following particulars in the prescribed format - serial
number of the case, date of offence, date of complaint, name of complainant, name, age,
address, parentage of accused, offence complained and offence proved, plea of the accused
and his examination, findings, sentence, and date of termination of the proceeding.
S. 264 - If the accused does not plead guilty, the judge must record the substance of the
evidence and give reasons for the judgment.
S. 265 - Every the such record and judgment shall be in the language of the court. 

In Ram Lochan vs State, 1978, it was held that although trying a govt. servant summarily is
legal, it should not be done so because upon conviction, govt. servant may lose his job, which
is a serious loss.

Appeal and Revision in Summary Trials

No appeal lies if only a sentence of fine not exceeding 200/- is awarded. A revision
application would lie to the High Court in such a case.

The following topics are important for general understanding of CrPC

Unit 3 - Search and Seizure
What are the general principles relating to Search (Refer to Sec 99, 100, and 101)?. Can the
police search without a search warrant? (Police search during investigation - sec 165, 166,
153). When can any court issue a search warrant (Sec 83, 94, 97, 98)? 
What do you understand by Seizure (Sec 102)?
Discuss constitutional Aspects of validity or search and seizure proceedings.

Unit 4 – FIR
What do you understand by FIR (Sec 154)? What is its evidentiary value? (Refer Sec 145,
157 of Evidence Act). What are the duties of a police officer and the procedure for
investigation after receipt of such a report? When can a police officer proceed for an
Investigation Report?  Is a statement given by the accused in police custody admissible in
evidence? 

Unit 5 - Magisterial Powers

What do you understand by taking cognizance of an offence? Explain the procedure that is
adopted in taking cognizance or dismissal of complaint? What are the powers of a magistrate
regarding taking cognizance?
Explain the circumstances under which a magistrate is empowered to remove public nuisance
according to criminal procedure code. What provisions have been made for the police to take
preventive actions?

Unit 11 – Judgment
What are the essentials of a Judgment? What is the mode of its delivery (Sec 353, 362, 363)?
Can a criminal court alter or revise its own judgement after it is signed? 
What are the post conviction options in lieu of punishment - emerging penal policy (Sec 360,
361, 31)?
Compensation and Cost (Sec 357, 358).

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Unit 12 - Appeal, Review, and Revision
What do you mean by appeal, revision, and review? Does a criminal court have jurisdiction
to review its judgment without provision? Discuss the powers of the appellate court under
CrPC.
Explain the procedure of appeal against the judgment of session court in High Court. In what
cases, an appeal cannot be made?

State the powers of the Govt. regarding suspension, remission, and commutation of
sentences. 

General
What do you understand by Summary trial? How is it different from Ordinary trial? Can a
court convert a Summon case into a warrant case? Explain.

Explain the procedure that is adopted for the trial of a Summon case and a Warrant case.

Explain the procedure prescribed for trial of an offence before the court of sessions.

Explain the irregularities which vitiate proceedings.

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