Code of Criminal Procedure

CODE OF CRIMINAL PROCEDURE (Paper Code : BL-9001)
1. Introduction
The Code of Criminal Procedure 1973 is the procedural law providing the machinery for the
punishment of offenders under substantive criminal law. The code contains elaborate details about
the procedure to be followed in every investigation, inquiry and trial, for every offence under the IPC
or any other law. Earlier there was no uniform law of criminal procedure until the Code of Criminal
Procedure of 1882; it was replaced by the Code of 1898. The act was amended in 1923 and 1955
This code was repealed by the Code of 1973 enacted by Parliament on 25th January 1974 and made
effective from 1-04-1974 so as to consolidate and amend the law relating to Criminal Procedure. Its
object is to provide machinery for determining the guilt of and imposing punishment on offenders
under the substantive criminal law, for example, the Indian Penal Code (I.P.C.). The two Codes are
to be read together. The Code also provides machinery for the punishment of offences under other
Acts.
The Code of Criminal Procedure is complete code with respect to matters provided under it, thus the
code must be deemed to be exhaustive. The Supreme Court has said “It is the procedure that spells
much of the difference between the rule of law and the rule of whim and caprice”. (Iqbal v. State of
Maharashtra (1975) 3 SCC 140)
2. Important Definitions under the Code

2.1 .Offence
Section 2(n) of the CrPC defines the word “offence” to mean any act or omission made punishable
by any law for the time being in force and includes any act in respect of which a complaint may be
made under Section 20 of the Cattle-trespass Act, 1871. However, the term is more elaborately
defined under Section 40 of the IPC which states that “offence” denotes a thing made punishable by
the Code.
Section 39 of the CrPC imposes a duty on every person who is aware of the commission of or of
intention to commit an offence, to give information of certain offences which are specified in Clause
(i) to (xii) of sub-Section (1). An offence is what the legislature classes as punishable. Mens Rea a
bad intention or guilt is an essential ingredient in every offence
2.2 . Bailable Offence and Non-bailable Offence
A “bailable offence” means an offence which is shown as bailable in the First Schedule or which is
made bailable by any other law for the time being in force. “Non-bailable” offence means any other
offence. [Section 2(a)]
2.3 Cognizable Offence and Non-cognizable Offence

“Cognizable offence” means an offence for which, and “cognizable case” means a case in which, a
police officer may, in accordance with the First Schedule or under any other law for the time being in
force, arrest without warrant.
“Non-cognizable offence” means an offence for which, and “non-cognizable” case means a case in
which, a police officer has no authority to arrest without warrant. Thus, a non-cognizable offence
needs special authority to arrest by the police officer. [Section 2(c) and 2(l)]
In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or more
(not ordinarily all) of the offences are cognizable.
(Note: It may be observed from the First Schedule that non-cognizable offences are usually bailable
while cognizable offences are generally non-bailable
Cognizable Non-Cognizable
It is the offence in which a police officer can arrest It is the offence in which a police officer cannot arrest
the convict without the warrant. person without the warrant.
The police can start a preliminary investigation The police officer cannot start the investigation withou
without the permission of the court or without the permission of the court.
registering the FIR.
These are heinous crimes like murder, rape, dowry These crimes are not so serious like forgery, cheating
death etc. defamation etc.
The victim can file an FIR or make a complaint to the The victim can only make a complaint to the magistrate
magistrate.
It is defined in the Section 2(c) of the Criminal It is defined in Section 2(I) of Criminal Procedure Cod
Procedure Code, 1973. 1973.
The police officer is bound to register the FIR even The police officer is not bound to register the FIR o
without the permission of Magistrate. cannot register the FIR without prior permission of th
magistrate.
It is a non-bailable offence. It is a bailable offence.
2.4 Complaint
“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking
action under this Code that some person, whether known or unknown, has committed an offence, but
it does not include a police report. [Section 2(d)]
However, a report made by the police officer in a case which discloses after investigation, the
commission of a non-cognizable offence shall be deemed to be a complaint, and the police officer
making the report as a complainant. In general a complaint into an offence can be filed by any person
except in cases of offences relating to marriage, defamation and offences mentioned under Sections
195 and 197. A complaint in a criminal case is what a plaint is in a civil case. The requisites of a
complaint are:
 an oral or a written allegation;

 some person known or unknown has committed an offence;
 it must be made to a magistrate; and
 it must be made with the object that he should take action.
There is no particular format of a complaint. A petition addressed to the Magistrate containing an
allegation that an offence has been committed, and ending with a prayer that the culprit be suitably
dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705)
Police report is expressly excluded from the definition of complaint but the explanation to Section
2(d) makes it clear that such report shall be deemed to be a complaint where after investigation it
discloses commission of a non-cognizable offence. Police report means a report forwarded by a
police officer to a Magistrate under Subsection (2) of Section 173.
2.5 Bail
It means the release of the accused from the custody of the officers of law and entrusting him to the
private custody of persons who are sureties to produce the accused to answer the charge at the
stipulated time or date.
An “anticipatory bail” is granted by the High Court or a Court of Session, to a person who
apprehends arrest for having committed a non-bailable offence, but has not yet been arrested
(Section 438). An opportunity of hearing must be given to the opposite party before granting
anticipatory bail (State of Assam v. R.K. Krishna Kumar AIR 1998 SC 144).
2.6 Inquiry
It means every inquiry other than a trial, conducted under this Code by a Magistrate or
Court. [Section 2(g)]. It carries the following three features:
i. the inquiry is different from a trial in criminal matters;
ii. an inquiry is wider than trial;
iii. it stops when the trial begins.
2.7 Investigation
It includes all the proceedings under this Code for the collection of evidence conducted by a police
officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.
[Section 2(h)]
The three terms – ‘investigation’, ‘inquiry’ and ‘trial’ denote three different stages of a criminal case.
The first stage is reached when a police officer either on his own or under orders of a Magistrate
investigates into a case (Section 202). If he finds that no offence has been committed, he submits his
report to the Magistrate who drops the proceedings.
But if he is of a different opinion, he sends that case to a Magistrate and then begins the second stage
– a trial or an inquiry. The Magistrate may deal with the case himself and either convict the accused
or discharge or acquit him. In serious offences the trial is before the Session’s Court, which may
either discharge or convict or acquit the accused. (Chapter XVIII)
2.8 Judicial Proceeding

It includes any proceeding in the course of which evidence is or may be legally taken on oath. The
term judicial proceeding includes inquiry and trial but not investigation. [Section 2(i)]
2.9 Pleader
With reference to any proceedings in any Court, it means a person authorised by or under any law for
the time being in force, to practise in such Court and includes any other person appointed with the
permission of the Court to act in such proceeding. [Section 2(q)] It is an inclusive definition and a
non-legal person appointed with the permission of the Court will also be included.
2.10 Public Prosecutor

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

“Summons case” means a case relating to an offence and not being a warrant case. [Section 2(w)] A
“Warrant case” means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years. [Section 2(x)]
Those cases which are punishable with imprisonment for two years or less are summons cases, the
rest are all warrant cases. Thus, the division is based on punishment which can be awarded. The
procedure for the trial of summons cases is provided by Chapter XX and for warrant cases by
Chapter XIX of the Code of Criminal Procedure
3. Classification of Offences Under the Code of Criminal Procedure, 1973

3.1 Cognizable and non-cognizable Offences
The Criminal Procedure Code provides for two categories of offences – cognizable and non-
cognizable. Clauses (c) and (l) of Section 2 of the Code defines cognizable and non-cognizable
offences respectively as follows:
Section 2(c): “cognizable offence” means an offence for which, and “cognizable case” means a
case in which, a police officer may, in accordance with the First Schedule or under any other law
for the time being in force, arrest without warrant;
Section 2(l): “no- cognizable offence” means an offence for which, and “no- cognizable case”
means a case in which, a police officer has no authority to arrest without a warrant
As indicated by the above definition, cognizable offences are those where the police can suo
motu take action without the need for any authorized permission from the Magistrate. These
offences are serious in nature and the society cannot afford wasting time on legal formalities and
to allow the offender to conceal evidence or worse; abscond.
With respect to the meaning of cognizable offence under the Code, the Calcutta High Court
made certain observations in State of West Bengal v. Joginder Mallik. The court held that
where the alleged offence is not cognizable according to the First Schedule to the Code or if it
has not been made cognizable by the Act creating the offence, it will not be considered as
cognizable simply because the police was empowered to arrest the person for commission of
offence without a warrant.
On the contrary, in case of a non-cognizable offence, the police do not have the power or the
authority to arrest a person without a warrant nor can the police officer initiate the investigation
without a specific order of the Magistrate.
In all cases of non-cognizable offence, the person reporting the offence is referred to the
Magistrate and a complaint has to be filed before the Magistrate under Section 190 of the Cr.P.C.
Besides certain exceptions, “the non-cognizable offences are considered more in the nature of
private wrongs and therefore, the collection of evidence and the prosecution of the offender are
initially left to the initiatives and efforts of private citizens”. However, if a Judicial Magistrate
“considers it desirable that a non-cognizable case should be investigated by the police, he can
order the police to do so”
3.2 Bailable and Non-bailable Offences
The Code has further classified all offences under the IPC as bailable and non-bailable offences.
According to Section 2(a) of the Cr.P.C:
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.
The definition of bailable offence and the non-bailable offence does not say a lot about its meaning
or nature. The code has not provided any parameters to determine which offence should be bailable
and which should not be. However, it has been classified in the Frist Schedule to the Cr.P.C and it
has to be followed without any discretion or fail. If an act is made an offence in some other law and it
has not been classified as bailable or non-bailable, usually the graveness of the offence is looked into.
In general scenario, an offence which is punishable with an incarceration period of three years or less
is considered to be less heinous and hence, bailable while contrary to it, an offence where the
offender can be incarcerated for more than three years is usually non-bailable
However, the Supreme Court criticized this rule in Talab Haji Hussain v. Madhukar
Purshottam. The court observed that if the above rule had been true, it may not be easy to explain
why offences under Sections 477, 477A, 475 and 506 of the IPC should be made bailable while
offence under Section 379 should be non-bailable. It may be noted that offences under Sections 475,
477 and 477A are all punishable with an incarceration period which may extend to seven years but,
however, they are made bailable under the First Schedule[Talab Haji Hussain v. Madhukar
Purshottam. T].
In case of offences under laws other than the IPC, this broad rule is accepted because it is not
expedient to list all the offences under all the laws for the time being in force and keep changing the
First Schedule, whenever a new penal law comes. However, “this general rule can be suitably
modified according to the specific needs by making a special provision in law”
The basic difference and meaning of the two offences are that “if a person accused of a bailable
offence is arrested or detained without warrant, he has a right to be released on bail. But if the
offence is non-bailable, it does not remain a matter of right but only a privilege granted at the
discretion of the court”]. Bail is an amount of money furnished by the arrested person with or without
any person(s) as surety to ensure his appearance before the court when required.
3.3 The distinction between Cognizable and non-cognizable Offences

The Code has not provided any determinant to decide whether an offence is a cognizable or non-
cognizable offence. Therefore, the following points are important considerations that determine
the category of the offence.
1. Precisely, cognizable offences are those which under ordinary circumstances seem to be
more dangerous, grave and a serious threat to the society[. The seriousness of the offence is
determined by the punishment given for the offence. Usually, if “an offence is punishable
with imprisonment for a term of three years or more, it is considered to be serious”. In
heinous crimes such as murder, dacoity, dacoity with murder, sexual violence etc. prompt
police action for the arrest of the offender and investigation into the case is necessary for
successful prosecution and thus, therefore, these offences are treated as cognizable.
2. Offences which are in the nature of private wrongs, though serious in nature, are
considered to be non-cognizable. For instance, bigamy, adultery etc. are all punishable with
imprisonment for more than five years’ term but are made non-cognizable. The reasoning
is that making these offences cognizable might involve too much risk of police intervention
into the private family of the individuals.
3. Some offences under Chapter XI of IPC relating to giving of false evidence and offences
against justice are considered non-cognizable even when the punishment makes them
serious offences. This is to prevent police intervention during conduction of court
proceedings.
4. Constitution of Criminal Courts and it’s Hierarchy

4.1 Introduction
Administration of justice is the most important function of the state. For this purpose our
constitution has set up a hierarchy of courts. The Supreme Court is the apex body, followed by
24 High Courts which have been created by the constitution of India, and their jurisdiction and
powers are well defined in the constitution itself.
Article 124 of Indian constitution says that there shall be a Supreme Court of India its
constitutional powers and jurisdictions have been defined from article 124-147. The Supreme
Court is meant to be the highest court of appeal which takes up appeals against the verdict of
High Courts. There are 24 High Courts in the country which regulates the working of the
Sessions court. The Constitution, by Article 227, provides that every High Court shall so
exercise superintendence over all courts and tribunals. It further provides that the High Court
shall exercise its powers judiciously in order ensure proper working of judicial mechanism.
4.2 Classes of Criminal Courts
Apart from the Supreme Court and High Courts, the following criminal courts have been
described under section 6 of Criminal Procedure Code, 1973:-
1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area Metropolitan Magistrates
3. Judicial Magistrate of second class; and
4. Executive Magistrates
Section 7(1) of Criminal Procedure Code 1973 states that “The State Government shall
establish a Court of Session for every session’s division. The judge of the Sessions court is
appointed by the High Court. In the hierarchy Sessions court is followed by Judicial Magistrate
Class I and then judicial magistrate of Class II. In metropolitan areas, it is followed by Chief
Metropolitan Magistrate and metropolitan magistrate. An Executive Magistrate is one of the
classes of courts only while performing judicial functions.
4.3 Power of courts to try offences

Chapter III of CrPC deals with power of Courts. One of such power is to try offences. Offences
are divided into two categories:
1. those under the Indian Penal Code; and

2. those under any other law.
According to Section 26, any offence under the Indian Penal Code, 1860 may be tried by the
High Court or the Court of Session or any other Court by which such offence is shown in the
First Schedule to be triable, whereas any offence under any other law shall be tried by the Court
mentioned in that law and if not mentioned, it may be tried by the High Court or any other Court
by which such offence is shown in the First Schedule to be triable. This Section is a general
Section and is subject to the other provisions of the Code.
5. Power of the Court to pass sentences

Sentences which may be passed by the criminal have been mentioned under section 28 & 29 of
the criminal procedure code.
5.1 Sentences which High Courts and Sessions Judges may pass
According to Section 28, a High Court may pass any sentence authorised by law. A Sessions
Judge or Additional Sessions Judge may pass any sentence authorised by law, but any sentence
of death passed by any such judge shall be subject to confirmation by the High Court.
An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death
or of imprisonment for life or of imprisonment for a term exceeding ten years. Thus, Section 26
of the Code enumerates the types of Courts in which different offences can be tried and then
under Section 28, it spells out the limits of sentences which such Courts are authorised to pass.
5.2 Sentences which Magistrates may pass

Section 29 lays down the quantum of sentence which different categories of Magistrates are
empowered to impose. The powers of individual categories of Magistrates to pass the sentence
are as under:
 The Court of a Chief Judicial Magistrate may pass any sentence authorised by law except a
sentence of death or of imprisonment for life or of imprisonment for a term exceeding
seven years.
 A Magistrate of the first class may pass a sentence of imprisonment for a term not
exceeding three years or of a fine not exceeding five thousand rupees, or of both.
 A Magistrate of the second class may pass a sentence of imprisonment for a term not
exceeding one year, or of fine not exceeding one thousand rupees, or of both.
A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate of
the First class.
5.3 Sentence of imprisonment in default of fine

Where a fine is imposed on an accused and it is not paid, the law provides that he can be imprisoned
for a term in addition to a substantive imprisonment awarded to him, if any. Section 30 defines the
limits of Magistrate’s powers to award imprisonment in default of payment of fine.
It provides that the Court of a Magistrate may award such term of imprisonment in default of
payment of fine as is authorised by law provided the that the term:
 is not in excess of the powers of the Magistrate under Section 29; and
 where imprisonment has been awarded as part of the substantive sentence, it should not exceed 1/4th of the
term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise
than as imprisonment in default of payment of the fine.
5.4 Sentences in cases of conviction of several offences at one trial
Section 31 relates to the quantum of punishment which the Court is authorised to impose where
the accused is convicted of two or more offences at one trial.
(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the
provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences,
to the several punishments prescribed therefor which such Court is competent to inflict; such
punishments when consisting of imprisonment to commence the one after the expiration of the
other in such order as the Court may direct, unless the Court directs that such punishments shall
run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of
the aggregate punishment for the several offences being in excess of the punishment which it is
competent to inflict on conviction of a single offence, to send the offender for trial before a
higher Court: Provided that-
 in no case shall such person be sentenced to imprisonment for a longer period than fourteen
years;
 the aggregate punishment shall not exceed twice the amount of punishment which the
Court is competent to inflict on a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences
passed against him under this section shall be deemed to be a single sentence.
6. Jurisdiction of the Criminal Courts in Inquiries

and Trials
6.1 Meaning of Inquiry and Trial
Inquiry
According to Section 2(g) of the Code of Criminal procedure(hereinafter referred to as CrPc),
“inquiry” is defined as “every inquiry, which does not come under the definition of trial, which is
looked into by either the court of a Magistrate, or by any other Court so authorized under the Code
Of Criminal Procedure. This means and includes all those proceedings before framing of charges”.
It can be conducted either by a Magistrate or before a Court. These proceedings do not result in
conviction or acquittal. It can only result in discharge or commitment of trial. It refers to everything
done before the trial begins. Trial begins where inquiry ends. The object of inquiry is to identify
whether the allegations are sustainable or no
Types of Inquiry
1. Judicial Inquiry
2. Non – Judicial Inquiry
3. Preliminary Inquiry
4. Local Inquiry
5. Inquiry into an offence
6. Inquiry into matters other than an offence
Trial
The trial commences when the inquiry stage comes to an end. It is the most important and the third
part of a judicial proceeding. It is the process by which the guilt or innocence of an allegation on a
person is ascertained.
According to Section 190 of the CrPC, some points need to be kept in mind before the initiation of
the proceedings. The trial is a part of the proceedings in which the examination of witnesses is done.
Moreover, the cause is also determined by the judicial tribunal, and it is concluded by either the
conviction or the acquittal of the accused person.
Types of Trials
The trials have been divided into four categories which have different approaches and procedures.
1. Session trial
2. Warrant trial
3. Summons trial
4. Summary trial
6.2 Jurisdiction of the Criminal Courts
6.2.1 Original Place of Inquiry and Trial
Section 177 – According to this section, the Court under whose jurisdiction the offence has been
committed only has the authority to inquire into and try such case.
Section 178 deals with the situations where the offence has been committed in more than one
place
 When the place of commission of the offence is uncertain because it has been committed
in several places.
 Where an offence is partly committed in one local area and the rest in another area.
 When the offence comprises of several acts, committed in different local areas.
If any of the above conditions are fulfilled, then such offence may be inquired into or tried by
a Court having jurisdiction over any of such local area.
Section 179, emphasises that fact that when an act is an offence because of anything which has
been done and as a consequence which has ensued, the said offence may be inquired into or tried
by a court of competent jurisdiction
Section 180 deals with the place of trial when the act committed is an offence because it is
related to some other offence. According to it the offence which has been committed first has to
be inquired into or tried, when two acts are done in connection with each other and both are
offences, by the court under whose jurisdiction either of the act has been committed. In all such
provisions, the emphasis is always on the place where the offence has been committed, to find
the jurisdiction.
6.2.2 The jurisdiction in Specific Offenses
section 181 specifies conditions in case of certain offences. According to section 181(1), the trial
can also be commenced where the accused is found, besides the place where the offence was
committed. Section 181(1) talks about the offences, when not committed in a single place. It
deals with the following cases.
 Thug, or murder committed while performing the act of thug, dacoity, or dacoity with
murder etc- where the offence is committed or where the accused is found.
 Kidnapping or abduction of a person- the place from where the person was kidnapped/
abducted or where the person was concealed or conveyed or detained.
 Theft, extortion or robbery – the Court where the offence has been committed or
where the stolen property is possessed, received or delivered, has the jurisdiction to
try such a case.
 Criminal misappropriation or criminal breach of trust- where the offence has been
committed or where any part of the property which is the subject matter of the offence
has been received or retained, required to be returned or accounted for, by the
accused.
But the above section deals with offences when the offender is travelling, as evident from the
nature of the offences as specified under this section.
6.2.3 Jurisdiction when Offense Committed by Letters/Post
Section 182 deals with offences committed by letters etc. Under this section, if any offence
includes cheating, if the victim has been deceived by means of letters or telecommunication
messages, it shall be looked into by the Court under whose local jurisdiction such letters or
messages have been sent or received; and under the local jurisdiction of the Court in which the
property has been delivered by the person deceived or has been received by the accused person.
6.2.4 Jurisdiction when Offense Committed during a Voyage
Section 183 deals with offences which have been committed during journey or voyage. When a
person commits an offence, during journey or against a person who is travelling, or the thing in
respect of which, the offence has been committed is in due course of its journey or voyage, the
offence has to be inquired into or tired by a Court through or into whose local jurisdiction that
person or thing has passed, during the journey.
6.2.5 Jurisdiction for Offenses Jointly Triable
The place of trial for offences which are triable together consists of two circumstances.
When any person commits offences, such that he may be charged with, tried at one trial for, each
such offence according to the provisions of section 219, section 220 or section 221.
When the offences or offences have been committed by several persons, in a manner that the
Court may charge and try them together, according to the provisions of section 223.
In either of the circumstances, the Court which is competent to inquire and try such do the sam
6.2.6 The jurisdiction in Other Cases
Section 185 deals with the power of the State Government, according to which the government
can direct that any cases or class of cases which have been committed for trial in any district,
may be tried in a sessions court. It has to ensure that such direction is not inconsistent with any
of the directions which have been already issued by any other Superior Court, as per the
Constitution, or as mentioned under the Code of Criminal Procedure or under any other law for
the time being in force.
Section 186 addresses the situation wherein the cognizance of a particular offence has been taken
by two or more courts and confusion arises as to which of the Courts shall inquire into or try that
offence, in such a case, only the High Courts have the authority to resolve the confusion. The
criteria for resolving such issues are as follows.
 If the same High Court supervises the courts involved, then by that High Court
 If the same High Court does not supervise the courts involved then, by the High Court
which first commenced the proceedings as an appellate criminal court. Thereafter, all
the other proceedings in respect of that offence shall be discontinued.
Section 187 states the power of a Magistrate to issue summons or warrant for offences which
have been committed beyond his local jurisdiction. In such a situation the Magistrate has the
authority to order such a person to be produced before him and then send him to the Magistrate
of competent jurisdiction.
6.2.7 Jurisdiction when Offense Committed Outside India
The conditions related to the offences when committed outside the territory of India have been
dealt with under section 188. According to this section, when an offence is committed outside
India-
 by a citizen of India, whether on the high seas or elsewhere

 by a person, not being such citizen, on any ship or aircraft registered in India.
Such a person may be treated in respect of such offence as if it had been committed at any place
within India and at such a place, where he may be found.
The proviso to this section specifies that no such offence shall be inquired into or tried in India
without the previous sanction from the Central Government. The most important factor in the
above-mentioned provision is the place where the offence has been committed.
Section 188 specifically deals with the case when the offence is committed outside India. These
offences have to be deemed to have been committed in India, if committed by an Indian citizen,
in high seas or in any other place. Also, when the offence is committed by a person who although
is not an Indian citizen but is travelling in any Indian aircraft or ship.
When the provisions of Section 188 are applicable, then the Central Government may, if it
deems fit, direct that the copies of depositions or exhibits given to a judicial officer or before a
diplomatic or consular representative of India in or for that territory shall be received as evidence
by the Court holding such inquiry or trial in any case in which such Court might issue a
commission for taking evidence as to the matters to which such depositions or exhibits relate.
Section 188 and Section 189 should be read together. They proceed on the basis that a fugitive
is in India and can be found anywhere in India. The Court has to find the accused and the finding
of the accused has to be done where the accused appears. It is clear from the above section that
the accused cannot be found by a mere complaint or by the Police.
Further, it is next to impossible for the victim of an offence committed outside India, to visit
India and try to ascertain the location of the accused and then approach the court. The balance of
convenience is higher on the side of such a victim. Therefore, all such points have been
considered while drafting Section 188 and Section 189 of the Code of Criminal Procedure. The
said victim has been vested with the right to approach any Court in India according to his
convenience and file a case in respect of the offence committed upon him by an Indian abroad.
In the case of Reg vs. Benito Lopez(1), the issue related to the jurisdiction of English Courts for
the offences committed on the high seas by foreigners who are travelling in England borne ships
was questioned. It was held that the country which tried the accused did not go beyond its
jurisdiction. The decision highlighted the important principle of International Law that a person
is liable to be punished of all such offences, which he has committed irrespective of the place
where it is committed.
6.3 Conclusion
Whenever an offence is committed, the first question which arises is that in whose jurisdiction
the offence would fall. The jurisdictional issue is the most important issue which needs to be
resolved so that the proceedings can begin without any hindrance. Sections 177-189 deals with
the concept of jurisdiction. Under normal circumstances, the case shall be inquired and tried by a
court under whose jurisdiction the offence has been committed.
However, there are certain cases where more than one Court have the power to inquire and try the
cases. Such issues have been explicitly dealt with by the provisions of the Code of Criminal
Procedure. The Code also mentions the circumstances when the offence is committed by an Indian
citizen in a foreign country or by a foreign travelling in an aircraft or ship registered in India. The
courts need to consider all the factors governing the jurisdiction and begin with the proceedings after
referring to the Code of Criminal Procedure.
7. Arrest Under The Code Of Criminal Procedure, 1973
7.1 Introduction
This article discusses the Concept of Arrest Under The Code Of Criminal Procedure, 1973. Arrest
means “the deprivation of a person of his liberty by a legal authority or at least by apparent legal
authority”. For instance, when a police officer apprehends a pick-pocket, he is arresting the pick-
pocket, but when a robber apprehends a person with a view to extracting ransom, he is not arresting
the person but, illegally confining him.
Moreover, it has to be noted that “every compulsion or physical restraint is not arrested but when the
restraint is total and deprivation of liberty is complete, it amounts to arrest”.
In India, the Criminal Law reckons that every accused is entitled to a fair trial which shall be
conducted in the presence of the accused Further, under Section 235 of the Code, if the accused is
found guilty of the offence charged with, the court should hear the accused on sentence and then
determine it. Thus, ensuring the presence of the accused during trial and judgment is the primary
reason for the arrest.
7.2 Definition and meaning
Generally, a person who breaks the law is arrested. So, what is arrest? In general term, ‘arrest’ would
mean that when a person is arrested they lose some of their freedom and liberty. They are put under
restraint.
The Criminal Procedure Code of 1973, however, that deals with the aspects of arrests, has not
defined the ‘Arrest’. When a person is arrested, then the arrested person is taken into custody of an
authority empowered by the law for detaining the person. The person is then asked to answer the
charges against him and he is detained so that no further crime is committed.
At times, there is restraint by the legal authority but sometimes the person on his own submits to the
custody of the person making the arrest.
As per Legal Dictionary by Farlex, “Arrest” means “a seizure or forcible restraint; an exercise of the
power to deprive a person of his or her liberty; the taking or keeping of a person in custody by legal
authority, especially, in response to a criminal charge.”
In Indian law, Criminal Procedural Code 1973 (hereinafter referred to as CrPC), chapter V (Section
41 to 60) talks about Arrest of a person but it does not define arrest anywhere.
7.3 Types of Arrest: Two types of arrest
1. An arrest made in view of a warrant issued by a magistrate

2. An arrest made without such a warrant but in accordance with some legal provision
permitting such an arrest
7.4 Who can arrest?

The arrest can be made by police, magistrate and even a private person
Section 41(1) CrPC Says: Any police officer- may without an order from a magistrate and without a
warrant arrest any person who has committed a cognizable offence, who is in possession of stolen
property, or is a state offender, who obstructs a police officer in discharge of his duty, who attempts
to escape from lawful custody, who is declared as a deserted from any of the Armed Forces of the
Union, who is a released convict and breaches his contract of release etc.
Section 42 authorizes a police officer to arrest a person for an offence which is non-cognizable if the
person to be arrested refuses to give his name and residence.
Section 43 gives the right to a private person like you and me to carry out an arrest of a person who
in his presence commits a cognizable or a non-bailable offence or who is a proclaimed
offender. Section 44 arrest by magistrate as per section 44(1) of CrPC, the Magistrate has been given
the power to arrest an individual who has committed an offence in his presence and also commit him
to custody.
However, CrPC exempts the members of Armed forces from being arrested for anything done by
them in discharge of their official duties except after obtaining the consent of the government
(section 45 CrPC).
Section 46 of CrPC explains how arrest is made with or without warrant.
Section 46(4) special protection as females, that forbids 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 obtaining a prior permission from the concerned judicial
magistrate of first class within whose local jurisdiction the offence is committed or the arrest is to be
made.
7.5 Constitutionality of Section 107 and 151 of CrPC

For the purpose of arresting without a warrant, a police officer may pursue such an individual into
any place in India as stated under Section 48. Section 49 of the Code says that the arrested person
shall not be subject to any unnecessary restraint or physical inconvenience unless it is required to do
so to prevent his escape.
Section 151 gives power to the police officials to arrest a person, without a warrant, on the suspicion
that he may commit a cognizable offence. However, this comes with certain conditions: the
anticipated offence should be cognizable and the officer should feel that the offence would be
prevented only by an arrest of the suspect. Section 107 gives similar powers to the magistrate.
However, Numerous petitions have been filed questioning the constitutional validity of these sections
as it gives plenty of room for the misuse of powers under these sections.
7.6 Important cases

In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as “the act of being taken into
custody to be formally charged with a crime” . The court observed that in a Constitutional sense, it
means the seizure of a person (body of a person).
In State of Punjab v. Ajaib Singh, the court observed that arrest is the “physical restraint put upon
an abducted person in the process of recovering and taking that person into legal custody with or
without any allegation or accusation of any actual or suspected commission of the offence” .
The elements necessary to constitute arrest were summarised by the Madras High Court in Roshan
Beevi v. Joint Secy. To the Govt. of Tamil Nadu. The vital elements required to institute arrest are:
1. “There must be an intent to arrest under legal authority,
2. There must be seizure or detention of the person,
3. The person must be in the lawful custody of the arresting person and
4. The act of arrest must include the actual confining of the person and not mere oral declaration of
arrest”
Birendra Kumar Rai vs Union of India 1992
It was held that to make an arrest the police officer need not be handcuff the person, and it can be
completed by spoken words also if the person submits to custody himself.
It was held in the case of Bharosa Ramdayal vs Emperor, 1941, that if a person makes a statement
to the police admitting himself of committing an offence, he would be considered to submitting to the
custody of the police officer. Also, if the accused goes to the police station as directed by the police
officer, he has again considered to have submitted to the custody. In such cases, physical contact is
not required.
In Kultej Singh vs Circle Inspector of Police, 1992, it was held by the court that keeping a person
in custody in the police station or confining the movement of the person in the precincts of the police
station amounts to arrest of the person.
8. Rights of an arrested person in India

8.1 Introduction
The accused in India are afforded certain rights, the most basic of which are found in the Indian
Constitution. Article 21 of Indian Constitution provides few rays of hope to the lives of arrested,
under trials and convicts. The treatment of such people has to be humane and in the manner
prescribed by law. Hence, the accused has been provided with certain rights under the law.
The rights are as follows and have been discussed in the chapters that follow, of this project in detail.
They are as follows and there is a brief mention of the legal provisions for them.
8.2 Grounds of Arrest: Right to be informed
This right has been given the status of a Fundamental right in the Indian Constitution. Article 22(2)
of the Indian Constitution says that “no person who is arrested shall be detained in custody without
being informed as soon as may be, of the grounds of such arrest nor shall he be denied the right to
consult, and to be defended by a legal practitioner of his choice.”
This right is very important for the person arrested as he may be innocent. If he gets to know of the
grounds of arrest then it enables him to apply for bail or in appropriate circumstances for a writ of
habeas corpus, or to make fast and suitable s arrangement for his defence. Also, it gives the arrestee
the right that any one person close to him is informed about his arrest immediately.
Madhu Limaye Case is an example here.
The legal provisions for the same can be found in:
Section 50(1). 55,75 of CrPC and Art 22(2) of the Constitution of India
8.3 Right to Silence
Just because the accused /arrested person chose to be silent under interrogation doesn’t mean that he
is guilty. There is much speculation if this right is to be exercised in modern times as mentioned in
Justice Malimath Committee’s report.
Nandini Sathpathy vs P.L.Dani: In this case it was mentioned that no one can forcibly extract
statements from the accused, who has tevery right to keep silent if he so chooses.
Art 20(2) of the Constitution of India
8.4 Right to be released on Bail
Article 21 of the Indian Constitution says that every individual shall have a right to liberty as per
procedures established by law. However, an accused cannot be given all these liberties till he is
proven innocent. But he needs to be informed that he has a right to apply for bail in bailabe offences
and even in non-bailable offences, bail is granted by the Court after taking into factors such as nature
or seriousness of the offence, the character of the evidence etc.
Case Law: Uday Mohanlal Acharya v. State of Maharashtra

Sections 50(2), 436, 437, 438 of CrPC
Sections 42, 43, 56, 59, 169, 170, 436, 437 and Schedule I Column 5 of CrPC also confer the right to
grant bail to the accused but by the police under certain rules.
8.5 Right to be taken before Magistrate without delay
Whether the arrest was made with or without warrant. The person making such an arrest is duty
bound to present the accused before the magistrate within 24 hours excluding the time taken for
traveling from the place of arrest to the Magistrates’ court.
Case Law: State of Punjab v Ajaib Singh
Sections 56,71,76 of CrPC
8.6 Rights regarding detention
If the arrested person is not produced before a magistrate within 24 hours of the arrest, by the police
officer then he shall be held guilty of wrongful detention.
This right has been created with a view-

i. that the arrestee is not compelled to give confessions, or as a means of compelling people to give
information;
ii. So, the police stations don’t act like prisons for which they are unsuitable.
Case Law: Gunupati Keshavram v. Nafisul Hasan

Section 57 of CrPC, Art 22(2) of the Constitution of India
8.7 Rights at trial
Keeping with the international system of law, our constitution upholds the fair trial system and the
same is also seen in our procedural law. Fair trial is necessary to protect the accused individual’s
basic rights from unlawful and arbitrary deprivation and it is also based on the principle of natural
justice.
Case Laws:
 Rattiaram v. Territory of Madhya Pradesh AIR 2012 SC 1485.
 Zahira Habibullah Sheik and Ors. v. Province of Gujarat and Ors (2006) 3 SCC 374
Article 14 and 21 of Constitution of India
8.8 Right to consult a legal practitioner
The Supreme court upheld the right of consulting a legal practitioner by an accused as a
Constitutional right under Articles 21 and 22(1) of the Constitution of India.
Case Law: Janardhan Reddy v State of Hyderabad is an example.
Sections 41(D), 50(3), 303 of CrPC and Article 22(1) of Constitution of India
8.9 Rights to free legal aid
In India, this facility is provided to all poor accused inspite of the severity of the crime they have
committed. This is for the 3-tier justice system in totality at every stage. This service is provided both
for the trial and appeal as neither the Indian Constitution nor does the Legal Services Authorities Act
makes any distinction between them.
Case Laws:
 Hussainara Khatoon vs State of Bihar
 M.H.Hoskote v State of Mahashtra
Section 304 CrPC, Articles 21, 39(A) of Constitution of India
8.10 Right to be examined by a medical Practitioner
This is an absolute necessity to put on record any mark or injuries or ascertain the health of the
accused when taken into custody and put it on record. Subsequently this also works as check to
ensure if there was any torture by the powers that be during interrogation or during custody.
Case Law: Anil Lohande v State of Maharashtra
Section 53 and 54 of CrPC

8.11 Right of the accused to produce evidence
Very important right to the proceedings of a fair trial.
Case Law: Joginder Kumar v State of U.P
Section 243(1), 273 of CrPC
8.12 Conclusion
The Code of Criminal Procedure, 1973 provides certain safeguards but till date the power of arrest
given to the police is being misused. It is believed till today that the police use authority in order to
threaten arrested people and extort money from them. There have been reports that the police fail to
inform the arrested people against the charges against them and do not provide them with adequate
means of representation they should get. Thus it is very important to bring changes in Criminal
Justice Administration so that the State knows that its primary duty is to seize and reform the
wrongdoer and not just punish him. All of the proceedings go according to the Rule of Law which
regulates functions of all organs of the State’s Machinery. It also includes people and agencies
conducting prosecution and investigation cases.
It is the first and foremost duty of the police to protect all individuals and their rights in society
which also includes the arrested people. Thus, it is the duty of the police to also protect the rights of
the accused and make sure that they are treated fairly according to the proceedings established by law
and not harassed unnecessarily. The police should make sure that the person arrested is informed
about his rights like grounds of arrest, if he / she is entitled to bail and produced before a magistrate
within twenty four hours
9. Bail
9.1 Introduction
Black’s Dictionary defines bail as “Procuring the release of a person from legal custody, by
undertaking that he/she shall appear at the time and place designated and submit him/herself to the
jurisdiction and judgment of the court”.
Bail is the conditional release of a person accused of a crime, for an amount, pledged for the
appearance of the accused when the same is due in court. The person paying the money acts as the
surety. Getting bail is one of the rights of the accused in a civil case while it is the discretion of the
bail granting authority in a criminal case.
9.2 Historical development

Bail can be traced back as early as 399 BC when Plato first tried to create a bond to free Socrates. In
medieval times, the circuit courts in Britain created a system of bail. The concept of modern bail
chiefly originated from all the medieval laws governing it.
Kautilya’s Arthashastra also mentioned that avoiding pre-trial detention was ideal therefore the
concept of bail was somehow prevalent in ancient India too. During the 17th century that was the
Mughal period, bail was practised in the form of ‘Muchalaka’ and ‘Zamanat’.
Currently, bail is governed by the Code of Criminal Procedure, 1973 (hereafter referred to as the

‘Act’). Bail is not explicitly defined in the Act but the terms bailable offence and non-bailable
offences are defined under Section 2(a). Section 436–450 governs the provisions relating to bail
under the Act.
9.3 Types of bail in India
There are three types of bail in India-
 Regular bail
When a person commits a cognizable non-bailable offence (offences which are so grave that a police
officer can arrest the accused without a warrant or start the investigation without the permission of a
court), the police can take him under custody and after the custody period expires he must be sent to
jail. Section 437 and 439 of the Cr.P.C gives the accused the right to be released from such custody.
So, a regular bail is basically the release of an accused from custody to ensure his presence at the
trial.
 Interim bail
This bail is granted as a temporary means and granted for a short period of time, either during the
time of pendency of an application or when the application of anticipatory or regular bail is pending
before the court. Interim bail is always conditional and can be extended, but if it expires before the
accused has been granted an anticipatory bail or regular bail and he fails to pay the amount required
for continuing the bail, then he loses his right of freedom and will be taken under custody.
 Anticipatory bail
Anticipatory bail is self-defining. It is a type of bail which is given to someone who is in anticipation
of getting arrested for a non-bailable offence by the police. This is a very essential bail in recent
times because business rivals and other influential people often try to frame their opponents in false
cases. This is an advanced bail mentioned under Section 438 of the Act. A person who has been
granted an anticipatory bail cannot be arrested by the police.
9.4 Conditions under which bail can be granted in India
CHAPTER XXXIII (S.436-450) of the Code of Criminal procedure deals with bails
and bonds. There are certain conditions under which bail can be granted and we
shall discuss the as follows:
Conditions governing bail in a bailable offence
Section 436(1) of Cr.P.C. lays down the conditions under which bail can be
granted for bailable offences committed under the Indian Penal Code (1862).
Whenever a person is arrested or detained by police for any non-bailable
offence is produced before the court and he is prepared to give bail, he may be
released on bail.
In this case, bail can either be granted by the police officer who has made the
arrest or by the Court before which the person has been produced. Here bail will
ordinarily be granted against furnishing of surety by the arrested person.
However, if the arresting officer or the court is satisfied that the person is
indignant and cannot furnish surety, he may be discharged on bail on the
execution of a bond without sureties for his appearance.
Whether a person is indignant or not is also explained under this section. If

within a period of one week of arrest, the person fails to give bail, he will be
considered as an indignant person and will be eligible to be discharged on the
execution of a bond without sureties.
At the time of granting bail to any person, the bail granting authority must be
satisfied that:
1. the accused appears to be innocent, i.e. he has most probably not

committed the offence.
2. that further enquiry for the offence is required to be conducted to find
out whether he has committed the offence.
3. the offence is not a major one, i.e. it is not an offence punishable with
death, life imprisonment or imprisonment up to 10 years.
Sub-section (2) of this section lays down the conditions under which bail may
be refused even if the offence is of bailable nature. If a person fails to comply
with the conditions of appearance as laid down in the bail-bond, he may, in any
subsequent occasion in the same case, if arrested or brought before the court,
be refused bail.
In India, court cases are long-drawn and may continue for years. For various
reasons, the trying court may take a long time to give its verdict. Section 436A
was inserted in CrPC to ensure that an accused person is not detained for an
inordinate length of time. Any person, if accused of any offence, other than an
offence where the prescribed punishment is death, will be released in bail-bond,
during the period of investigation, if he has already been detained for more than
half the length of maximum punishment prescribed for that offence. However,
the section also gives the court the discretion to extend the period of
imprisonment beyond this period, if so satisfied, but in no circumstances, up to
the maximum length of punishment prescribed for the offence
Conditions governing bail in a non-bailable offence

Right to liberty as enshrined in the Constitution– these two principles are
required to be analyzed in conjugation, in deciding whether an accused can be
granted bail in respect of a non-bailable offence. The Court has to strike a
balance between the two. The Hon’ble Supreme Court in the matter of Shahzad
Hasan Khan v. Ishtiaq Hasan Khan (1987) has observed that “Liberty is to be
secured through a process of law, which is administered keeping in mind the
interests of the accused, the near and dear of the victim who lost his life and
who feel helpless and believe that there is no justice in the world as also the
collective interest of the community so that parties do not lose faith in the
institution and indulge in private retribution.”
Section 437 of the Code of Criminal Procedure,1973 states that bail can also be
granted for committing non-bailable offences. However, here the discretion is
that of the Court and the accused cannot claim it as a matter of right. Under
this section, if a person is arrested without a warrant and produced before a
court, any court other than the High Court or the Court of Sessions may grant
him bail. However, the Court may not grant bail if it has sufficient grounds to
believe that the person is guilty of an offence punishable with death or life
imprisonment. The Court may also refuse bail if the offence is cognizable and
the person has been previously convicted of an offence punishable with death or
imprisonment for seven years or more or convicted in two or more than two
occasions against an offence punishable with imprisonment for three or more
years.
Further, the Court may also grant bail if the accused is a woman or a child,
evidence of the crime is not strong enough and further enquiry is warranted,
FIR has not been lodged promptly and the accused is seriously indisposed or
infirm.
The mere reason that the examination of the accused needs the witness, will
not be sufficient cause for refusing bail. At the same time for offences
punishable with death or imprisonment for seven years or more, the Public
Prosecutor will be given an opportunity of hearing and opposing bail, before the
same is granted.
If the accused is suspected to have committed, abated, conspired or attempted

to commit a crime punishable with imprisonment with seven or more years, he
shall be released on bail on the imposition of the following conditions:
1. attendance as laid down in the bail bond;

2. The undertaking of not committing any similar offence; and
3. The undertaking of not making any direct or indirect inducement,
threat or promise to any person acquainted with the facts of the case.
Conditions governing bail in anticipation of arrest:
Section 438 of the CrPC lays down the procedures for getting bail in anticipation
of arrest for a non-bailable offence. The provision was incorporated as per the
recommendation of the report of the 41st Law Commission. There should be an
element of apprehension, i.e. the person seeking bail feels that he will be
framed or arrested in a false case or someone having enmity with him will try to
get him arrested on the pretext on a fabricated charge. The applicant has to
present before the Court certain special facts or circumstances which makes him
believe would result in his arrest. This is however left to the satisfaction of the
court, whether such facts would be considered good enough for granting bail.
Anticipatory bail can be granted only a High Court or a Court of Sessions.
Other conditions affecting grant of anticipatory bail

 The person concerned will have to make himself available for
interrogation by the police.
 He shall not make any direct or indirect inducement, threat or promise
to any person acquainted with the facts of the case.
 He will not leave the country without the prior permission of the court.
9.5 Bail reforms in India – a critical analysis
 Detention of undertrials should be an exception and not a rule in law.

The Indian Legal system relies on the presumption of innocence unless
otherwise proven guilty. In practice, this is not really true. The nature
of the offence often weighs heavily on the mind of the judge or
magistrate who grants or refuses bail. If the offence is grave enough,
bail is often not granted and the cardinal principle that the offence is
yet to be proved is often ignored. Thus, the importance of FIR is
paramount in the Indian Legal system. I, therefore, feel that this
excessive reliance on the gravity of the offence as stated in the FIR has
to be carefully examined. Grant of bail should not depend on the
sections in which a person is charged, i.e. on the nature and gravity of
the offence (which is yet to be proved), but it should be evidence-
based and the careful understanding of the judge as to the probability
of the accused committing the offence. If required thorough, but quick
enquiry may be conducted to find out whether bail may be granted or
not. Another important area, already recommended by the Law
Commission is revamping the system of the arrest. The system should
be made more rational, fair and transparent. For this, Section 41 of
Cr.P.C. should be amended. This would go a long way in preventing
arbitrary arrests and result in fewer people seeking bail before the
police and the court. Most importantly, it would help the bail granting
authority take a rational decision based on the merit of the case.
 There are various statutes and sections in-laws which lay emphasis on
the presumption of guilt which is contrary to principles of natural
justice. For example, It is very hard to get bail for offences under
the Narcotic Drugs and Psychotropic Substances Act, 1985, The
Scheduled Caste and Scheduled Tribes (Prevention of atrocities Act),
1989, as these laws lay emphasis on the presumption of guilt.
Similarly, Section 375 (Rape) and Section 498A (Cruelty against a
married woman) of IPC also lay presumption on guilt. These sections
were drafted to prevent people from committing atrocities against
women and the traditionally oppressed classes, which is no doubt
necessary to prevent crimes against them, but at the same time, the
sections bypass the principle of innocence prior to being proved guilty.
Thus, all statutes and laws should emphasize the principle of
‘innocence unless proved guilty and should be amended to the extent
required.
One classic example in this regard is the judgement delivered by a Supreme

Court Bench in the case State of Kerala v. Rajesh (2020). Here the decision of
Kerala High Court, granting bail to the accused under the Narcotics, Drugs &
Psychotropic Substances Act, 1985 was turned down, upholding the appeal of
the State Government, as the apex court thought that Section 37 of the Act,
which puts the onus of proving innocence on the accused, was overlooked by
the High Court. In the larger context, we have to admit that this section goes
against the principles of liberty and natural justice of our constitution and the
Supreme Court too, preferred not to examine it.
 The bail system relies on sureties and bonds which often act as a
deterrent for the poor. Repeated bail petitions get rejected as the poor
do not have the monetary means. Thus, there is a common notion that
bail is not for the poor. Therefore granting of bail should not be only on
monetary considerations. Other means should be devised.
 Section 436A of the Cr.P.C. perhaps needs further reforms. In the
Indian system of jurisprudence, under-trial prisoners suffer a lot. The
prosecution, which is burdened with cases, often make inordinate delay
in completing enquiry and filing charge sheets. This can result in the
accused languishing in custody for years. This can continue up to half
the period of maximum punishment prescribed for the offence and
even up to the maximum length of punishment prescribed for the
offence. This goes against the principle of life and liberty guaranteed
by the Constitution and even worse, valuable years of his life get
wasted if the accused is found not to be guilty of the offence at the end
of the trial. This is a gross crime against humanity which can never be
rectified.
 Finally, we come to the most important issue of speedy justice. If
justice is fast and verdict comes quickly, then many poor under-trial
prisoners, who often do not get bail for economic reasons or reasons of
caste, creed or backwardness, are spared from languishing behind the
bars. Thus, reforms in the Indian Judiciary should primarily focus on
this issue and it will naturally address the problems of bail in India,
along with many other problems.
9.6 Conclusion
Bail is an important check and balance to ensure that no innocent person is
punished until proven guilty. But the complicated system of bail in the country’s
criminal law system often fails to appreciate it. Grant or refusal of bail depends
on factors that are remotely connected with the merit of the case. The
recommendations of the Law Commission in its 268th report on bail reforms are
important and they should be implemented so that a fair and transparent
system of bail evolves in our criminal law system. This would go a long way in
upholding the rights of life and liberty enshrined in the Indian Constitution.
10. Information to the police and their powers to investigate.

10.1 Introduction:
Refer slides
The chapter XII of the Criminal Procedure Code, 1973 includes in it the power of the police to investigate
and all the necessary information regarding the same. These powers may either be cognizable and non-
cognizable issues also issues pertaining to crimes such as suicide, murdered by animals or accidents etc.
The powers of the police officer to investigate a cognizable offence as given u/s. 156 Criminal Procedure
Code are wide and unfettered (in strict compliance of the provisions of Chapter XII of the Code).
Even the Courts are not justified in obliterating the track of investigation in such cases. In other words,
they have no control over the investigation, or over the action of the police in holding such investigation.
But in case a police officer transgresses the circumscribed limits and improperly and illegally exercises
his powers in relation to the process of investigation, then the Court has the necessary powers to
consider the nature and extent of the breach and pass appropriate orders. The interference by the
courts in the investigation of offences is thus permissible only if non-interference would result in
miscarriage of justice. Investigation is not mandatory as the police may investigate at their own
discretion
The power conferred upon the police are to be given of utmost importance and thereby cannot be
encroached upon by any means. As in the case of S.N.Basak, the court was of the opinion that the police
has been provided with statutory right to carry forward to the process of investigation as stated under
this chapter of the Criminal Procedure Code prior to the initiation of the prosecution and it was also
stated by the court that this rights given to the police cannot be interfered even by the courts through
section 401 High court's power of revision and not even by section 482 which is Saving of the inherent
power of the High Court as stated under the Criminal Procedure Code [i].
It is provided under section 154 of the Criminal Procedure Code that all the information pertaining to
any form of cognizable offence should be written down by the police officer in charge or under his
discretion. The information that has been written down as called the First Information [ii].
There has not been made any mention of the First Information Report under the Criminal Procedure
Code, however, the words used indicates information is to be regarded as the First Information Reports,
the same was stated by the court in the case of Manimohan Ghosh [iii] As per section 2(h) of the
Criminal Procedure Code the investigation in inclusive of all the proceedings under the code of collection
of evidence carried out by the Police Officer or any other person which is authorized by a Magistrate.[iv]
In order for the investigation to take place the crime has to take place. The crime committed can either
be a cognizable crime or Bailable or Non- cognizable offence or Non-bailable in its nature.
In cases of investigation of Cognizable offences the section 156 of the Criminal Procedure Code has
conferred power upon the police officers to carry forward the investigation process without the order or
permission of the magistrate. It is therefore ordered that the police must conduct investigation only
where the particular court has jurisdiction within the local areas.
In cases of Non- Cognizable offences Section 155 of the Code deals with the information in case of non-
cognizable offences and their investigation.
All the information received under this section will be recorded by the police officer in charge and will be
entered in such books as may be prescribed by the State Government. According to section 155 (2), a
police officer is not permitted to investigate a case relating to the non-cognizable offence without the
order of the Magistrate who has the power to try such cases.
A police officer acquires the power to investigate as soon as he receives the order and can exercise the
investigating power same as he exercises in any cognizable matter. However, no police officer has the
power to arrest any person in the non-cognizable offence unless he has the warrant to arrest. Further,
as per section 155 (4) of the Criminal Procedure Code if any case involves 2 or more offences and among
all, if one is the cognizable offence, the entire case shall be deemed to be a cognizable case. No defence
would lie on such cases mere on the basis that other are non-cognizable offence and the police officer
will have the power to investigate the manner as prescribed for the cognizable offence[v]
Or short para
Chapter XII of the Code of Criminal Procedure, 1973 (Cr.P.C.) deals with the Information to the
Police and their Powers to Investigate. Such powers are related to all cognizable and non-cognizable
matters as well as matters related to suicide, killed by animals or accidents etc. All the powers of
police are inherent and are not to have encroached through any means. In the case of S.N. Basak,
[1] it was held that the statutory right of the police to carry on an investigation under this chapter
before a prosecution is launched, cannot be interfered with by the Courts either under section 401
(High Court’s power of revision) or 482 (Saving of inherent power of High Court) of the code
10.2 Information in case of Cognizable Offence

Section 154 of the Code requires that every information regarding the commission of any cognizable
offence is to be reduced to writing either by the police officer-in-charge or under his direction. All
such information is written shall be read over to and be signed by the person giving it. The
information which is reduced to writing is known as ‘first information’. ‘First Information Report, is
not mentioned in the Cr.P.C., but these words are understood to mean information recorded under
this section.[2] The main object of the first information report is to set the criminal law in the motion
and to set the investigation process in reference to the alleged offence. The FIR is an essential piece
of any criminal trial in order to corroborate the evidence. The object of insisting upon the prompt
lodging of the FIR is to obtain prior information regarding the circumstances in which crime was
committed, the name of actual culprits and the part played by them as well as the names of eye-
witnesses.[ Meghaji Godadji Thakore v. the State of Gujrat, 1993 Cr LJ 730 (Guj).]
FIR is a primary information received by the police regarding the commission of the alleged crime. It
should not be considered as substantive evidence and it can be used to corroborate the previous
statement made by the person making such FIR. But the Court has to consider other evidence for
deciding whether the case should stand or fall.[ Kanik Lal Thakur v. the State of Bihar]
The first proviso to the section provides any information given by any woman in relation to any
specified offences is required to be recorded by a woman police officer or woman officer. The
second proviso lays down that any offence which is specified in the first proviso is alleged to be
committed against the person who is either mentally or physically disabled is to be recorded by the
police officer at the residence of such person or at any other place convenient to such person in
presence of an interpreter or a special educator. It is further provided that all such information shall
be videographed and the police officer gets the statement to be recorded by the Magistrate.
10.3 Investigation of Cognizable Offences

Section 156 of the Cr.P.C. empowers the police officer to investigate a cognizable case without the
order of the Magistrate. The police officer can investigate the case only where the Court has the
jurisdiction over the local areas
Or this
Section 156(1) empowers an officer in charge of a police station to investigate a cognizable case
without an order of a magistrate. It also limits his power to investigation of such cases within the
local jurisdiction. The violation of this provision is cured by sub-section (2) of section 156. Any defect
or illegality in investigation which has no direct bearing on the competence or the procedure relating
to cognizance or trial would not vitiate the trial and conviction cannot be set aside unless such
illegality or defect in the investigation has brought about miscarriage of justice.[xiv] Sub-section (3) of
section 156 empowers a magistrate to order investigation by the police before taking cognizance of
an offence.
After the magistrate receives the report, he can act on it and discharge the accused or straightway
issue process against the accused or apply his mind to the complaint filed before him and take
action under section 190 of the Criminal Procedure Code. Section 157 (1) provides the manner in
which the investigation is to be conducted. If from the information received or otherwise, an officer in
charge of a police station has reason to suspect the commission of an offence which he is empowered under section
156 to investigate, he shall forthwith send a report of the same to a magistrate empowered to take
cognizance upon a police report, and must proceed in person or depute one of his subordinates to
investigate the facts and circumstances of the case and to take steps for the discovery and arrest of
the offender.
The first proviso however enables the officer to dispense with the investigation on the spot if
information is against a named person and the case is not of a serious nature or there is no sufficient
ground for such an investigation. [State of Punjab v. Bhajanlal AIR 1992 SC 604
] The second proviso as added by the Amended Act,2008 requires investigation in a rape case to be
conducted at the residence of the victim by a woman police officer.
It also provides for questioning the victim less than eighteen years in presence of her parents or
social worker of the locality. Section 157 requires an officer in charge of a police station to send the
report of a cognizable offence to a magistrate. It is called an occurrence report. The underlying
object of this report is to enable a magistrate to have early information of every serious crime so that
he may be in a position to issue necessary directions under section 159. Pala Singh v. State of
Punjab, AIR 1972 SC 2679]
10.4 Information in case of Non-Cognizable Offence

Section 155 of the Code deals with the information in case of non-cognizable offences and their
investigation. All the information received under this section will be recorded by the police officer in
charge and will be entered in such books as may be prescribed by the State Government. According
to section 155 (2), a police officer is not permitted to investigate a case relating to the non-cognizable
offence without the order of the Magistrate who has the power to try such cases. A police officer
acquires the power to investigate as soon as he receives the order and can exercise the investigating
power same as he exercises in any cognizable matter. However, no police officer has the power to
arrest any person in the non-cognizable offence unless he has the warrant to arrest. Further, as per
section 155 (4) if any case involves 2 or more offences and among all, if one is the cognizable
offence, the entire case shall be deemed to be a cognizable case. No defence would lie on such cases
mere on the basis that other are non-cognizable offence and the police officer will have the power to
investigate the manner as prescribed for the cognizable offence
10.5 Powers of Police Officers:

Attendance of witness:
Section 160 of the Criminal Procedure Code empowers the police officer to require the attendance of
witnesses who are within the jurisdiction of such police station. However, where the male person is
below the age of 15 years or above the age of 65 years or woman or physically or mentally infirm
person, the attendance of such person will be required at his place where he resides.
A police officer making an investigation may require the attendance of any person residing within the
limits of his own or adjoining station including the accused acquainted with the facts and
circumstances of the case. However, no male person below fifteen years or female shall be required
to attend at any place other than the place of residence in which such person resides. A police
officer can question such person orally and he is bound to answer truly all questions put to him
relating to the case unless the answers to the questions have a tendency to expose him to a criminal
charge or to a penalty or forfeiture. Such statements can also be reduced into writing by audio-video
electronic means by the police officer. The police officer will furnish copies of the statements to the
accused.[xviii]
Examination of witness
As per section 161 of the Code the police officer who has the power to investigate will examine the
witness and reduce their statements in writing. This section also empowers to record the stamen in
audio-visual electronic means. Moreover, a woman police officer is required to record the statement
of the woman against whom an offence is committed.
Any police officer making an investigation under this Chapter, or any police officer not below such
rank as the State Government may, by general or special order, prescribe in this behalf, acting on
the requisition of such officer, may examine orally any person supposed to be acquainted with the
facts and circumstances of the case.Such person shall be bound to answer truly all questions
relating to such case put to him by such officer, other than questions the answers to which would
have a tendency to expose him to a criminal charge or to a penalty or forfeiture.The police officer
may reduce into writing any statement made to him in the course of an examination under this
section; and if he does so, he shall make a separate and true record of the statement of each such
person whose statement he records.[xix]
Preparation of charge sheet

A police officer is empowered to submit a charge sheet post investigation. It includes a copy of FIR,
statement of the complainant, witnesses, panchnama, dying declaration etc.
As soon as an investigation is completed the officer in-charge of a police station shall forward a
report to a magistrate empowered to take cognizance of the offence on a police report in the form of
the prescribed manner by the State Government stating the names of the parties, nature of the
information, the names of the person appeared to be acquainted with the circumstances of the case,
whether any offence appears to have be committed and if so, by whom, whether the accused has
been arrested, whether he has been released on his bond or sureties, whether he has been
forwarded in custody under section 170 of the criminal procedure code. He shall communicate to the
informant the action taken by him.
Search by Police officer: Section 165

Whenever an officer in charge of police station or a police officer making an investigation has
reasonable grounds for believing that anything necessary for the purposes of an investigation into
any offence which he is authorised to investigate may be found in any place within the limits of the
police station of which he is in charge, or to which he is attached, and that such thing cannot in his
opinion be otherwise obtained without undue delay, such officer may, after recording in writing the
grounds of his belief and specifying in such writing, so far as possible, the thing for which search is
to be made, search, or cause search to be made, for such thing in any place within the limits of such
station.
A police officer proceeding under Sub-Section (1), shall, if practicable, conduct the search in person.
If he is unable to conduct the search in person, and there is no other person competent to make the
search present at the time, he may, after recording in writing his reasons for so doing, require any
officer subordinate to him to make the search, and he shall deliver to such subordinate officer an
order in writing, specifying the place to be searched, and so far as possible, the thing for which
search is to be made; and such subordinate officer may thereupon search for such thing in such
place
The provisions of this Code as to search-warrants and the general provisions as to searches
contained in section 100 shall, so far as may be, apply to a search made under this section.
Copies of any record made under Sub-Section (1) or Sub-Section (3) shall forthwith be sent to the
nearest Magistrate empowered to take cognizance to the offence, and the owner or occupier of the
place searched shall, on application, be furnished, free of cost, with a copy of the same by the
Magistrate.
Right of Police to Interrogate:

It is a legitimate right of the police officer to interrogate any person on some credible information. It is
also true that such persons seldom willingly furnish quick and correct clue to the crimes. A certain
amount of coaxing and promising may, therefore, be necessary. That does not, however, mean that
the police is at liberty to use third degree method, beat a person or resort to any physical torture.
Interrogation should be purposeful to make the investigation effective. Use of force is barbaric and
contrary to law. Police officers are custodian of law, if the themselves commit crime than no one
would be safe in the society[xx]
Conclusion:
Through this research paper we can draw the conclusion that the powers of the police during the
course of investigation must be given pf utmost importance. Such powers of the police has been
listed out systematically in the Criminal Procedure Code, 1973. The procedure of investigation as
well as the method in which the investigation must be followed by the police while handling any
given case has been provide under the code.
The research study has also made it clear that even though the police may have certain
discretionary powers while carrying out any investigation there also exists certain areas wherein the
police in the name of investigation cannot arbitrarily misuse the power conferred upon them.
The study has highlighted the procedure of investigation in cognizable as well as non-cognizable
cases and the role of the police in conducting such investigation. Through the research study it is to
be observed that even though there are properly laid down rules and procedures regarding the
investigation procedure many at times the investigation is not carried in the proper manner. The
police are often seen to be misusing their power and thereby do not work in compliance with the
trust with which the powers have been given to them
11. Cognizance of Offences
11.1 Introduction
‘‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and
taking ‘cognizance of offences’ means taking notice, or becoming aware of the
alleged commission of an offence. The dictionary meaning of the word
‘cognizance’ is ‘judicial hearing of a matter’. The judicial officer will have to take
cognizance of the offence before he could proceed with the conduct of the trial.
Taking cognizance does not involve any kind of formal action but occurs as soon
as a magistrate as such applies his mind to the suspected commission of an
offence for the purpose of legal proceedings. So, taking cognizance is also said
to be the application of judicial mind.
It includes the intention of starting a judicial proceeding with respect to an

offence or taking steps to see whether there is a basis for starting the judicial
proceeding. It is trite that before taking cognizance that court should satisfy
that ingredients of the offence charged are there or not. A court can take
cognizance only once after that it becomes ‘functus officio’.
If a magistrate involves his mind not for reason of proceeding as mentioned

above, but for taking action of some other kind, example ordering investigation
under Section 156(3) or issuing the search warrant for the purpose of the
investigation, he cannot be said to have taken cognizance of offence.
The term ‘Cognizance of offence’ has not been defined in the Criminal Procedure
Code. Section 190, 191, 192, 193, 194, 195, 196, 197, 198, and 199 deals with
methods by which and the limitations subject to which various criminal courts
are established to take cognizance of offences. However, the meaning of the
term is well defined by the Courts. Taking cognizance is the first and foremost
steps towards the trail. The judicial officer will have to take cognizance of the
offence before he could proceed to conduct or trail.
In the case of R.R Chari v. State of U.P., it was held by the Apex Court
that:
“Taking cognizance does not mean any formal action or expected action of any
kind but occurs as soon as a magistrate as such involves his mind to the
suspected commission of an offence.”
11.2 Cognizance of offences by Magistrate
In Section 190, Any Magistrate of the first class and the second class may take
cognizance of any offence-
1. Upon receiving a complaint of facts related to offences.

2. Upon police reports of facts.
3. Upon information received from a person (other than a police officer),
or upon his own knowledge.
In Section 190(2), it is given that Second class magistrate can be empowered
by Chief Judicial Magistrate to take cognizance under Section 190(1).
Transfer on the application of the accused

Section 191 deals with ‘Transfer on the application of the accused’.
When a Magistrate takes cognizance by another person other than a police

officer, or upon his own knowledge, then accused is entitled to have the case
inquired into or tried by another judicial magistrate. If accused or any of
accused object to further proceedings before the magistrate taking cognizance,
the case shall be transferred to such other magistrate specified by the Chief
Judicial Magistrate.
In simple words, when a Magistrate takes cognizance by another person other

than a police officer, or upon his own knowledge, then accused can change
Judicial Magistrate according to his desire before taking any evidence.
Making over of cases to Magistrates

Section 192 deals with ‘Making over of cases to Magistrates’.
Any Chief Judicial Magistrate can make over the case for inquiry or trial to any
competent Magistrate subordinate to him. The Chief Judicial Magistrate can give
general or specific order to any first-class magistrate to make over the case for
inquiry or trial to another competent Judicial magistrate.
11.3 Cognizance of offences by Courts of Session

According to Section 193, “Courts of Session are not allowed to take cognizance
of any offence (as a court of original jurisdiction) unless the case has been
committed to it by a Magistrate.” When it is expressly provided by this code or
by any other law, then only Courts of Session are allowed.
11.4 Limitations on the power to take cognisance
Prosecutions for contempt of the lawful authority of

public servants
According to Section 195(1)(a), “Court will not take cognizance to those cases
which punishable under Section 172 to Section 188 of Indian Penal Code unless
a written complaint is made by a public servant.” Section 172 to 188 of IPC
deals with offences related to contempt of public servant. The court will not take
cognizance in case of an attempt, conspiracy, abetment of offence given in
Section 172 to 188 of IPC.
According to Section 195(2), ‘‘Court will not further proceed with the trial when
the order of withdrawal is given by a superior officer of a public servant (who
has complained).’’ Provided that if trial in the court has been concluded then no
such withdrawal shall be ordered.
Prosecution for offences against public justice

According to Section 195(1)(b)(i), ‘‘Court will not take cognizance to those
cases which are offensive under Section
193 to 196, 199, 200, 205 to 211 and 228 of Indian Penal Code unless a written
complaint is made by that court or by some other court to which that Court is
subordinate.” Above mentioned sections of IPC deals with offences against
public justice. The court will not take cognizance in case of an attempt,
conspiracy, abetment of offences against public justice.
Prosecution for offences relating to documents

given in evidence
According to Section 195(1)(b)(ii), ‘‘Court will not take cognizance to those
cases which offensive under Section 463, or punishable under Section
471, 475 or 476 of the IPC unless a written complaint is made by that court or
by some other court to which that Court is subordinate.” Above mentioned
sections of the IPC deals with offences related to documents given in evidence.
The court will not take cognizance in case of an attempt, conspiracy, abetment
of offences relating to documents given in evidence.
Section 195(3) deals with the meaning of ‘court’ in Section195(1)(b). ‘Court’
means a Civil, Revenue or Criminal Court, and included a tribunal constituted by
or under a Central, Provincial or State Act if that Act has declared as Court for
the purpose of this section.
Section 195(4) deals with the concept of the superior court and subordinate
court discussed in Section 195(1)(b). When Court ‘A’ has appel jurisdiction of
the decision given by Court ‘B’, then we will say that Court ‘B’ is subordinate to
Court ‘A’.
Prosecution for offences against the state

According to Section 196(1), ‘‘Court will not take cognizance to those cases
which punishable under Chapter VI (Of Offences against the State) or
under Section 153A, Section 153B, Section 295A or Section 505 of Indian Penal
Code except with the consent of the Central Government or of the State
Government.”
Above mentioned sections of IPC deal with offences against the state. Chapter
VI of IPC deals with the offence against the state. Section 153A of IPC deals
with harmony, 295A deals with the offence of statements which result in
infringements of religious belief. Section 505 deals with an offence related to
public mischief.
Prosecution for the offence of criminal conspiracy

According to Section 196(2), “Court will not take cognizance to offences of any
criminal conspiracy under Section 120B of Indian Penal Code (other than a
criminal conspiracy to commit a cognizable offence punishable with death,
imprisonment for life or rigorous imprisonment for two a term of two years or
upwards) unless consent in writing is given by the State Government or the
District Magistrate to initiation of the proceedings.”
Where Criminal Conspiracy under Section 195 applies, no such consent shall be

necessary.
According to Section 196(3), “A preliminary investigation by a police officer (not

below the rank of inspector) is necessary before giving consent by Central
Government, State Government or District Magistrate.”
Prosecution of Judges and Public Servants
According to Section 197(1), “Court will not take cognizance to offences done
by Judges, Magistrates or any Public Servants during the course of employment
unless consent in writing is given by the State Government(when offender is
under course of employment of state government) or the Central
Government(when offender is under course of employment of central
government) to initiation of the proceedings.” In the case of State emergency in
any state, only Central Government will give consent for such proceedings.
There is no consent requires for cognizance when Judges, Magistrate or Public

Servants has done offence which is punishable under Section
161A, 161B, 354A to 354D, 370, 376, 376A, 376B, 376C and 509 of Indian
Penal Code.
Prosecution of members of Armed Forces

According to Section 197(2), “Court will not take cognizance to offences done
by any member of the Armed Forces of the Union during the course of
employment unless consent given by the Central Government.”
According to Section 197(3), “Section 197(2) will also apply to such class or
category of the members of Forces charged with the maintenance of public
order.”
According to Section 197(4), “The Central Government and the State

Government may determine the person who will prosecution of such Judge,
Magistrate or public servant.”
Prosecution for offences against marriage

According to Section 198(1), “Court will not take cognizance to offences
punishable under Chapter XX (Of Offences related to Marriage) of Indian Penal
Code unless complaint made by the victim”.
1. With the consent of Court, the third person can also make a complaint
on behalf of a victim who is idiot, lunatic, minor, sick, women(who
can’t appear in public). According to Section 198(3), ‘Initially, guardian
of the victim has reasonable opportunities to be heard’.
2. Third-person who is authorised by husband (serving in the armed
forces of union and unable to get leave) can make a complaint on his
behalf. According to Section 198(4), ‘Authorization given by husband
shall be in writing, signed or attested by husband, countersigned by his
Commanding officer and shall be accomplished by a certificate signed
by that officer’. According to Section 198(5), ‘Any Certificate and
signed document which is discussed in Section 198(4) is not presumed
genuine and received in evidence unless the contrary is proved’.
3. Father, mother, brother, sister, son or daughter or by her father’s or
mother’s brother or sister of the wife who is the victim under Section
494 of Indian Penal Code can make the complaint on behalf of the wife.
According to Section 198(2), “Court will not take cognizance to offences
punishable under Section 497 or Section 498 (where the victim is husband) of
the IPC unless the husband makes a complaint. Provided that in case of absence
of the husband, some person who had care of the women on his behalf can
make a complaint on behalf of the husband”.
Prosecution of the husband for rape

A husband can also rape his own wife when the wife is under fifteen years of
age. According to Section 198(6), “Court will not take cognizance to offences
punishable under Section 376 of Indian Penal Code if more than one year has
elapsed from the date of commission’.
According to Section 198(7), Section198 also applies on abetment or attempt to

commit an offence under chapter XX of IPC”.
Prosecution for defamation

According to Section 199(1), “Court will not take cognizance to offences which
are punishable under Chapter XXI (Of Defamation) of the IPC unless the
complaint is made by the victim’’. Provided that the third party can also make a
complaint on behalf of the victim, with the permission of the Court when the
victim is not able to make a complaint.
According to Section 199(2), “Court of sessions will take cognizance to offences

which are punishable under Chapter XXI of the IPC, alleged to have been
committed against the President of India, the Vice President of India, the
Governor of a state, the Administrator of a Union territory or a Minister of the
Union or of a state or of a union territory, or any other public servant employed
under state or union. The complaint in writing made by the Public Prosecutor”.
Section 199(2) is an exception to Section 193.
Section 199(3) deals with ‘Contents of Complaint’. It includes information about

facts of the offence, the nature of that offence and information about every
sufficient point in a complaint through which sufficient notice is given to accused
who have done offence of defamation.
According to Section 199(4), ‘‘Court will not take cognizance to offences which
are punishable under Chapter XXI of the IPC, alleged to have been committed
against Governor, Public servant and Minister of State unless the complaint is
made by the Public prosecutor with the consent of State Government’’ and if the
same is alleged to have been committed against the President, the Vice
President, Public Servant employed under Union, then also Court will not take
cognizance unless the complaint is made by the Public prosecutor with the
consent of the Central Government.
According to Section 199(5), ‘‘It is mandatory to the complaint by the public

prosecutor in the above section within 6 months of the commission of the
offence’’.
According to Section 199(6), ‘‘Public Servant can also make complaint himself in
Magistrate Court’’.
11.5 Complaints to magistrates
Examination of complainant
Section 200 deals with ‘Examination of the complainant’. The complaint shall
examine upon oath the complainant and the witnesses present, and it should
also be in writing and signed by the complainant, witnesses and also by
Magistrate. Provided that, the Magistrate need not examine the complainant
and the witnesses when the complaint is made in writing.
There is no need for re-examination in case of a ‘complaint by a public servant

or court’ and ‘Magistrate makes over the case to another Magistrate
under Section 192’.
The procedure by Magistrate not competent to take
cognizance of the case
According to Section 201, ‘‘If a complaint is made before a Magistrate who is
not competent to take cognizance of the case, then Magistrate will do two
things are follows-
1. If Complaint is made in writing, then Magistrate will refer that case to

that proper Court.
2. If the Complaint is not in writing, then Magistrate will direct the
complainant to the proper Court.’’
Postponement of issue of process

According to Section 202, ‘‘The Magistrate authorised to take cognizance or
made over to him under Section 192 may postpone the issue against the
accused, and either inquire himself or by police officers or other persons as he
thinks fit, for the purpose of deciding whether or not there is sufficient ground
for proceeding”.
Dismissal of the complaint

According to Section 203, “The Magistrate can also dismiss the complaint if
inquiry or investigation under Section 202 result no ground for proceedings”.
11.6 Conclusion
The word ‘Cognizance’ is not defined in the Criminal Procedure Code. Basically,
it means applying the Judicial mind in a suspected commission of the offence.
Chapter XIV of Cr.PC deals with ‘Conditions Requisite for initiation of
proceeding’ and Chapter XV of Cr.PC deals with ‘Complaints to Magistrates’.
12. Charge
12.1 Introduction
What happens when the accused is not informed to him/her under which head
he is charged against? In such a circumstance, the accused trial will lead to
delay injustice and also the accused will be delayed in preparing his defence.
So, it is essential that as soon as the accused is charged for an offence, he must
be informed of his charge. One of the basic requirements of a fair trial in
criminal cases is to give precise information to the accused as to the accusation
against him. This “charge” is then to be read and explained to the accused
person.
12.2 Charge
In simple terms, charge means informing the accused person of the grounds on
which the accused is charged. A charge is defined under Section 2(b) of the
Criminal Procedure Code, 1973 which states, the charge includes any head of
the charge when the charge contains more than one head. The case of V.C
Shukla v. State (1980) explains the purpose of framing charge is to give
intimation to the accused, which is drawn up according to the specific language
of the law, and giving clear and unambiguous or precise notice of the nature of
the accusation that the accused is called upon to meet in the course of a trial.
12.3 Provisions dealing with ‘charge’

A charge is dealt with under Chapter 17 of the Criminal Procedure Code, 1973.
Section 211 to 214 Contents of Charge
Section 216 to 217 Powers of the court to alter the charge
Section 218 Basic rule
Section 219, 220, 221 and 223 Exceptions
Section 224 Effects of withdrawal
Section 215 and 464 Effects of errors
12.4 Form and content of a charge

Section 211 of Cr.PC constitutes essentials elements of the contents of the
charge:
1. The charge form shall state the offence for which the accused is
charged.
2. The charge form shall specify the exact offence name for which the
accused is charged.
3. In case there is no specific name given under any law for the offence
which the accused is charged with, then the definition of the offence
must be clearly stated in the charged form and informed to the
accused.
4. The law and provisions of the law to be mentioned in the charge form.
5. The charge shall be written in the language of the court.
6. The accused shall be informed about his previous allegations which
would expose him to enhanced punishments if found guilty for the
offence charged.
In the case of Court in its motion v Shankroo (1982), the court held that
mere mentioning of the Section under which the accused is charged, without
mentioning the substance of the charge amounts to a serious breach of
procedure.
In Dal Chand v State (1981), the court held that defect in charge
vitiates the conviction.
Section 212 of Cr.PC asserts the charge form shall contain:
1. The offence for which the accused is charged and the particulars like
the time, place and the person against whom the offence is committed
and giving to the accused the precise and clear notice of matter for
which he is charged.
2. The exact time need not be mentioned in the charge form when the
accused is charged with criminal breach of trust or dishonest
misappropriation of money or any other movable property, it is
sufficient if the gross sum is specified and the dates on which such
alleged offence have been committed.
In Ranchhod Lal v. State of Madhya Pradesh (1964), it was held that
failure to mention the particulars precisely due to the nature of the information
may not invalidate the proceedings.
Section 213 of Cr.PC asserts When the nature of the case is such that the
particulars mentioned in Section 211 and 212 do not give the accused sufficient
notice of the matter with which he is charged, the charge shall contain such
particulars of how the alleged offence is committed as will be sufficient for that
purpose.
12.5 Alteration of charge and the procedure to follow such alteration
Section 216 of Cr.PC explains that courts shall have the power to alter or add to
charge at any time before the judgment is pronounced.
The trial court or the appellate court may either alter or add to the charge
provided the only condition is:
 Accused has not faced charges for a new offence.

 Accused must have been given the opportunity of meeting and
defending the charge against him.
After such alteration or any addition made to the charge, the charge shall be
explained to the accused as to enable him to prepare to meet the fresh
challenges.
If the court concludes that the alteration or addition of the charge is likely to be
prejudiced to the accused or the prosecutor then the court may proceed with
the original trial or adjourn it. The case shall not move forward unless the
sanction is obtained in respect of the facts constituting the offence.
12.6 Joinder of charges

In the case of K. Satwant Singh v. State Of Punjab (1960), sections of
joinder of charges are not compelling. They only permit the joint trial of charges
under certain circumstances, and the courts may consider the same in the
interest of the administration of justice after thoroughly studying the facts and
circumstances of each case.
12.7 The basic rule regarding charge and its trial

The initial requirement of a fair trial in criminal cases is a precise statement of
the accusation.
12.8 Exceptions to the basic rule
Exception 1
Section 219 of Cr.PC asserts when a person is accused of an offence of more
than one, but not exceeding three of the same kind, and the offence is
committed within twelve months then the accused may be charged and tried at
one trial for all the offences committed. Offences are said to be of the same
kind when they are punishable with the same amount of punishment under the
same Section of Indian Penal Code or any special law or local laws. The proviso
to Section 219 of Cr.PC states when the accused is punishable under Section
379 of IPC, and it is said to be the offence of the same kind as an offence
punishable under Section 380 of IPC.
In Madan Mohan Sahu v. Central Agencies (2010), cheques were issued within
twelve months. The court held that it was not necessary to file two separate
complaints against their dishonour and it is enough if a single complaint is filed.
Exception 2
Section 220(1) of Cr.PC When the accused commits several offences in the
same transactions, then he may be tried jointly and it is immaterial whether the
offence is of the same kind or not, or whether the number exceeds three or not,
and whether the offence is committed within one year or not.
Mohinder Singh v. The State of Punjab (1998): In this case, it was held that the
court may or may not try all the offences together in one trial.
Exception 3
Section 220(2) of Cr.PC When the accused is charged with one or more offences
of criminal breach of trust or dishonest misappropriation of property the
accused may be charged with and tried at one trial for every such offence.
Exception 4
Section 220(3) of Cr.PC When the accused is charged with an offence which is
falling under two or more separate definitions of law, then the accused may be
charged with and tried at one trial for each of such offences.
Ramayan Bhagat v. The State (1968): In this case, it was said that a man may
be prosecuted under Section 7 of the Essential Commodities Act, 1955 for
having rice above the prescribed limit and also for dacoity in respect of the
same bags of rice.
Exception 5
Section 220(4) of Cr.PC When the accused commits several acts and one of
which constitutes an offence and when it is combined constitutes a different
offence, the accused person may be tried at one trial for the offence constituted
by such acts when combined and for any offence constituted by any one or
more of such acts.
Example: A commits robbery on B, and in doing so voluntarily causes hurt to

him. A may be separately charged with and convicted of an offence under
Section 323, 392 and 394 of IPC.
Exception 6
Section 221 of Cr.PC lays down a few conditions:
1. When a single act or series of acts is of such a nature that it is doubtful

what offence the accused has committed then the accused may be
charged with having committed all or any of such offences and the
charges against may be tried at once or the accused may be charged in
the alternative with having committed someone of said offences.
2. When the accused is charged with one offence but it appears that in
the evidence there is altogether a different offence for which he was
charged then the accused is convicted for the offence only which he
committed although he has not charged with it.
This section is applicable only in cognate offences such as theft and criminal
breach of trust and it does not include offences such as murder and theft.
Achhut Rai v. Emperor (1926): In this case, where the accused is charged with
murder under Section 302 of IPC, the accused cannot be convicted
under Section 194 of the Indian Penal Code.
Exception 7
Section 223 of Cr.PC provides certain persons can be tried jointly:
 Accused who committed the same offence in the same course of the
transaction.
 Accused of an offence and person accused of abetment of or attempt to
commit such offence.
 Accused of more than one offence of the same kind and committed by
them jointly within twelve months.
 Accused of different offences committed in the course of the same
transaction
 Accused of an offence which includes theft, extortion, cheating,
criminal misappropriation, concealment of property.
 Accused of offences under Section 411 and 414 of the Indian Penal
Code.
 Accused of offences under Chapter XII of the Indian Penal Code.
The proviso to Section 223 of Cr.PC provides that the magistrate on an
application of the accused person may direct their joint trial even if they do not
fall under the categories specified if the magistrate believes that trial of such
persons would not be prejudicially affected.
Dinesh Kumar v. State (2015): In this case, the court held that where several
persons are alleged to have committed several separate offences, which are not
wholly unconnected then there may be a joint trial unless such joint trial is
likely to cause either embarrassment or difficulty to the accused in defending
themselves.
12.9 Conviction of an offence not charged when such offence is included in an offence
charged
Section 222 of Cr.PC provided when the accused is charged with several
offences and some of which when combined and proved form a complete minor
offence, then the accused may be convicted of a minor offence though he was
not charged with such minor offence. Where the accused is charged with an
offence, he may be convicted of an attempt to commit such offence although
the attempt is not separately charged.
Unless the conditions are fulfilled for the conviction of the accused of the minor
offence, the conviction cannot take place. Eg: where the sanction is lacking.
This section applies only when the major and minor offences are cognate.
12.10 Withdrawal of remaining charge on conviction on one of several charges

Section 224 of Cr.PC states when the accused is charged with more than one
head, and after the conviction of the accused under that head then either the
complainant or the officer conducting the prosecution may withdraw the
remaining charge with the consent of the court.
Vibhubti Narayan Chaubey v. State of UP (2002), in this case, a charge can be

withdrawn under this section only after the judgment and it cannot be deleted.
12.11 Effect of errors

Section 215 and 464 of Cr.PC deals with effect or errors.
The idea behind these sections is to prevent failure of justice where there has
been an only technical breach of rules and while not going to the roots of the
case as such. Section 215 of Cr.PC states there shall be no error or omission
either in stating the offence or the particulars which are required to be stated in
the charge, and they shall be regarded as material at any stage of the trial
unless the accused was mislead by such error or occasioned as a consequence
and as a consequence it has failed justice.
Bhagabat Das v. The State of Orissa (1989): In this case, the court held that
the insignificant irregularities in stating the particulars of the offence in the
charge will not affect the trial or its outcome.
Section 464 of Cr.PC states that no sentence or order given by the competent
jurisdiction shall be invalid merely on the ground that no charge was framed or
charged framed was based on some error, omission, irregularity, including any
misjoinder of charge unless, in the opinion of the court of appeal, confirmation
or revision, a failure of justice has been occasioned.
If the court concludes there has been omission or irregularity or error to frame
a charge then the court may order a charge to be framed and that the trial may
be recommenced from that point immediately after framing of the charge or
direct the new trial to be held upon the new charge framed.
Provided, if the court is in the opinion that facts of the case are such that no
valid charge could be preferred against the accused then the conviction shall be
quashed.
12.12 Conclusion
In a criminal trial, the charge is the foundation of the accusation and every care
must be taken to see that it is not only properly framed but the evidence is only
tendered concerning the matters put in a charge and not the other matters.
13. Principal Features Of A Fair Trial (check if this is imp)
13.1 Introduction
“Lex uno ore omnes alloquitur” which means that everyone is equal before the
eyes of the law which is an important principle which forms the basis of judicial
proceedings across the world. The law treats everyone equally and this principle
is enshrined in various provisions of the Indian Constitution. Article 14 of the
Indian Constitution exclusively deals with the Right to Equality. Trials are an
indispensable part of any proceeding. Conducting fair trails is an important
aspect of the law which ensures equality.
13.2 Concept of a fair trial

The concept of a fair trial is not just a right provided in our country but it is also
guaranteed by various other legislations all over the world. Article 6 of the
European Convention on Human Rights deals with the Right to a fair trial.
According to this Article, everyone is entitled to a fair and public hearing within
a reasonable time. The trial must be conducted by an independent and impartial
tribunal established by law. The African Charter of Human Rights protects the
dignity of humans and prevents exploitation under Article 5. Article 6 of the
African Charter of Human Rights guarantees individual liberty and security to a
person. The right to a fair trial is guaranteed under Article 7 which includes
various rights like:
 Right to appeal to the competent jurisdiction.

 Right to defence.
 Right to be tried.
 Right to be presumed innocent until proven otherwise.
Article 14 of the International Convention on Civil and Political Rights (ICCPR)
guarantees the right to a fair trial and Article 16 provides a right to recognition
everywhere as a person before the law. Article 10 of the Universal Declaration
of Human Rights (UDHR), which guarantees the right to a fair trial. The
provisions related to a fair trial in the International Convention on Civil and
Political Rights (ICCPR) is more exhaustive and detailed than the provisions in
the Universal Declaration of Human Rights (UDHR).
13.3 Adversary system

The Court proceedings in the countries which follow common law are adversarial
in nature. The right to equality is protected in this system as both parties have
an equal voice of representation. In this system, the counsels of both the
parties defend their parties and establish the facts which are supporting them.
The Judge decides on the behalf of the facts mentioned, whereas in the
inquisitorial system the involvement of judges are more. The court is actively
involved in collecting evidence. In the inquisitorial system, the judges
themselves might conduct the investigation and in certain scenarios, sometimes
it can be biased. The inquisitorial system is mostly used in the civil legal
systems like France and Italy.
13.4 Trials
Trials are an inevitable aspect to bring out justice. Trials have to be conducted
properly following all the procedures and steps so that it would be fair and free
from influences. There is no proper definition of the term trial in the Code of
Criminal Procedure,1973. Trials are an examination of offence by the judicial
bodies which have jurisdiction over it. Section 225 of the Code of Criminal
Procedure,1973 mandates that in every trial before the Court of Session, the
Public Prosecutor will conduct the prosecution. Section 304 of the Code of
Criminal Procedure,1973 deals provides that it is the duty of the State to
provide legal assistance to an accused if the Court feels that the accused has no
sufficient means to appoint a pleader for his defence. The Court itself will
appoint a pleader in that case at the expense of the State. This provision
ensures that the trial is not biased as there is equal representation from both
sides. The High Court with the previous approval of the State Government
makes rules under various aspects for:
 The mode of selecting pleaders for defence;

 The facilities to be allowed to such pleaders by the Courts;
 The fee which is payable to such pleaders by the Government.
13.5 Presumption of Innocence

Presumption of innocence is an important factor to conduct a fair trial as it
prevents wrongful convictions. This presumption of innocence is based on the
Blackstone’s ratio, which is the idea that “It is better that ten guilty persons
escape than that one innocent suffer”. This concept of presumption of innocence
is also derived from the Latin term ‘Ei incumbit probatio qui dicit, non qui
negat’, which basically means the burden of proof is on the one who declares,
not on the one who denies. It is the duty of the prosecution to prove that the
accused is guilty with proper evidence beyond any reasonable doubts.
Article 14(2) of the International Convention on Civil and Political Rights also
provides that everyone who is accused is presumed to be innocent as long as it
is proved otherwise. Article 11 of the Universal Declaration of Human Rights,
also deals with the presumption of innocence.
The same principle is also enshrined under Article 6(2) of the European

Convention for the Protection of Human Rights and Fundamental Freedoms.
This principle is also followed in various cases decided by the Indian Courts, in
the case of Dataram Singh v State of Uttar Pradesh, it was held that the
individual freedom cannot be cut off for an infinite period as long as the person
is proved guilty. This freedom can only be affected when the guilt is proved.
There are certain provisions in the Indian Evidence Act like Section 111A which
acts as an exception for this presumption of innocence. According to this
Section, if a person has tampered the peace and security in certain places, or if
they commit any offences under Section 121, Section 121 A, Section
122 and Section 123 of the Indian Penal Code, then they are not presumed to
be innocent. Section 121 of the Indian Penal Code deals with the offence of
waging war or planning to war against the Government of India. Section 121A
of the Indian Penal Code punishes the person who conspires to commit the
offence of war against the Government. Section 122 deals with the offence of
collecting arms with an intention to wage war against the Government. Section
123 deals with the offence of concealing certain facts which would facilitate the
waging of war. There is also an exception to the presumption of innocence in
offences like dowry death.
13.6 Independent, Impartial and Competent Judges

The independence of the judiciary is an indispensable aspect of every fair trial.
The separation of powers protects the independence of the judiciary. The
competency of judges is an important factor that will decide the fate of the
judiciary. If the judges appointed are incompetent then the whole process of
trial is damaged. Article 217 of the Indian Constitution deals with the
appointment of the Judges of the High Court. According to this article, there are
various qualifications that have to be followed while appointing the Judges like,
 The Judges of the High Court are appointed by the President after
consultation with the Chief Justice of India.
 The person appointed has to be a Citizen of India.
 The person must have held a judicial office for at least ten years in
India.
 The person has to be an advocate of a High Court or of two or more
such Courts in succession for at least ten years.
There were recommendations to form the National Judicial Appointments
Commission under the 99th amendment by bringing in a new Article 124A and
the main functions of the commission would be,
 To recommend persons for an appointment for the post of Chief Justice

of India and Judges of various courts in India.
 To ensure that the person recommended has all the eligibility and
integrity.
 To recommend persons for transfer from one Court to another Court.
The Supreme Court struck down the amendment and held it to be
unconstitutional and thus the old collegium system of appointing the Judges was
retained. The Supreme Court later brought in new developments to bring
transparency in the collegium system like the Central Government will not
prepare a draft memorandum for judicial appointment.
13.7 Venue of Trial

The venue of the trial also plays an important role in ensuring the fairness of
the trial. The Court has to be competent to deal with the cases. Section 177 of
the Code of Criminal Procedure,1973 provides that the ordinary place of enquiry
or trial would be the Court within whose local jurisdiction it was
committed. Section 178 of the Code of Criminal Procedure,1973 deals with the
place of trial. According to this Section, the jurisdiction can be changed in
certain situations like when it is uncertain in which of several local areas an
offence is completed or when an offence is committed partly in one place and
partly in another place and when an offence is a continuing one. According
to Section 181 of the Code of Criminal Procedure, 1973 sometimes the place of
a trial depends on certain types of offences, for example, offences like
kidnapping or abduction can be tried by the Court where the person was
kidnapped or abducted.
13.7 Right of the Accused to Know the Accusation

Article 22 of the Indian Constitution provides that no person can be detained in
custody without giving proper information. The Sixth Amendment of the
Constitution of the United States also provides this right of the accused to know
the accusation. The accused should be aware of the reason why he is being
detained. Section 50 of the Code of Criminal Procedure also provides that it is
the right of every accused to be informed about the various grounds of arrest.
The police officer has to inform the person of the various reasons for arrest if
the arrest is done without a warrant.
Accused Person to be tried in his Presence

It is necessary for the accused to be tried in his presence, however, there are
certain situations where the magistrate can dispense the attendance after
considering relevant factors. Section 317 of the Code of Criminal
Procedure,1973 grants the Magistrate this power. The Magistrate can only
dispense the attendance only if it does not affect the process of the trial in any
manner. This principle is also supported by Article 14 of the Indian Constitution
which guarantees equality.
Evidence to be taken in the Presence of Accused
Section 273 of the Code of Criminal Procedure,1973 provides that the evidence
should be taken in the presence of the accused. This provision should not be
followed only in rare situations like cases relating to the rape of a minor
woman. Section 299 of the Code of Criminal Procedure,1973 provides the
conditions to record evidence in the absence of the accused.
Right of accused person to cross-examine prosecution

witnesses and to produce evidence in defence
The accused person has the right to cross-examine any number of witnesses so
that it would ensure the fairness of the trial. In the case of Mohd. Hussain
Julfikar Ali v. The State (Govt. of NCT) Delhi, the appellant was not provided
with an opportunity to cross-examine the fifty-six witnesses. Only one witness
was cross-examined to complete the formality. Hence the appellant’s conviction
and sentence was set aside for the same reasons.
Right of the Accused Person to have an Expeditious Trial

The concept of speedy trial increases the public confidence in the judiciary. The
concept of speedy trial is enshrined in Article 21 of the Indian Constitution. In
the case of Babu Singh v State of Uttar Pradesh, it was said that the speedy
trial is also part of the fair trial. In the case of Kartar Singh v State of Punjab, it
was declared that the speedy trial is a part of the right to life and personal
liberty. The same principle is also enforced in various other cases like Husainera
Khatoon and others v. Home Secretary, State of Bihar. The undue delay must
be avoided and it must be also ensured that all the proceedings of the trial are
followed properly.
13.8 The doctrine of “Autrefois Convict” and “Autrefois Acquit”

The principle autrefois convict means ‘formerly convicted’ and the principle
autrefois acquit means ‘formerly acquitted’.The same principle is also accepted
by the various Australian courts by the name “issue-estoppel”.Autrefois convict
is a defence plea that is followed and accepted by the common law countries.
This plea ensures that no person is convicted twice for the same offence. This
plea will stop the entire proceeding. The concept of double jeopardy is also
prevented by our Indian Constitution. Section 300 of the Code of Criminal
Procedure,1973 provides that the person once convicted or acquitted not to be
tried for the same offence. There are certain exceptions to the above-mentioned
rule in subsection (2) and (4) of Section 300 of the Code of Criminal
Procedure,1973. According to this section the person acquitted or convicted can
be tried again if the prior trial was not done by a competent court. The person
acquitted or convicted can be tried again with the consent of the State
Government for any different offence for which a separate charge has been
made against the accused in the formal trial.
13.9 Conclusion
The Right to get a fair trial is an essential right of every accused. The concept of
fair trial brings confidence in the public and the people start to believe in the
judiciary. It is necessary to follow every above-mentioned aspect in order to
ensure that the trial is free from biases. These rights are not just domestic
rights but also the various international conventions guarantee these rights.
Thus the concept of a fair trial is an essential aspect of every proceeding.
14. Trial procedures

14.1 Introduction
The only best thing that is gifted to us by the Britishers is the “Law and Legal
System”. Especially the Criminal Justice system and the legislations. The Code
of Criminal Procedure deals with various procedures in a criminal proceeding.
One of which is the Trial system under Criminal Procedure Code.
14.2 What is Trial?

The word “trial” is not defined anywhere in the Criminal Procedure Code,
however, it means a commonly understood stage of trial which begins after
framing the charge and ends with the conviction or acquittal.
In simple words, trial can be defined as a formal examination of evidence by a

judge, typically before a jury, in order to decide guilt in a case of criminal or
civil proceedings.[1]
14.3 Types of Trial in Indian Legal System

The trial of the accused in the Indian Criminal Law is divided through the
punishments of the said committed offence. The Trial of the accused for the
offence committed by him is divided into four types.
Session Trial– If the offence committed is punishable with more than seven
years of imprisonment or Life imprisonment or Death, the trial is to be
conducted in a Sessions court after being committed or forwarded to the court
by a magistrate.[2]
Warrant Trial– Warrant case includes offence punishable with the death
penalty, imprisonment for life and imprisonment exceeding two years. A trial in
a warrant case begins either by filing an FIR in a Police Station or by filing it
before a Magistrate.[3]
Summon Trial- If the offence committed is punishable with less than two years
of imprisonment, it is taken as a summons case. In respect of this offence, it is
not necessary to frame charges. Summon is issued by the Magistrate to the
accused under section 204(1) (a) of Cr.P.C, 1973. “Summon case” means a
case relating to an offence, not being a warrant case. The procedure to deal
with such matter provided in section 251 to 259 of Cr.P.C, 1973 which is not
as serious/formal as other trials (Session trial, warrant case instituted on the
police report and warrant cases instituted otherwise than on police report). [4]
Summary Trial– Those trials in which cases are disposed of speedily with a

simple procedure to follow and recording of such trials are done summarily. In
this trial only small cases are taken in hand and complicated cases are reserved
for summon and warrant trials. Legal Provisions for summary trial are given
under Section 260-265 of Cr.P.C, 1973.
14.4 Legal Provisions for the Trials in Criminal

Procedure Code
1. Sec 225-237 deal with trial of warrant cases by a Court of Session.
2. Sec 238-250 deal with trial of warrant cases by magistrates.
3. Sections 251-259 provides procedure for trial of summons cases
by magistrates.
4. Sections 260-265 make provisions relating to summary trials.
14.5 Procedure in different types of Criminal Trials
Procedure of Court of Session in Criminal Trial

Chapter XVIII of Cr.P.C. starting with Section 225 and ending with section
237 deals with provisions governing the trial before a Court of Session.
The court of Sessions has to go through three stages of the Trial:

First stage of Trial
In the Court of Session, every trial is to be conducted by a Public

Prosecutor (Section 225). The Court of Session is not only accountable in
taking cognizance of the offences under Section 199; it can also take
cognizance of any matter pertaining to the offence of grievous nature. To be
more clear and concise, the court of session is a court at District level providing
its service only for more grave and serious matters. The accused is brought
before the court for the proof of his guilt. The first and the foremost work of the
prosecutor are to propose the evidence in the court to prove the guilt of the
accused (Section 226).
In Banwari v. State of Uttar Pradesh, their Lordships of the Supreme Court

have also clearly observed that Section 239 lays down (see page 1201) that the
Sessions Court has no power under the Code of Criminal Procedure to drop any
charges under which the accused has been committed for trial. He can, in the
exercise of the powers under Section 226 of the Code of Criminal Procedure,
frame a charge, or add to or otherwise alter the charge as the case may be, in
cases where a person is committed for trial without a charge or with an
imperfect or erroneous charge.[5]
If after the consideration of the evidence and the submission of the accused,
the judge considers that there is no sufficient ground for proceeding against the
accused, he shall discharge the accused along with the reason for doing
so (Section 227).
If in case after consideration the court believes that there is ground for
presuming that the accused has committed an offence which is triable by the
court then the court shall frame in writing a charge against the accused of the
offence but if not exclusively triable by the court of session then after framing of
charge, the case is transferred to Chief Judicial Magistrate or any Judicial
Magistrate of the first class.
The framed charges are to be read aloud and clear in front of the accused with
an easy understandable language and the accused is asked if he pleads guilty
for the abovementioned charges or not (Section 228).
Second Stage Of Trial
If the accused is well versed with framed charges and pleads guilty for the same
then the Judge shall record his plea and convict him but all depends on the
discretion of the Judge. Under Section 229, the Judge has the power of
discretion to convict the accused but it is desirable that the accused is not
straight way convicted. The proper course would be to call upon the prosecution
to prove its case by adducing evidence.
If the accused refuses to plead under section 229 then the Judge shall fix a date
for prosecution examination of witnesses, production of any document
etc (Section 230).
On the fixed date the Judge shall examine the witnesses, evidence may be
produced in support of the prosecution.
Third Stage of Trial
If after examining the accused and evidence given by the Prosecution, the
Judge considers that there is no evidence that the accused committed the
offence; the Judge shall acquit the accused (Section 232).
If the evidence given by the prosecution clearly justify the court in framing of
charges and denial of acquittal of the accused then the defense counsel shall
adduce evidence in support of his client. Even accused can apply for the issue of
any process for the attendance of any witness or the production of any
document or thing but it should not give a wrong impression to the court of
defeating the ends of Justice (Section 233).
After hearing both sides, when the issue arises for giving a Closing statement
that Section 314 of the Act apply and the Closing statement is given by
defense under Section 234 and under Section 235 by the prosecution side.
By keeping in mind all the evidence the judge should make the final Judgment.
Procedure in Warrant Trial

Chapter XIX of Cr.P.C starting with Section 238 and ending with Section
250 deals with the provisions governing the warrant trial.
For the trial of warrants cases by Magistrate,

procedures are prescribed. One is adopted by
Magistrate in cases instituted on police reports, (Sections 238 to 243
Cr.P.C. and 248 to 250
of Cr.P.C.) and other is for cases instituted otherwise than police reports.
(Sections 244 to 247 of Cr.P.C. and 248 to 250, 275 Cr.P.C.)
Police case
First stage of trial
With the compliance of Section 207, the magistrate must satisfy himself that he
has been supplied with all the necessary documents with charge sheet (Section
238). If after consideration of the charge sheet filed under Section 173, the
magistrate considers the charge against the accused to be groundless, he shall
discharge the accused and record the reasons for such discharge (Section
239). If in case the magistrate is of the opinion that the accused is triable then
charges shall be framed against the accused (Secton 240).
In the case of the State of U.P. vs. Lakshmi Brahman in the context of duty
of Magistrate at the stage of commitment. The Court considered the nature of
duty lying upon the magistrate with regard to observance of Section
207 Cr.P.C. and it said that the duty cast on the Magistrate by Section 207 has
to be performed in a judicial manner. [6]
Second stage of trial
After framing a charge under Section 240, the Magistrate has to prove under
Sec 242 Cr.P.C and under subsection (3) of that Section the Magistrate is
bound to proceed to take all such evidence as may be produced in support
of the prosecution. This provision and the provisions in subsection (1) and
(2) of Section 243, CrPC are mandatory. The Provisions of Section
243 applies both to cases instituted under Police report and Private complaint.
In the case of Vijay Raj vs State of Rajasthan, the procedure to be followed

after the accused is called upon to enter his defense, is the same in both the
cases instituted upon a police report and those instituted otherwise than on
police report.[7]
In the case of P.Saravanan vs State Represented by the Inspector of

Police, it is pertinent to note that the recording of the plea of guilty both in a
warrant case and in a sessions case, under Section 241 under Section 229 of
Cr.P.C., as the case may be, case only often, the charge has been read out to
the accused. The charge must be specific, unambiguous, very clear and the
admission by the accused must be unambiguous and unqualified unconditional.
[8]
Private Complaint
If the case is instituted on a private complaint and the accused is brought

before the magistrate the prosecution must satisfy itself with all the evidence
produced and can issue a summon to any of its witnesses directing him to
attend or to produce any document (Section 244). After taking all the
evidence under Section 244 if the magistrate finds it suitable to discharge the
accused at any previous stage of the case considers his charges to be
groundless (Section 245).
Second stage of trial
As per Section 247 the defense counsel shall produce his evidence to support

the accused. If at the framed charges against the accused the magistrate finds
him no guilty then an order of acquittal shall be released.
On the off chance that any case is organized on the objection to judge or to
Police official or a blamed individual is introduced before the justice and officer
finds that there is no ground against denounced individual then he will be
released quickly by the judge, the individual who did the protest will be called to
give clarification of why he ought not pay add up to the individual against whom
blamed charges were made.
In the case of Narpat Singh vs Anr., as a matter of fact attributing

uncharitable remarks and initiation of proceedings under Section 250 Cr.P.C
against the petitioners are in gross violation of principles of natural justice.
Therefore, the impugned action is per se vulnerable on this count also. It is also
noteworthy that registration of case against the accused persons by the
petitioners and thereafter carrying out investigation was pursuant to an order of
the Court under Section 156(3) Cr.P.C.[9]
Procedure in summon trial

Chapter XX of Cr.P.C starting with Section 252 and ending with Section
259 deals with the provisions governing the Summon trial.

On the appearance of the accused in front of the magistrate, the particulars of
the offence for which he is accused must be stated to him and ask him whether
he pleads guilty for the same offences that he is charged with (Section 251).
Where the summon has been issued to the accused under Section 206 and he,
therefore, pleads guilty for the same without appearing in front of the
magistrate, he shall transmit to the magistrate by post or through messenger.
He shall also specify about the fine in summons but in case the accused does
not accept his plea of guilty then magistrate shall with his discretionary powers
sentence him to pay fine specified in his summons (Section 253).
In the case of Biru Ram vs Ishar Singh & onr., sub-section (2) of Section
253 of Criminal Procedure Code, provides that nothing in this Section shall be
deemed to prevent a Magistrate from discharging the accused at any previous
stage of the case if, for reasons to be recorded by such Magistrate, he considers
the charge to be groundless. [10]
Procedure when not convicted Under Section 252 or Section 203- Then

in such a case a magistrate shall hear the prosecution and take the evidence as
may be produced in support of the prosecution or shall issue summons to any
witness directing him to attend or to produce any document or other thing.
Second Stage of trial
Acquittal or Conviction- If the magistrate is satisfied that the accused is

guilty of the charges framed then the magistrate may convict the accused under
Section 252 or Section 255 and where the magistrate upon taking evidence
under section 254 and further evidence find accused not guilty under the
framed charges then he shall record an order of acquittal of the accused.
Withdrawal of complaint- Before the final order is passed, if the complainant

satisfies the magistrate that there are sufficient grounds for him to withdraw his
complaint against the accused, and then the magistrate may permit him to
withdraw the same (Section 257).
Power of court to convert summon cases in warrant cases- In the trail of

summon case with an offence punishable for a term exceeding six months, if
the magistrate in the sake of interest of justice may covert the summon case
into a warrant case by following the procedure of the warrant case and a
rehearing of the case in the manner provided in the code (Section 259).
Procedure of Summary trial
Chapter XXI of Cr.P.C starting with Section 260 and ending with Section
265L deals with the provisions governing the Summon trial.
The foremost objective of the Summary trial is to dispose of the cases speedily.
Procedure to be followed- The procedure to be followed under summary trial

is same as the procedure specified for summons trail (Section 262).
If a sentence of fine not exceeding two hundred rupees has been passed then
no chance of appeal be given.
In every case of summary trial if the accused doesn’t plead guilty then the
magistrate shall record the substance of the evidence and the judgment that is
delivered must also contain a brief statement of the reason for coming in a
particular finding (Section 264).
Section 265 emphasizes that every such record i.e. the particulars mentioned i
n Section 263, and the substance of evidence and judgment must be recorded
in the language of the Court.
Shivaji Sampat Jagtap vs. Rajan Hiralal Arora the Hon’ble Bombay High Co
urt observed that, “the succeeding Magistrate, however in a case, the
procedure contemplated under section 263 and 264 of the Code in particular
has not been followed, he need not hold a trial de novo”, and the view was
upheld in J.V.Baharuni vs. State of Gujarat 2015.[11]
14.6 Or refer this >

Types of Trial
Mainly, there are four types of trial:
 Warrant Case- A warrant case associates itself to the case where the
crimes punishable with death, imprisonment for life or imprisonment
for a term exceeding two years are considered. Trial of warrant cases
are further classified into two more types namely:
o Cases instituted by a police report- A police report is basically
a report which Magistrate receives from a police officer under
Sec. 173. The police should send their report as soon as they
complete the investigation and the accused appears in front of
a Magistrate before starting the trial.
o Cases established other than a police report- Here, no kind
police report or investigation is required. The Magistrate
directly receives a complaint which is filed before him.
The sections from 225-237 of the Criminal Procedure Code basically deals with
the warrant cases by a Court of Session.
In the case of Narotamdas L. Shah v. Pathak Nathalal Sukhram And Anr., the

accused was held liable for defamation to which the witnesses were cross
examined and the Magistrate was of the view that the case should be
transferred while the accused demanded a re-hearing of the witnesses to which
the Magistrate said that the accused can only have this right when the case is in
trial and the case here was at the stage of enquiry only. The judge of the
Sessions Court was of the view that setting aside of the demand made by the
accused was wrong. The Gujarat High Court in this case held that trial in
warrant cases starts when the accused has been presented before the
Magistrate and thus quashing the order of the Magistrate.
 Sessions case- These are the cases where the offences subjected to
punishment by law is death, life imprisonment for a term more than
seven years, in such cases trial has to be dealt in a Sessions court after
the case has already been forwarded by a Magistrate to the Court or
after the commission of the crime.
Sections as mentioned in the CrPC starting from 238-250 handles the warrant
cases by Magistrates.
As decided in case of the Inspector of Police vs R. Jeeva Jothi And Ors., the

Magistrate showed some irregularities while conducting an enquiry of a case
after a final report was submitted by the inspector of police to him. As
mentioned in the CrPC, that when a Magistrate accepts a police report u/s
190(b), the Magistrate should take cognizance of that particular offence also.
Under section 209, a Magistrate when has noted that the case can be exercised
only in the Court of Sessions, it is compulsory for him that the case should be
passed on to the correct authorities who have proper jurisdiction over the case
after considering the procedure and formalities as mentioned under section 207
and 208. In the present case, the Magistrate considered all the materials and
documents related to the case and discharged the accused for the offences
mentioned under section 307 and 450 of IPC, which a Magistrate is not allowed
to do so and carries no power for the same. And after the deletion, the
Magistrate took the case into his file and started a trial which is clearly
prohibited under the law.
The Madras High Court in this case questioned the competency of the
Magistrate and also stated that the decisions taken and the procedure adopted
by the Magistrate were unlawful and wrong in nature and held that without
further delaying the case, it should be sent to the Court of Sessions with
immediate effect.
 Summons cases- These are the cases where those crimes where the
punishment for the offence is less than two years falls under the
category of the summons cases, further in these cases there is no
requirement of framing the charges. The Court upon finding these
cases issues a ‘notice’ as a material for the accusation and then sends
it to the accused. If there is any kind of possibility that the charges in
summons cases are such that they might be converted into warrant
case in the eyes of the Magistrate for serving the justice.
In the case of Gulabjeet Singh & Ors vs Ravel Singh, the issue was that whether
Section 258 can apply to the proceedings started under Section 138 of the
Negotiable Instruments Act[vii]? Section 258 simply states the proceedings can
only be stopped when the cases are filed other than a complaint, but when the
prosecution has already established by the State, then this section would not be
applicable and further elaborated that in such cases where a private party has
filed a complaint then Sec. 258 wouldn’t be applicable. The petition was
dismissed by the High Court of Himachal Pradesh.
 Summary cases- Basically, summary trials are those kinds of trials

where speedy justice has to be given which means those cases which
are to be disposed of speedily and the process of these cases is quite
simplified. One thing which is important to not here is that only small
offences are taken as a part of the summary cases, cases which are
complicated in nature and are quite big are reserved for summons or
warrant trials. With this type of trials, one can easily point out the
concept of ‘justice delayed is justice denied’. A very important
procedural part associated to these kinds of trials are that in summary
trials only proceedings are recorded and as such no big part of
proceedings are made. In summary trials the components related to
evidences and the disposition are simply recorded in a brief manner
while in regular trials, the evidences and all the substances related to
the cases are carefully considered.[viii]
Click Above
Procedure where accused in warrant cases are to be produced before the Magistrate
In warrant cases triable by the Magistrates, if the Magistrate does not find any
ground to hold the accused as liable, then the Magistrate can discharge the
accused but he has to provide reasons for the same. But when the Magistrate
finds some reasons to believe that there are some points related to the case
with which he can proceed further with the case, the Magistrate then further
proceeds under section 240 CrPC with the case by framing the charges against
the accused and under section 240(2) the charges which are put against the
accused shall be read to the accused and then he should be asked whether he
claims to be tried for the offence of pleads guilty for the same, and if the
accused claims to be tried then he shall be called upon to produce witnesses if
there are any.
Procedure of Court of Session
A Court of Session cannot directly take cognizance of the offence which is

triable under their jurisdiction. The procedure for a trial before Court of Sessions
is divided into many parts:
1. Section 225: The very first step of the process is to conduct a trial by a
Public Prosecutor.
2. After the first step, under section 226 the prosecutor opens his/her
case by presenting their opening statements and also explains the
charges of the offence against the accused.
3. After listening to the statements made by the accused as well as the
prosecution and after taking a note of the documents and records
related to the case, if the judge thinks that the whole components were
not enough to proceed against the accused, the judge under section
227 discharges the accused.
4. If the judge thinks that the documents, records and the statements of
both the parties were adequate enough to lay down the grounds for
further proceedings against the accused, the judge frames a charge
under section 228. Now, here two concepts come into the picture that
is the jurisdiction of the Court, if the case is not triable by the Court of
Session, then the judge might transfer the case to the higher authority
i.e. the Chief Judicial Magistrate or any other Magistrate of the first
class, and if the Court has the jurisdiction over the case, then the
judge shall proceed by framing the charges against the accused.
5. If the accused has pleaded guilty for the offence committed by him,
then the judge shall record and on his own judgement may convict the
accused.
6. The judge fixes a date if the accused has refused to plea for the
examination of the witnesses associated with the case.
7. After the date has been fixed, on that date the prosecution can be
asked by the judge for the evidences which require their in-support. At
this step, the cross-examination of the witnesses can also take place
depending upon the judge’s discretion. This whole step is mentioned in
the Section 231.
8. Section 232 of the code talks about the acquittal of the accused, if the
examination of the accused, statements made by the prosecution as
well as the defence fails to prove the charges against the accused.
9. If the accused is not acquitted, then under section 233 he may be
called and might also be required to bring evidences in his favour.
10. Section 234 and 235 explains the part of arguments and deciding
that whether the accused should be held liable or be released
respectively.
Fair trial: What is it and how does it have a vital role in the criminal system?
When one talks about justice delivering system of the nation, one question or
rather I’d like to say a mockery is made up of the justice system that is about
the lengthy and tedious process which quite often leads to the injustice to the
victims. The most famous case which comes into our mind when we talk about
the justice delayed is that of the Nirbhaya case, the incident happened in 2012
and now in the year 2020, the accused were hanged to death.
So, the question arises that what is a fair trial? Has it anything related to the
long time which a case takes to settle or whether the accused when in custody
is provided with his rights and the list of question doesn’t end.
The Indian Constitution has given its citizens a fundamental right which is Right
to free legal aid as prescribed in the Article 22(1). Not only the constitution, but
also the CrPC has talked about it in the Section 304. Section 304 is ‘Legal aid to
accused at State expenses in certain cases.’ Section 304 in simple language
basically provides aid to the accused, Sub-section (1) of this section describes
that whenever the accused is unable to represent himself by a pleader, the
Court shall appoint a pleader to represent the accused and the expenses related
to it will be borne by the State. Sub-section (2) of the section is basically the
procedural part of appointing the pleader to the accused, the mode of
appointing, the facilities, etc.
In a decided case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was

held that the rules as well the regulations as mentioned in the legal system of
India has provided elaborate arrangements to safeguard the rights of the
accused with a view to preserving his (accused) dignity as a human being and
giving him the advantage of a free, fair and impartial course.
Various concepts, complexions and theories are associated to the principle of

fair trial. Fair trial not only means that the justice should be delivered as soon
as possible, it also states as in the case of Zahira Habibullah Sheikh & Anr vs
State Of Gujarat[ix], that the principle of fair trial represents that the justice has
been done without any biases, a trial has been taken in front of an unprejudiced
judge and the persons related to the case were given fair opportunities to put
their point forward in the case. It is not necessary that in cases where the
society has questioned the justice system, the accused must always be accused
of the charges, a true and a fair justice would be that where if the accused was
not at a fault be released of charges and justice be provided to him/her.
There always lies a conflict of interest between the accused and the society,
however the judge in such situations should always apply his own rationale in
the case and decide accordingly. The concept of fair trial is a very wide and a
subjective concept and cannot be restricted to the various laws and rulings
mentioned in the legal system, every person has a right to fair trial which
changes day by day and the Courts have also increased the dimensions related
to the concept of fair trial.[x]
Conclusion
So, to sum up this article has covered the carious vital aspects related to the
concept of ‘trial’ which for a person related to law is quite essential to learn and
know. In India, the criminal system has seen a drastic change in the various
offences, punishments and as the time passes by more and more concepts
would be explored and will be definitely added to it.
15. Appeal, Reference and Revision
INTRODUCTION
The process of criminal justice has some serious consequences on an
individual’s life, primarily on the right to life and personal liberty. Each and
every institution built by humans is prone to fallibility, therefore, this applies to
the decisions rendered by courts as well. Resultantly, there should be specific
provisions in place so as to scrutinise the decisions of lower courts in order to
obviate the scope of miscarriage of justice. Realizing this aspect, there are
certain provisions which have been included in the criminal procedure on appeal
against a judgment or order of criminal courts. CrPC contains elaborate
provisions on appeals starting from Section 372 to Section 394.
Howbeit, there are certain cases in which there is no right to appeal. The
legislators bore this in mind and incorporated the concept of review procedure
called revision in the legislature so as to completely avoid any miscarriage of
justice for even those cases where the right of appeal has been barred by CrPC.
Section 397 to Section 405 include the powers of revision granted to the higher
courts, and the procedure to exercise these powers. It must be noted that these
powers are extensive as well as discretionary by their very nature.
In a general sense, appeal is a legal right conferred upon parties, however,

revision completely depends on the discretion of a criminal court, which means
that it is not a right as such. In criminal cases, at least one appeal is granted to
an accused by the legislature, whereas there is no such right in instances of
revision. In fact, the courts have many times discussed the difference between
an appeal and a revision. In the case of Hari Shankar vs Rao Ghari
Chowdhury[1], the Supreme Court held that “the distinction between an appeal
and a revision is a real one. A right of appeal carries with it a right of rehearing
on law as well as fact, unless the statute conferring the right of appeal limits the
rehearing in some way as. The power to hear a revision is generally given to a
superior Court so that it may satisfy itself that a particular case has been
decided according to law.”
APPEAL
The word “appeal” has not been defined in The Code of Criminal Procedure,
1973, (hereinafter CrPC), however, it can be described as the judicial
examination of a decision, given by a lower court, by a higher court. The
Merriam-Webster dictionary defines appeal as “a legal proceeding by which a
case is brought before a higher court for review of the decision of a lower
court”.[2]
It needs to be pointed out that except for the statutory provisions laid down by
CrPC or any other law which is in force, an appeal cannot lie from any judgment
or an order of a criminal court.[3] Thus, there is no vested right to appeal as
such as even the first appeal will be subjected to statutory limitations. The
justification behind this principle is that the courts which try a case are
competent enough with the presumption that the trial has been conducted
fairly. However, as per the proviso[4], the victim[5] has a right to appeal
against any order passed by the Court under special circumstances comprising
of a judgment of acquittal, conviction for lesser offence or inadequate
compensation.
In the case of Satya Pal Sigh vs State of Madhya Pradesh[6], the Hon’ble

Supreme Court held that the father of the deceased has a locus standi to
present an appeal to the High Court under the proviso of Section 372, as he
falls within the definition of “victim”, to question the correctness of judgment
and order of an acquittal of accused.
Generally, same sets of rules and procedures are employed to govern the
appeals in the Sessions Courts[7] and High Courts (highest court of appeal in a
state and enjoys more powers in matters where appeal is permissible). The
highest court of appeal in the country is the Supreme Court and hence, it enjoys
the most extensive discretionary and plenary powers in the cases of appeals. Its
powers are largely governed by the provisions laid down in CrPC, Indian
Constitution, and the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction), 1970.
The law provides a person who has been convicted of a crime to appeal to the
Supreme Court or the High Court or the Sessions Court as per the
circumstances.[8] In the case of Arun Kumar vs. State of Uttar Pradesh[9], the
Honourable Supreme Court held that if the High Court found that the view taken
by the Sessions Judge to acquit the appellants was manifestly wrong, moreover,
it even led to miscarriage of justice, therefore, the High Court was correct in
setting aside this acquittal and convicting them.
The State Government has been empowered to direct the Public Prosecutor to
appeal against the sentence on the grounds of inadequacy to either the sessions
court or the High Court, however in only those cases where the trial for
conviction has not been held by the High Court.[10] This shows that this right
to appeal against sentences on the grounds of inadequacy has not been granted
to the victims or the complainants or any other person. Moreover, it is
mandatory for the Court to give the accused a reasonable opportunity to show
cause against any enhancement of the sentence in the interest of justice. The
accused has the right to plead for his acquittal or a reduction in the sentence
while showing cause.
Similarly, the District Magistrate, and the State Government have the powers to
direct the Public Prosecutor to present an appeal in case of an acquittal to Court
of Sessions, and the High Court, respectively, subject to certain conditions.
[11] A two-Judge bench of the Hon’ble Supreme Court held in the case of Satya
Pal Singh vs State of Madhya Pradesh[12] that the victim cannot file an appeal
against an order of acquittal without obtaining the leave of the High Court.
The accused has been given the right to appeal to the Supreme Court against
the judgment of the High Court if the High Court has reversed an order of his
acquittal on appeal by convicting him, thereby, sentencing him to imprisonment
for life or for ten years or more, or to death.[13] Understanding the relevance
of a criminal appeal being made to the Supreme Court, the same law has also
been laid down in Article 134(1) of the Indian Constitution under the appellate
jurisdiction of the Supreme Court. The Supreme Court (Enlargement of Criminal
Appellate Jurisdiction) Act, 1970, has also been passed by the legislature in
consonance with Article 134(2) of the Indian Constitution to confer additional
powers on the Supreme Court to entertain and hear appeals from the High
Court under certain conditions.
A similar right to appeal has been granted to one or all accused persons if more
than one persons have been convicted in a trial and such order has been passed
by the court.[14]
However, there are certain circumstances under which no appeal shall lie. These
provisions have been laid down under Section 265G[15], Section 375[16] and
Section 376[17] of the CrPC.
As to the finality of the judgments and orders passed on appeal, CrPC makes
them final except in some cases.[18] This shows how paramount importance is
given to appeals.
REVISION
The word “revision” has not been defined in CrPC, however, as per Section 397
of CrPC, the High Court or any Sessions Judge have been empowered to call for
and examine the records of any proceeding satisfy oneself:
1. as to the correctness, legality, or propriety of any finding, sentence or

order, whether recorded or passed, and
2. as to the regularity of any proceedings of an inferior court.
Moreover, they have the powers to direct the execution of any sentence or an
order to be suspended. Not just this, but to even direct to release the accused
on bail or on his own bond if the accused is in confinement. They may even
order an inquiry subject to certain limitations.[19] It is clearly evident that the
appellant courts have been granted such powers so as to obviate any failure of
justice.
The Honourable Supreme Court of India, in the context of this provision, held in
the case of Amit Kapoor vs Ramesh Chander & Anr[20] that “the revisional
jurisdiction can be invoked where the decisions under challenge are grossly
erroneous, there is no compliance with the provisions of law, the finding
recorded is based on no evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely.” The same Court, further
explaining this provision, held in the case of State Of Rajasthan vs Fatehkaran
Mehdu[21] that “the object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has crept in the proceeding.”
The High Court has the power to take up a revision petition on its own motion
i.e. suo moto or on the petition by an aggrieved party or any other party. The
Allahabad High Court held in the case of Faruk @ Gaffar vs State Of U.P.
[22] that “whenever the matter is brought to the notice of the Court and the
Court is satisfied that in the facts and circumstances of the case, a case is made
out for exercising the revisional powers suo motu, it can always do so in the
interest of justice.”
There are certain statutory limitations that have been imposed on the High
Court for exercising its revisional powers as per Section 401 of CrPC, however
the only statutory requirement to exercise this power is that the records of the
proceedings are presented before it, after which it is solely the discretion of the
Court:
1. An accused is to be given due opportunity to hear him and on order

cannot be passed unless this is followed.
2. In instances where a person has forwarded a revisional application
assuming that an appeal did not lie in such a case, the High Court has
to treat such application as an appeal in the interests of justice.
3. An application of revision cannot be proceeded with if it has been filed
by a party where the party could have appealed but did not go for it.
The High Court, as well as the Sessions Court, may call for record of any
proceeding of any inferior criminal Court situated within its jurisdiction for the
purpose of satisfying itself as to the correctness, legality of propriety of any
finding, sentence, etc. Thus, the Sessions Judge could examine the question in
relation to the inadequacy of sentence in view of the powers conferred on him
by Section 397(1) of CrPC.[23]
The difference between the powers of the High Court and the Sessions Court
being that the Sessions Judge can only exercise revisional powers which he has
called for by himself, whereas the High Court has the power to take up a
revisional matter by itself or when it is brought to its knowledge. The powers of
a Sessions Court are the same as that of the High Court while dealing with
revisional cases. The Madras High Court in the case S. Balasubramaninan vs
The State Of Tamil Nadu[24] held that “a Sessions Judge can entertain an
application in revision against sentence and enhance the sentence in revision in
certain cases.” It has also been previously held by the Hon’ble Supreme Court in
the case Alamgir vs State of Bihar[25] that “in respect of enhancement of
sentence in revision the enhancement can be made only if the Court is satisfied
the sentence imposed by the trial Court is unduly lenient, or that in passing the
order of sentence, the trial court has manifestly failed to consider the relevant
facts”
CONCLUSION
It can thus be clearly seen that through the process of appeals, a person gets
an opportunity to get any legal, or factual error in an order or judgment
corrected. Nevertheless, appeals against any judgment, or order, or sentence of
a criminal court can only be preferred when it has been specifically provided in
the statutes. Thus, the right to appeal can only be exercised within the limits
laid down by CrPC or any other law which is in force and hence, this is a
constricted right. As far as the decision to appeal is considered, it is
discretionary except in cases when an accused person has been sentenced to
death by Sessions Court. Not only this, there are certain cases as well in which
appeal is not allowed at all, in fact the judgment, or order, or sentence
delivered by the criminal court will attain finality.
Moreover, there is no doubt that the revisional jurisdiction of the High Court is
quiet extensive. In fact, it can be said that no form of any judicial injustice can
permeate through this power. It has been held in various decisions that the
High Court is allowed to exercise it inherent powers when dealing with cases of
revision. These inherent powers apply to both substantive as well as procedural
matters. However, it cannot re-examine any evidence.
………………………………………………………………………………………………………………………………………………………………
Or refer this
For the same purpose, the Code of Civil procedure has introduced the concepts called
Review, Reference and Revision under Sections 113, 114 & 115 respectively. An
application for Review, Reference and Revision can be filed in the concerned courts as
provided by the Code and the proceedings under these applications do not deal with merits
(facts or evidence) of the case. They are solely based on technical grounds.
Reference under criminal procedure code?

Meaning of reference under Criminal Procedure Code.: – The reference is simply an
application made by the trial court to the High Court for the interpretation (explanation) of a
matter relating to an Act, Legislation, and Regulation.
As such, there will be an in-depth examination of the laws to ascertain whether there is a
misunderstanding or misapplication of the law or a re-evaluation of the facts of the case with
the application of the laws. Reference Chapter XXX specifically falls under Sections (395-
396) Criminal Procedure Code.
Section 395 of Criminal Procedure Code
A reference arises when a case is before a trial court and such a case includes a question
relating to the validity of any regulation, ordinance or act or any provision of the act, which is
necessary for the determination of a criminal case. Such an act, regulation or ordinance
may be inoperative or invalid but the Higher Court like Supreme Court or High Court has not
declared it.
As such, the lower court or trial court shall refer to the High Court for its cause or opinion.
Such opinions or reasons may form the basis of the court’s decision. In such cases, the
accused may be sent to the jail or released on the bail, as there is pending of revert of
opinion from the higher court.
Section 396: – Disposal of case according to the decision of the High Court
When the question has been so referred, the High court shall pass such an order that it
thinks fit and also can send a copy of such an order to the lower court which shall dispose
off the case comfortably to the said order. The high court may also direct the cost of such
reference which has to be paid.
Revision under criminal procedure code?

Meaning of revision under criminal procedure code: – A revision or modification is a rule that
is to correct or change a decision already made. This is two-way traffic. That is, a court
decision can be modified by a trial court or lower court or higher or Supreme Court. The
main objective of both sides is to modify, change, correct the decision already made by the
trial court.
The power to revise a decision by the High Court is discretionary and as such, it does not
order the High Court to revise every decision brought before it.
It is mentioned in the code to serve as a check and also to ensure that the High Court has
the power to see that justice is served in accordance with the rules and laws. The
amendment ensures that the Court does not abuse its powers or exceed its jurisdiction as
provided by the Code.
Section 362 of the Criminal Procedure Code

Provides that no court has the authority to review or change its final judgment or order or
decision, which is signed. The only exception is to correct clerical, arithmetic or grammatical
errors. Therefore, the power to review may vest in the superior court but the power to revise
rests with the lower court. The power of review, reference and revision cannot be exercised
in the case in which the appeal is pending in the High Court.
Revision is defined under Chapter XXX, Sections (397–402) of the Criminal

Procedure Code
1. Section 397: – The court has the power to call for the record of the proceedings of its court or any
inferior courts.
2. Section 398: – Upon examining the record of proceedings, the judge has the right to order an
inquiry into the decision of a case.
3. Sections (399 – 400): – The Sessions Judge has the power to revise any decision and may call
additional Sessions Judges to revise the decision.
4. Section 401: – The High Court has the power to modify cases before it or before the lower or
inferior courts.
5. Section 402: – The High Court is also empowered to transfer or withdraw the revision cases.
Difference between an Appeal, Reference and Revision
Appeal Reference Revision
It is defined under Chapter XXIX of It is defined under Chapter XXX of the It is defined under Chapter
the Criminal Procedure Code. Criminal Procedure Code. Criminal Procedure Code.
It is defined from section 372- 394 of It is defined from section 395-396 of the It is defined from section 3
the code. code. code.
An appeal is made to the higher court Reference is made to the higher court on the Revision is made to both h
on the points of the fact and laws. points of the law. court on the already adjudi
The Appeal begins on the The Reference occurs while the case is still The revision begins under
determination of the case. pending in the court. judgment or final order or
the court.
An appeal or petition is to be filed Reference is to consult the High Court on Revision is to review, chan
against the decision passed by the insolvency or invalid law, act, regulation or any grammatical, clerical o
lower court. ordinance related to the case at hand. error by a trial court or hig
In some cases, an appeal can be filed Reference is made by the trial court to the The revision can be initiate
with leave of the court by an High Court. court suo moto or the High
aggrieved person or accused.
Case law under Reference and Revision

1. Chandrappa vs. the State of Karnataka
The appellate court laid down the guiding principles for appeals against acquittals (proven
innocent).
The principles are as follows: –

 Where the fact of the case is clearly wrong and warrants a miscarriage of justice. In this instance,
an acquittal can be appealed. This doctrine was established in Bhagirath, 35 Cr LJ 1367.
 In an instance where the trial court failed to make a clear distinction between an indisputable
conclusion from the facts of the case. Example, Routhula 40 Cr LJ 458.
 Where the trial court overlooked the material evidence in the decision of the case which resulted
in wrong judgment or miscarriage of justice. Example, Dharnadas, A 1960 SC 734.
 When the facts of the case presented were wrongly dismissed as evidence by the trial court. An
example is Dhulaji, A1963G 234.
2. Hari Shankar vs. Rao Ghari Chowdhury
o In this case, the supreme court highlighted the difference between revision and appeal.
o The court held that difference between revision and appeal is real. The right of appeal comes
with a right of rehearing on laws as well as facts, unless the statute confers some limitations
on the right to appeal in some way.
o The power of revision is generally given to supreme court so that it may satisfy itself that the
judgement given in the particular case is in accordance to the laws.
3. Mohd. Afzal vs. Noor Nisha Begum on 5 February, 1997
o In this case, the court held that it is mandatory for the Sessions Judge and it is established law
that when the power of revision is exercised, the accused or the said person should be given
an opportunity of being heard.
4. Amit Kapoor vs. Ramesh Chander & Anr
o In this case, the court held that the jurisdiction conferred on the Court under section 397 may
be exercised to inquire into the legality, correctness or propriety of an order or judgment
passed by the lower court or any lower court. This section does not specifically use the words
“to prevent abuse of process of court and to secure justice” and the jurisdiction under this
section is very limited. Jurisdiction can be exercised where there is error, if there is no
compliance with the provisions of law or if the judgment is wrong in nature or judicial
discretion is exercised arbitrarily.
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Or refer this
Appeal–
In lay terms, Appeal is defined as an application of plea that is brought to a

higher court to review the decision of the lower court. Such application
comes as a legal proceeding and cannot be made to the court on the same
level as the trial court but to a higher court.
For instance, an aggrieved person can file an appeal against the decision of
the Magistrate Court to the High Court of the State, he or she can file an
appeal against the decision of a High Court to the Court of Appeal, and
likewise to the Supreme Court. The decision of the Supreme Court is final
and there is no appeal afterward.
Under the Code, sections 372 – 394 govern Appeal. Each of these sections

shall be considered accordingly. But before diving into it, it is pertinent to
note that an appeal in criminal cases may either be to overturn the decision of
the lower court or to affirm the decision and lower the sentence or conviction.
In this case, the aggrieved person has been convicted of an offense but the
lower court failed to impose the required sentence prescribed by the law for
such an offense. Thus, only a person affected or aggrieved by a decision of
the court may appeal against such decision.
Section 372 of the Criminal Procedure Code, 1973 stipulates that appeal

shall only lie from the lower court to the higher court if it is provided for in
the Code.
Section 374 provides from appeals from the court convictions. It stipulates

that appeal shall lie from the High Court to the Supreme Court for
convictions. An appeal also can lie from a Court of Sessions to the High
Court for a conviction that is more seven (7) years.
An appeal shall lie from the Magistrate Court to the Session in certain cases
provided under section 325.
Section 375 stipulates that there shall not be any appeal in any case where the
accused pleaded guilty and was convicted on that plea especially if the
conviction is by a High Court, Magistrate Court or Court of Sessions except
if the appeal bothers on the legality or extent of the conviction or sentence.
Section 376 adds that there shall be no appeal for petty cases. Petty cases are
offenses that are treated as simple offenses or misdemeanor. Instances of
petty cases are conviction by the High Court for a term of imprisonment not
exceeding six (6) months or a fine not exceeding 1000 rupees.
Also, a conviction by the Metropolitan Magistrate for a term of not more than
three (3) months or a fine of not more than 200 rupees; and, a conviction by
the Magistrate for a fine, not more than 100 – 200 rupees.
Section 377 covers appeal by the State government on the sentence or

conviction that bothers on the ground of inadequacy.
Section 378 covers appeal in cases of acquittal. In such instance, the cases

can only be entertained or heard with the leave of the court.
In Chandrappa vs the State of Karnataka, the Appellate court laid down

the guiding principles for appeals against acquittals. The principles are as
follows:
 Where the fact of the case is obviously wrong and has warranted a
miscarriage of justice. In this instance, an appeal can be held on the
acquittal. This principle was established in Bhagirath, 35 CR LJ
1367.
 In an instance where the trial court failed to draw a clear distinction
between an unquestionable inference from the facts of the case.
Example, Raothula 40 CR LJ 458.
 Where the trial court overlooked important evidence in adjudicating
the case which results in a wrong decision or a miscarriage of justice.
Example, Dharnadas, A1960 SC 734.
 When the facts of the case tendered were erroneously rejected as
evidence by the trial court. An instance is Dhulaji, A1963G 234.
Section 379 provides for an appeal against the sentence or conviction of the
High Court in cases such as:
 A life imprisonment
 An imprisonment for ten (10) years or more
 A death sentence
In such instances, an appeal shall lie directly to the Supreme Court.
Other sections pertaining to Appeal not discussed are the stipulations and
provisions of the procedures and timeline for appeal by an aggrieved person
to various courts.
Reference-
Reference in lay terms is a consultation of various sources of information

from the trial court. Reference is simply an application made by the trial
court to a higher court for the explanation of an Act, Legislation, and
Regulation pertaining to the case at hand.
As such, there will be a thorough examination of the Laws to find out if there
is a misunderstanding or a misapplication or a reevaluation of the facts of the
case in tandem with the application of the law. Reference is covered
under Chapter XXX particularly sections 395 – 396 of the Criminal
Procedure Code.
Section 395 defines a Reference as where there is a case before a trial court

and such case involves a question pertaining to the validity of a Regulation,
Ordinance or Act or any provisions of the Regulations, Ordinance or Act,
which is necessary for the determination of the criminal case. Such Act,
Regulations or Ordinance may be inoperative or invalid but a higher court
such as the Supreme Court or the High Court has not declared it so.
As such, the lower court or the trial court will refer to the higher court for its
reason or opinion. Such opinion or reason may form the basis of the Court’s
decision. In such instance, the accused may be committed to prison or set on
bail pending the return of the reason or opinion by the higher court.
Section 396 of the Criminal Procedure Code covers for the party that may
bear the cost when the reason or opinion sought for on point of law is
returned back to the trial court. Also, it stipulates on how the pending case is
determined subject to the return of such opinion or reason by the trial court.
Revision-
Revision is simple terms is to correct or alter a decision already made. It is a

two-way traffic. That is, a decision of the court can be revised by the trial or
lower court or by the higher or supreme court. The main aim of both sides is
to revise, alter, correct, review the decision already made by the trial court.
The power to revise a decision by the higher court is discretionary and as

such, it does not confer or impose on the higher court an order to revise every
decision brought before it. In the case of Pranab Kumar v. the State of WB,
the Supreme Court was of the view that revision powers are not a conferred
right on the litigants.
It is put in the code to serve as a check and also to ensure that the High Court
has the power to see that justice is served in accordance with the rules and
laws. Revision ensures that the court does not abuse its powers or exceed its
jurisdiction provided for by the Code.
For instance, section 362 of the Criminal Procedure Code provides that no

court has the right to review or alter its final judgment or final order or final
decision once it has been signed. The only exception is to correct a clerical,
arithmetic or grammatical error.
Therefore, the power to review may vest in the superior court but the power
to revise rests on the lower court. The power to review or revised cannot be
exercised when there is a pending appeal on the case in a higher court.
Revision is covered under Chapter XXX, sections 397 – 402 of the Code.

The Sections provides as follows:
Section 397 – the Court has the power to call for the record of proceedings of
its court or any inferior courts.
Section 398 – Upon examining the record of proceedings, the Judge has the
right to order for an inquiry into the decision of a case.
Sections 399 – 400 – the Session Judge have the power to revise a decision
and he or she can call additional session judges for the revision of the
decision.
Section 401 – the High Court has the power to revise the cases before it or
before the inferior or lower courts.
Section 402 – the High Court also has the power to transfer or withdraw the
revision cases before it.
16. MAINTENANCE OF WIFE, CHILD, PARENT UNDER THE CRIMINAL

PROCEDURE CODE
Maintenance means giving necessary supplies to a person for survival. It

includes shelter, food, and clothing, and every aspect of human life, which is
essential for survival and existence.
Section 125 of the Criminal Procedure Code, 1973, provides maintenance for
the wife, children, and parents.
Section 125 of CrPC is secular in nature. It does not apply to any particular
religion or sect but to all individuals equally irrespective of their religion.
Why There Is The Provision Of Maintenance In

CrPC?
It is a well-known fact that provisions relating to maintenance are provided in
personal laws as well. The Hindu Adoption and Maintenance Act, 1956, the
Hindu Marriage Act, 1955, and others provide provision for maintenance.
Then what was the need to add it in CrPC? This question always remains a
doubt in the mind of students.
The purpose of law relating to maintenance is given under the Criminal

Procedure Code, and not the Civil Procedure Code. This is to make the
proceedings more strict. The object was to remove destitution (poverty).
Order For Maintenance

A Magistrate of first-class may pass an order for maintenance to a person to
give a monthly allowance to his wife or child or parents.
The amount for the allowance is not fixed. It may be any sum. The Magistrate,
after considering the family status and conditions, orders for maintenance to
such person.
The order for maintenance is given when the person refuses or denies to
maintain his dependants like wife, children, or parents.
The dependants who are liable to be maintained by a person are:
1. Wife
2. Minor Child
3. Major Child
4. Parents
Maintenance to Wife
1. Wife of a person who is not able to maintain herself.
2. The term wife also includes a divorced wife who has not re-married.
3. If the wife is earning and earns sufficiently, then she can not claim
maintenance.
4. A wife shall not be entitled to maintenance from her husband if she lives in
adultery or refuses to reside (live) with her husband, or if she is living
separately with the mutual consent of both of them.
5. If a relationship is in the nature of marriage and essential characteristics of
marriage are found out, then a woman in a live-in relationship can also claim
maintenance.
6. If in case the wife surrenders her right of maintenance, the Magistrate shall
cancel the order of maintenance from the date of surrender.
Sanju vs. the State of Bihar
The court, in this case, said that even a judicially separated wife is entitled to
maintenance.
Kalyan Dey Chaudhary vs. Rita Day, 2017 SC
The Supreme Court, in this case, said that the quantum of maintenance is

not pre-fixed but shall be decided as per the status of the parties. It shall
always be decided upon the basis of facts and circumstances around. It can
never be too excessive nor too restricted. The order for maintenance must
always be justifiable for both parties.
Shailja vs. Khobbanna, 2018 SC
In this case, the court said that a wife capable of earning and a wife
actually earning are two different things. They can’t be put under the same
frame. The earnings of women must be voluntarily earning and not be out of
force.
If the survival of a wife is on begging or doing material work, it does not mean
that she is capable to maintain herself. The job of a wife must be such, which
in turn can satisfy the needs of the wife for sustenance.
But the court also needs to do the scrutiny of such circumstances where the
wife deliberately stops working or leaves work in order to seek maintenance
from the husband. In such a case, maintenance shall not be allowed by the
court to a wife.
Maintenance to Minor
1. A person is a minor when he is under eighteen years of age.
2. A person is liable to maintain his minor children, whether legitimate or

illegitimate.
3. The concurrent responsibility of the father still persists when the husband of
a minor girl is also minor and does not have sufficient means to maintain her.
Maintenance to Major Child
1. A person is liable to maintain his major daughter not being married.
2. After marriage, the husband is the guardian of a wife. But till marriage, the
father is the guardian and caretaker of a major girl.
3. The father is liable for the maintenance of his major son only when he is
mentally or physically abnormal or in such a condition when he is unable to
maintain himself. For example, if he is paralyzed, then he is deemed to be
unable to maintain himself.
Maintenance to Parents
It is the liability and duty of a person to maintain his father or mother if they
are unable to maintain themselves. Maintenance and Welfare of Parents and
Senior Citizens Act, 2007 emphasizes upon the maintenance of old age
parents who because of any reason, are not capable of maintaining
themselves.
Interim Maintenance
A party claiming maintenance may also file an application for the interim
maintenance during the pendency of proceedings. If the Magistrate thinks fit
that the party must be allowed with interim maintenance, then it shall give
order to the party for the monthly allowance for the interim maintenance.
The application for interim maintenance shall be disposed within 60 days from
the date of service of notice of the application to such a person.
The interim maintenance shall be payable from the date of order or if the
Magistrate orders, be payable from the date of application.
Non-Compliance Of Maintenance Orders

If the person to whom an order for maintenance is issued fails to give
maintenance, then the court may issue a warrant against such person for the
imprisonment of one month. The provision for punishing a person does not
waive off the liability of a person to maintain. It is a method to compel and levy
the amount of maintenance from such a person.
Procedure For Maintenance Under Section 125

CrPC
The procedure for maintenance may be taken against any person:
1. Where such a person resides. or

2. Where he or his wife resides. or
3. Where he last resided (lived) with his wife or with the mother of the
illegitimate child.
If a person tries to avoid appearing in court, the Magistrate may hear the
case ex-parte. The order of ex-parte may be set aside if the person shows
good cause for not appearing in court. It can be set aside within three months
from the date of the ex-parte order.
Alteration In Maintenance Allowance
If the circumstances of parties change, then the amount for maintenance can’t
be the same. It needs to get altered. The change that has taken place shall be
proved in court, and the Magistrate on such proof can alter the amount. The
Magistrate may increase the amount or decrease the amount. It depends
upon what changes took place in the circumstances of parties.
For example, earlier, the wife was receiving a monthly allowance of

Rs.15,000, but now their child who lives with the wife needs to be admitted to
a school for studies. In such a situation, the amount of maintenance needs to
be altered.
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ALSO REFER
INTRODUCTION
In today’s legally advanced society, every human being has the right to enjoy his or her
rights purely on the grounds of being human which is provided by the rule of law. At the
very outset, the right of any human being is based on mankind’s increasing demand for
a civilised society. Despite the presence of many rights and laws to protect them, the
reality is far from this truth, thereare provisions but to avail the same one has to suffer
many hardships too .Women, children and elderly people are the most affected by this.
Though women, children and elderly people are considered to be most delicate and in
much need of protection, these are in fact in the ones whose rights are being
encroached everyday, everywhere in the world and their protection must be sought with
paramount importance. The notion of ‘maintenance’ in India is covered both under
Section 125 of the Code of Criminal Procedure, 1973 (Section 125) as well as the
personal laws. This idea further gets its roots from Article 15(3) reinforced by Article 39
of the Constitution of India, 1950 (the ‘Constitution’).
In Indian law, the term ‘maintenance’ includes an right to food, clothing and shelter,
being available to the wife, children and parents. It is a part of social justice and the
natural duty of a man to maintain his wife, children and parents, when they are unable
to maintain themselves. The phenomenon of maintenance is to prevent immorality and
destitution and ameliorate the weak economic condition of women and children.
OBJECT OF SECTION 125

The procedures under these sections are not punishing in nature. The motive isn’t to
rebuff an individual for disregard to keep up those whom he will undoubtedly keep up
however to forestall vagrancy by upholding obligation by method of synopsis strategy to
give an expedient solution for the individuals who are in trouble.
This is a common arrangement as it doesn’t make any differentiation between people

having a place with various religions or stations and it has no relationship with individual
laws of the gatherings. In Mohd Ahmed Khan v. Shah Bano Begum, the SC held that
that the provisions of section 125 applies to all .
The rights of a destitute wives or a minor claiming preservation on this chapter and the
treatments furnished are essentially civil right. The apex court defined section 125 of the
code of criminal procedure, 1973 as a measure of social justice and specially enacted to
protect women and children falls within the constitutional sweep of article 15(3) and
reinforced by article 39.
The primary target is to forestall vagrancy by method of technique to give a rapid

solution for the individuals who are in torment. The object of the provision being to
prevent vagrancy and destitution, it has been found by us that what is really required by
the wife is to maintaina way of life which is neither sumptuous nor penurious, yet is
unassumingly predictable with the status of the family.
PURPOSE OF SECTION 125

The purpose of enacting section 125 of the code is not recognized or created as a right
as such in favour of a wife. It is intended to ameliorate social problem which concerns
destitution or vagrancy. “The primary object of the section is to prevent starvation and
vagrancy of person and enable a discarded wife and a helpless child to get the much
needed and urgent relief in one or the other form that is convenient to them’’.
ENTITLED PERSONS WHO CAN CLAIM AND GET MAINTENANCE

Section 125 of Cr.P.C deals with order of maintenance of wives, children and parents.
Under The Cr.P.C., the following can claim and get maintenance.
1. Wife from her husband.
2. Legitimate or illegitimate minor child from his father.

3. His legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is by reason of any physical or mental abnormality or injury
unable to maintain itself.
4. His father or mother from his son or daughter.
ESSENTIAL CONDITION FOR INVOKING SECTION 125

The right of a wife for maintenance is not an absolute right under the section 125
Cr.P.C, the very same is circumscribed by the fact that she is unable tokeep up herself
and further the spouse having adequate methods ignored or wouldn’t look after her.
No doubt, there is a clear distinction between the locus standing or competence to file a
petition for maintenance under section 125 of the code by any of the person illustrated
in the section and there being entitled on merits to particular amounts of maintenance
there under.
However the premise for both is essentially the existence or otherwise of their separate
income or means of support besides other factors stipulated under this section.
Legitimacy of the marriage with the end goal of outline continuing under segment 125
Cr.P.C is to be resolved based on the proof welcomed on record by the parties.
The standard of proof in the marriage in such proceedings is not as strict as is required
in the trial of offence under section 494 IPC. If the claimant in the proceeding under
section 125 of the code succeed in showing that she and the respondent have lived
together as husband and wife, the court can presume that they are legally wedded
spouses, and in such a situation, the party who denies the marital status can revert the
presumption.
That the contention is not proved by leading necessary evidence. Once it is admitted
that the marriage procedure was followed then it is not necessary to further probe into
whether the set procedure was complete as per the Hindu rights in. the proceeding
under section 125Crpc.
WIFE
A woman is considered as the “wife” only if her marriage with the man is legally valid.
The Kerala High court in- MambekkattuNANU v. VAS- ANTHA observed that it only on
the strength of extended definition of the expression “wife” occurring in explanation (b)
to section 125 of the code, that she is entitled to claim maintenance as a divorced wife.
In the case of CHANMU- NIYAV.VIRENDRA SINGH, the Supreme court has defined
“wife” and includes even those cases where a man and woman have been living
together as husband and wife for a reasonably long period of time, strict proof of
marriage should not be the precondition of maintenance under section 125 of Cr. P.C.
In the case of SIRAJ- MOHMEDKHAN JANMO- HAMADKHAN V. HAFI- ZUNNISA
YASINKHAN, the Supreme Court held that maintenance can be allowed to the wife
when her husband is impotent.
A wife can guarantee and get upkeep from her better half in the accompanying
conditions.
1. If she is divorced by her husband.

2. If she has obtained divorce from her husband.
3. If she has not remarried.
4. If she is not able to look after herself.
A wife cannot claim and get maintenance from her husband in the following condi-
tions.
1. She is living in adultery.

2. She refuses to live with her husband without any valid reasons.
3. She is living separately from her husband by mutual consent.
LIVE-IN RELATIONSHIP
Domestic relationship in the nature of marriage.
I n t h e c a s e of D. VELUSWAMY V. D.PATCHAIAMMAL, the Supreme Court

observed that for a relationship in the nature of marriage-
a. The couple must hold themselves out to society as being akin to spouses.
b. They should be of legal age to marry.
 They must be otherwise qualified to enter into legal marriage including being
unmarried.
 They must have lived together as per their will and held themselves out to the
world as being a kin to spouses for a significant period of time. Further Supreme
Court ruled that not all Live-In- Relationship will amount to a relationship in the
nature of marriage to get the benefit the conditions mentioned by the court must
be satisfied and this has to be proved by evidences.
LEGITIMATE OR ILLEGITIMATE MINOR CHILD
Male and female kids, independent of whether they are brought into the world inside or
outside the legitimately substantial marriage of the dad and mother can guarantee
Maintenance.
SON
‘Minor’ means a person who, under the provision of section 3 of the Indian Majority Act
1875 is deemed not to attained his majority I.E above the age of 18 years. Minor son
(legitimate or illegitimate is entitled to get maintenance under section125 of Cr.P.C.
DAUGHTER
If minor daughter (legitimate or Illegitimate ) is unmarried, then she is entitled to get
maintenance from her father and if she is married, then she is also entitled to get
maintenance from her father but the Magistrate has to be satisfied that her husband has
not essential and sufficient means for the maintenance of his minor wife.
In the case of SHAHBUDDIN V. STATE OF UP a minor daughter attaining majority

during pendency of the application for maintenance was held entitled to maintenance up
to the date of majority.
MOTHER AND FATHER

Both the mother and the dad, regardless of whether normal or assenting, can guarantee
upkeep from any at least one of their youngsters. Girls are additionally obligated to pay
support to their mom and father. A stage mother can guarantee support just in the event
that she is widow and doesn’t have characteristic conceived girls or children.
In the case of PANDURANG BHAURAO PABHADE V. BABURAO DABHADE, Bombay

High court has held that the father or mother can claim maintenance under section
125(1)(d) if he or she is unable to maintain himself or herself. But it is also important
that if parents claim maintenance to their children, children must have sufficient mean to
maintain their parents and yet neglects or refuse to maintain the father or mother.
SECTION 126 PROCEDURE: PERSONAL PRESENCE

Section 126(2) of the code provides as to under what circumstances the evidence can
be recorded when the non-applicant is not personally present. With the permission of
the court, the personal presence (including recording of evidence) of the court will
proceed in the presence of with in sub section (2) of section 126 of the code shows to
some extent that the non-applicant is bound to remain present on every hearing of the
case (unless his presence is dispensed with) and it is this which may go to show that
the proceeding under section 125 of the code to some extent, are of quasi-judicial
nature.
It has been held in ARUN KUMAR V. CHANDAN BAI, that if the non-applicant is
absent, but his counsel is present, evidence can be recorded in the presence of the
counsel. Such recording of the evidence is quite legal.
JURISDICTION
In a proceeding under section 126 of the code of Court has jurisdiction to entertain the
application where the applicant resides. The question regarding the jurisdiction of the
Court to entertain the petition of the wife and daughter for maintenance in KUMUTHAN
V. KAMNAPPAZ it was held that the husband was living within the jurisdiction of the
court Trichy, the court at Trichy had jurisdiction to entertain the maintenance petition.
The Supreme Court observed that the court below have failed to take note of the
provisions contained 126 of Cr.P.C. Under the said section it is permissible for
proceeding under section 125 to be taken against a person in any district:
a. Where he is, or
b. Where he or his wife resides, or
c. Where he last resided with his wife or mother of an illegitimate child.
: Proof to be taken within the sight of an individual against whom support is to be
requested.
: If an individual is readily keeping away from summons, at that point ex-parte proof is
taken all things considered.
Also, recently Hon’ble Supreme Court in the case of Rajnesh V. Neha, 2020 SCC
Online SC 903 The bench of Justice Indu Malhotra and R. Subhash Reddy, JJ has
framed guidelines on the issue of maintenance of wife, covering overlapping jurisdiction
under different enactments for payment of maintenance, payment of Interim
Maintenance, the criteria for determining the quantum of maintenance, the date from
which maintenance is to be awarded, and enforcement of orders of maintenance.
The directions came in a case which revealed that the application for interim
maintenance under Section 125 Cr.P.C. has remained pending before the Courts for
seven years now, and there have been difficulties encountered in the enforcement of
orders passed by the Courts, as the wife was constrained to move successive
applications for enforcement from time to time.
WILFUL NEGLECT OF COURT: EX PARTE ORDER CAN BE PASSED

Under section 126 of the code the Magistrate is empowered to proceed to hear and
determine the application under section 125 of the code, ex parte if he is satisfied that
the person against whom the maintenance order is proposed to be made is wilfully
avoiding service count of change in circumstance of pay, and consequently paying or
receiving maintenance and party is entitled to move an application for alteration of the
order of maintenance where there is such a change of circumstances.
However, rise in the cost of living is certainly a change in circumstances and changes
must be in circumstances themselves and not on proof already existing circumstances
themselves and not on proof of already existing circumstances on record.
CONCLUSION
It is apparent from the ongoing Judicial decisions that the Indian courts have been
dynamically liberal in choosing cases relating to support.
The bone of conflict any- way is whether a mistress can get qualified for get upkeep
just from the factum of living with a wedded man, combined with the contest concerning
whether the bigamy is lawfully al- lowable. While it shows up from the choices went
under the individual laws that the equivalent might be conceiv- able, legal choices
relating to Section 125 keep on maintaining the view that upkeep can be asserted
uniquely by a legitimately married spouse.
It can be concluded that the need for protection for the rights of women and children
and elderly people must undergo a revolutionary transition if we desire to live in a safe
and secure world and seeking it should become one of our chief pursuits. Chapter 9 of
the Code of Criminal Procedure is essential for the protection of the rights of the
divorced wife and children and aged parents. It is made to protect them from unusual
livelihood.
Maintenance is the duty of everyone who has sufficient means for the same, and our
statues, as well as procedural laws, provides enough and clear cut measures that could
be opted by the aggrieved to get maintenance.
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ALSO REFER
Scope and objective of Proceedings

Scope and objectives of proceedings for maintenance of wives, children and
parents are the following:
 The proceedings are not punishable in nature. The main objective of

Chapter IX of Cr.PC is not to punish a person who is not maintaining
those whom he is bound to maintain.
 The main objective is to prevent homelessness by way of procedure to
provide a speedy remedy to those who are in pain.
 It does not make any distinction between persons belonging to
different religions or castes.
 It has no relation to the personal laws of parties.
Order for maintenance of wives, children and parents

Section 125 of Cr.PC deals with “Order of maintenance of wives, children and
parents”. In this Section, it is given the name of parties who are entitled to get
maintenance, essential ingredients to claim and get maintenance and order of
the first-class magistrate.
In the case of Mohd. Ahmed Khan v Shah Bano Begum, Supreme Court
delivered a judgement favouring maintenance given to an aggrieved divorced
Muslim woman.
Who can claim and get maintenance?

Section 125 of Cr.PC deals with “Order for maintenance of wives, children and
parents”. According to Section 125(1), the following persons can claim and get
maintenance:
 Wife from his husband,

 Legitimate or illegitimate minor child from his father,
 Legitimate or illegitimate minor child (physical or mental abnormality)
from his father, and
 Father or mother from his son or daughter.
Wife
In the case of Chanmuniya v Virendra Singh, Supreme Court has defined ‘Wife’
and it includes even those cases where a man and woman have been living
together as husband and wife for a reasonably long period of time. Strict proof
of marriage should not be a precondition of maintenance under Section 125 of
the Cr.PC.
In the case of Smt. Yamunabai Anantrao Adhav v Ranantrao Shivram Adhav,

the Supreme Court held that marriage of women in accordance with Hindu rites
with a man having a living spouse is completely nullity in the eye of law and she
is not entitled to benefit under Section 125 of the Cr.PC.
In the case of Sirajmohmedkhan Janmohamadkhan v Hafizunnisa Yasinkhan,

the Supreme Court held that maintenance can be allowed to the wife when her
husband is impotent.
A wife can claim and get maintenance from her husband in the following
conditions:
 She is divorced by her husband, or

 Obtained divorce from her husband, and
 She has not remarried, and
 She is not able to maintain herself.
Note: Muslim wife can also claim maintenance under Cr.PC though they have a
separate Act (Muslim Women Protection of rights on Marriage Act) for them.
A wife can not claim and get maintenance from her husband in the following
conditions:
 Wife living in adultery, or

 Refuses to live with husband without any valid reasons, or
 Living separately by mutual consent.
Legitimate or illegitimate minor child
Son
‘Minor’ means a person who, under the provisions of Section 3 of the Indian
Majority Act, 1875 is deemed not to have attained his majority i.e., above the
age of 18 years.
Minor Son (Legitimate or Illegitimate) is entitled to get maintenance under

Section 125 of Cr.PC.
Daughter
If Minor Daughter (Legitimate or Illegitimate) is unmarried, then she is entitled
to get maintenance from her father and if she is married, then she is also
entitled to get maintenance from his father but the magistrate has to be
satisfied that her husband has not essential and sufficient means for the
maintenance of his minor wife. In the case of Shahbuddin v State of UP, a minor
daughter attaining majority during the pendency of the application for
maintenance was held entitled to maintenance up to the date of majority.
Legitimate or illegitimate abnormal child who has attained
majority
If any major child (Legitimate or Illegitimate) is abnormal (mentally or
physically unfit), then the father of that child has to maintain him and he can
claim maintenance on this ground of abnormality.
Father or mother
 Natural father and mother can claim maintenance.
 Mother includes adoptive mother, she can claim maintenance from
adoptive son.
 Father can claim maintenance, it is a statutory obligation, this claim
cannot be defeated by pleading that the father failed to fulfil his
parental obligation.
 A childless stepmother can claim maintenance.
In the case of Pandurang Bhaurao Dabhade v Baburao Bhaurao Dabhade,
Bombay High Court has held that the father or mother can claim maintenance
under Section 125(1)(d) if he or she is unable to maintain himself or herself.
But it is also important that if parents claim maintenance to their children,
children must have sufficient means to maintain their parents and yet neglects
or refuses to maintain the father or mother.
Essential conditions for granting maintenance

There are some essential conditions which should be fulfilled for claiming and
granting maintenance:
1. Sufficient means for maintenance are available.

2. Neglect or refusal to maintain after the demand for maintenance.
3. The person claiming maintenance must be unable to maintain
himself/herself.
4. Quantum of maintenance depends on the standard of living.
Sufficient means to maintain the person
If any person has sufficient means for maintenance, then it is his duty to
maintain his wives, children and parents. If sufficient means are not available,
then it will be a perfect and valid defence for people who are legally bound for
maintenance of wife, children and parents.
Neglect or refusal to maintain

Any person neglects or refuses to maintain his wives, children and parents in
malafide intention or in any type of egoistic behaviour on the demand for
maintenance by them.
The person who claims maintenance must be unable to

maintain himself/herself
It is a very important condition for granting maintenance that a person who is
claiming maintenance must be unable to maintain himself/herself. For example-
If a wife is earning well, then she can not claim maintenance under this Section.
In the case of Abdulmunaf v Salima, it was held that the wife who is hale and
healthy and is sufficiently educated to earn for herself but refuses to earn from
own and claim maintenance from her husband will be entitled to claim
maintenance but that her refusal to earn under the circumstances would
disentitle her to get complete amount of maintenance.
Special provision for maintenance of minor married girl

If the husband of a minor daughter does not have sufficient means to maintain
her, then it is the duty of her father to give maintenance. In these
circumstances, married minor daughter is entitled to get maintenance from the
father. In the case of Alok Banerjee v Atoshi Banerjee, a person who is unable
to maintain themselves.
Quantum of maintenance
Quantum of maintenance means the amount of maintenance. Quantum of
maintenance depends on the standard of living. For example- If any issues
raised in a rich family, then demand for maintenance will be more as compared
to poor family according to their standard of living in a prior life.
In simple words, the Court should also make sure that whether maintenance
granted is justified according to the status of a family or not?
Jurisdiction of Magistrates to deal with

maintenance proceedings
According to Section 125(1)(d), If any person neglects or refuses to maintain
his wife, children or parents, then a Magistrate of the First Class can order such
person to make a monthly allowance for the maintenance of his wife, children or
parents, at such monthly rate as such Magistrate thinks fit, and to pay the same
to such person as the direction of magistrate.
If a minor female child is unmarried, then the magistrate can order to make
such allowance, until she attains her majority. In case a minor child is married
and the magistrate is satisfied that the husband of such minor female child is
not possessed of sufficient means, then the magistrate can order father of the
minor female child to make such an allowance for maintenance.
When a proceeding is pending regarding monthly allowance for maintenance,
the Magistrate can order such person to make a monthly allowance for the
interim maintenance of his wife, children or parents and the expenses of such
proceeding which the Magistrate considers reasonable.
An application for the monthly allowance for the interim maintenance and
expenses of proceeding should be disposed within sixty days from the date of
the notice of the application to such person.
According to Section 125(2), If a court order for such allowance for

maintenance or interim maintenance and expenses of the proceeding, then it
should be payable from the date of the order or if so ordered, then it shall be
payable from the date of application for maintenance and expenses of
proceedings.
According to Section 125(3), If any person fails to comply with the order
without sufficient cause, then Magistrate can order to issue a warrant for
levying the amount with fines. If the person again fails after the execution of
the warrant, then the punishment of imprisonment for a term which may extend
to one month or until payment of sooner made is awarded.
Procedure for maintenance

Section 126 of Cr.PC deals with “Procedure for maintenance”. This Section says
the following:
 Proceeding under Section 125 may be taken in the following district:
1. Where he is, or
2. Where he or his wife resides, or
3. Where he last resided with his wife or mother of an illegitimate child.
 Evidence to be taken in the presence of a person against whom

maintenance is to be ordered.
 If a person is wilfully avoiding summons, then ex-parte evidence is
taken in that case.
Alteration in allowance
Alteration in allowance means an order to increase, decrease or remove/cancel
the allowance which was ordered by the Magistrate under Section 125.
According to Section 127(1), if a magistrate ordered to give allowance for

maintenance under Section 125 according to the conditions of parties at that
time, but if the present conditions of parties have changed, then he can also
order to alter the allowance. For example-
1. Husband had a well-settled job and means for maintenance, on this

basis the Court has ordered him to maintain his wife and to allowance
under Section 125. But in the present condition, the husband has no
job and means for maintenance. Then, the Court can alter the
allowance and can reduce the amount of allowance.
2. If a wife was not having any job or she was unable to maintain herself
and she got the order of allowance under Section 125. But after some
months, she is well settled and she has the means to maintain herself.
In this case, the Court can order to remove or cancel allowance.
According to Section 127(2), Magistrate shall cancel or revoke any order given
under Section 125 by him, if it appears that it should be cancelled in
consequences of any decision of the competent Civil Court. For example- If
Magistrate has ordered to give allowance to wife after divorce but Civil Court
has ordered to live together. Then, Magistrate has to revoke his order which
was given under Section 125.
According to Section 127(3), where an order has been made in favour of women
under Section 125, then the magistrate can cancel the order in the following
case:
1. If a woman is remarried after divorce.

2. If a woman has taken allowance under any personal laws after divorce.
3. If a woman has voluntary leave her right to maintenance.
According to Section 127(4), the Civil Court shall take into account the sum
which has been paid to such person as monthly allowance for maintenance and
interim maintenance under Section 125 at the time of making any decree for
the recovery of any maintenance or dowry.
Enforcement of order of maintenance

Section 128 deals with “Enforcement of order of maintenance”. According to this
Section, the following are the conditions for enforcement of the order of
maintenance:
 Copy of order under Section 125 is given to that person free of cost in
whose favour it is made. In case the order is in favour of children, then
the copy of the order will be given to the guardian of children.
 If any Magistrate has made an order under Section 125, then any
Magistrate of India can enforce this order where that person lives who
have to give maintenance.
 The Magistrate has to satisfy two conditions before enforcement of
order:
1. Identity of parties, and

2. Proof of non-payment of allowances.
Conclusion
Chapter IX of the Code of Criminal Procedure is essential for the protection of
the rights of the divorced wife, children and aged parents. It is made to protect
them from unusual livelihood. Maintenance is the duty of everyone who has
sufficient means for the same. In this chapter of Cr.PC, there are various
provisions given related to maintenance like who is entitled to maintenance,
essential conditions for granting maintenance, Procedure of maintenance,
Alteration of the previous order, Enforcement of order of maintenance etc.

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Code of Criminal Procedure

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CODE OF CRIMINAL PROCEDURE (Paper Code : BL-9001)

2. Important Definitions under the Code

2.2 . Bailable Offence and Non-bailable Offence

2.3 Cognizable Offence and Non-cognizable Offence

It is a non-bailable offence. It is a bailable offence.

 an oral or a written allegation;

2.8 Judicial Proceeding

2.10 Public Prosecutor

2.11 Summons and Warrant Cases

3. Classification of Offences Under the Code of Criminal Procedure, 1973

3.3 The distinction between Cognizable and non-cognizable Offences

4. Constitution of Criminal Courts and it’s Hierarchy

4.3 Power of courts to try offences

1. those under the Indian Penal Code; and

5. Power of the Court to pass sentences

5.2 Sentences which Magistrates may pass

5.3 Sentence of imprisonment in default of fine

6. Jurisdiction of the Criminal Courts in Inquiries

6.2 Jurisdiction of the Criminal Courts

6.2.1 Original Place of Inquiry and Trial

6.2.2 The jurisdiction in Specific Offenses

6.2.3 Jurisdiction when Offense Committed by Letters/Post

6.2.5 Jurisdiction for Offenses Jointly Triable

6.2.6 The jurisdiction in Other Cases

6.2.7 Jurisdiction when Offense Committed Outside India

 by a citizen of India, whether on the high seas or elsewhere

7. Arrest Under The Code Of Criminal Procedure, 1973

7.3 Types of Arrest: Two types of arrest

1. An arrest made in view of a warrant issued by a magistrate

7.4 Who can arrest?

7.5 Constitutionality of Section 107 and 151 of CrPC

7.6 Important cases

8. Rights of an arrested person in India

8.2 Grounds of Arrest: Right to be informed

Madhu Limaye Case is an example here.

The legal provisions for the same can be found in:

8.3 Right to Silence

The legal provisions for the same can be found in:

Art 20(2) of the Constitution of India

8.4 Right to be released on Bail

Case Law: Uday Mohanlal Acharya v. State of Maharashtra

Sections 50(2), 436, 437, 438 of CrPC

8.5 Right to be taken before Magistrate without delay

Case Law: State of Punjab v Ajaib Singh

The legal provisions for the same can be found in:

Sections 56,71,76 of CrPC

8.6 Rights regarding detention

This right has been created with a view-

Case Law: Gunupati Keshavram v. Nafisul Hasan

The legal provisions for the same can be found in:

8.7 Rights at trial

 Rattiaram v. Territory of Madhya Pradesh AIR 2012 SC 1485.

The legal provisions for the same can be found in:

Article 14 and 21 of Constitution of India

8.8 Right to consult a legal practitioner

Case Law: Janardhan Reddy v State of Hyderabad is an example.

The legal provisions for the same can be found in:

 Hussainara Khatoon vs State of Bihar

 M.H.Hoskote v State of Mahashtra

The legal provisions for the same can be found in:

Section 304 CrPC, Articles 21, 39(A) of Constitution of India

8.10 Right to be examined by a medical Practitioner

Case Law: Anil Lohande v State of Maharashtra