Seat Number (Number) - 222567

Seat Number (words) – Two Lakh Twenty Thousand Five Hundred

and Sixty Seven
Semester- V
Name of the Course –Law of Crimes II- Code of Criminal
Procedure-I

Q1.
i) No, in the present case when the Duty officer took custody
of the accused it can be termed as custody as the
intention of committing the arrest will be known by the
later consequnes of the act and later we see that the
accused was relased without bail and it is nceecesray that
he should be relased on bail to prove the intention of
arrest. after recording the information in general diary he
intended to make the arrest as the information also
pertained to a cognizable case and moreover the duty
officer could have take the accused into custody for
interrogating him , he did not take him into custody for
actually arresting him. Following are the essentials to
term it an arrest:
- There was an intent to arrest under authority of law
- It was accompanied by a seizure and the person was
detained in a matter known to law
- It was understood by the person who was being
arrested.
- The accused was being taken into custody of other

ii) Magistrate cannot exercise power under section 73 suo

motto as by the bear reading of the section it is evident
that it is necessary that the accused should be evading
arrest or should be an escaped convict or should be an
proclaimed offender and in the case at hand the accused
neither evaded the arrest nor is an escaped convict and
neither the charges against him have been proved even
after which he is running away so does not come under
proclaimed offender as well, moreover the magistrate
cannot take such action before the police conducting any
sort of investigation.
The Non Baliable Warrant warrant issued by the
magistrate before the submission of the charge-sheet by
the police is valid as the Supreme Court held in CBI vs
Dawood Ibrahim Kaskar & Ors., 1997 that Magistrate can
 issue warrant u/s 73 during investigation in cognizable
offence and the purpose of such issuance will be to aid in
the investigation process and during further investigation
magistrate can exercise power under Section 167(2) if it
deems fit.

iii) If the accused has been arrested under Section 73

through non bailable warrant than the police has no
power to further interrogate the accused as now he’ll be
produced before the magistrate under section 73 (2). The
investigation conducted by the police post arrest will be
legal as the accused maybe arrested first as in case of
cognizable cases keeping in view that he can commit any
other crime if left out or tamper with any evidence and
then investigation can be carried on but Section 167 (2)
and section 57 have to be kept in mind which say that a
maximum of ninety days the accused can be kept under
arrest if the case pertains to life imprisonment or death as
in this case. And that no person can be kept arrested for
more than 24 hours before producing him before a
magistrate. In CBI vs Dawood Ibrahim also the accused
was first arrested andthan the investigation that took
place was held to be legal.

iv) No, a private person cannot take the accused into custody
if the offence has not taken place in his presence even
though there may be probability of the accused running
away. Sec 43 clearly laws down that a private person can
arrest when a non bailable and cognizable offence takes
place in his presence and then he shouldn’t cause any
delay in taking the accused to a nearby police officer
because any person without witnessing any committal
offence annot arrest anyone as that would be unlawful.
The Arrest to the extent of taking the accused into
custody is valid which means that kaal Devta could not
mearly arrest the accused on the wordings of her sister
and the arrest would therefore be illegal and
consequential arrest by Duty officer will be detention and
not arrest but looking at provisions of Sec 41 it can be
termed as arrest.

Q2.
 i) No, anticipatory bail under section 438 of the code cannot
be granted to an absconder as the accused in this case
was not was after him and he didn’t have any fear or
apprehension that his arrest might take place. Also Sec 82
of the code it is mentioned that anticipatory bail cannot be
granted to a proclaimed offender. And warrant was
executed in favour of the accused and still he was evading
the arrest so it would not make sense to give him any
protection. Court will rather publish a written
proclamation for the accused to appear at a particular
date in not less than 30 days. And in this case the
proclaimed offender is in respect to cases listed in clause
3 of the section signifying t be a cognizable offence.
Also the accused was in violation of section 438 (2) as he
should have made himself available for interrogation but
he did not.

ii) Yes, he will be termed an absconder under given facts and

circumstances as sec 160 order was already served to the
accused and he was still evading his arrest and also that
CBI had already filed an arrest warrant under section 73
for the accused so it becomes clear that there was a
charge against him and he was escaping and the fact that
under section 73 an arrest warrant issued proves the fact
that he was evading and he was proclaimed offender as
section 73 is evoked for only these kind of offenders.
iii) Section 73 warrant is issued for the aid and assiatnce of
the inestigation and the accused should file for
anticipatory bail before warrant under section 73 has
been issued as in this case before anticipatory bail being
granted CBI had alrrady field for Section 73 warrant. And
as the accused had no knowledge of this warrant he may
be ganted bail.
In Sidhram Satlingappa v State of Maharasthra the scope
of 438 shold not be narrowed down, bail should be
gramted keeping in mind 438(2) should follow such bail
and it cannot be issued after anticipatory bail is issued.
Q3.
As per section 177, the trial shall ordinarily be inquired into and
tried by a Court within whose local jurisdiction it was committed
but in this case we aren’t sure whether Rambo killed the person in
New Delhi or in Kolkata as it is mentioned he was last seen in
Dum Dum Airport in Kolkata and the actual offence of muder
hasn’t been disclosed as to where the same has taken place, it is
also ossible tat RAmbo would have kidnapped the victim from
Kokata and brought him to Delhi so as there is uncertainity the
trieal can happen in both the jurisdictions in Kolkata or in Mumbai
It is importat to consider Sec 178 as well which says that When it
is uncertain in which of several local areas an offence was
committed, or
(b) where an offence is committed partly in one local area and
partly in another as in this cacse it could have partly been
committed in Kolkata and partly in Delhi
(c) where an offence is a continuing one, and continues to be
committed in more local areas than one. In this case we don’t
know wheter the offence is continuing or not, wheher the victim
was initially kidnapped from delhi and then taken to Kolkata and
then murdered in Delhi
(d) where it consists of several acts done in different local areaas
so it is uncertain as to where the trial will take place can take
place either city.

Q4. The Complaint is defined in Section 2(d). As per this section, it

says that allegation made orally or in writing to a Magistrate that
some person, whether known or unknown, has committed an
offence, but it does not include a police report or statement
Essentials of a Valid Complaint:
A complaint requires an allegation of commission of an offence by
offender.
The complaint can be orally or in writing. The complaint must be
made to a Magistrate.
The complaint should be made to take action by the Magistrate.
Section 200 – 203 deals with the complaint to the magistrate in
Criminal Procedure Code 1973.

190. Cognizance of offences by Magistrates.

(1) Subject to the provisions of this Chapter, any Magistrate of the
first class, and any Magistrate of the second class specially
empowered in this behalf under sub- section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such
offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police
officer, or upon his own knowledge, that such offence has been
committed.
According to S. 190(1)(c) the magistrate can take cognizance of
any offense upon the information received from any person other
than a police officer or upon his knowledge. Hence the proper use
of the power conferred by this provision is to proceed under it
when the magistrate has reason to believe the commission of a
crime but is unable to proceed ordinary way owing to absence of
any complaint or police report about it The object is to enable the
magistrate to see that justice is vindicated notwithstanding that
the persons individually aggrieved are willing or unable to
prosecute.. Therefore the word ‘knowledge’ as used in the clause
(c) should be interpreted rather liberally so as to subserve the
real object of the provision. It has been opined that if a
magistrate takes action under S. 190(1)(c) without having
jurisdiction then such trial would be vitiated.
A magistrate has certain discretion but it must be judicial in
nature, it is limited in scope. And taking cognizance does not
depend upon the presence of the accused in the court. In fact he
does not have any role at this stage. It may be noted that a
magistrate can take cognizance of any offense only within the
time-limits prescribed by law. Even after the period of limitation
such offenses can be taken cognizance of by the court if the delay
is condoned prior to taking cognizance. The power to take
cognizance of an offense may not be confused with the power to
inquire into or try a case.

Section 190 (1) states about the powers and conditions under
which any magistrate of first and second class specifically
empowered in this behalf can take cognizance. However if a
magistrate in good faith erroneously take cognizance of offence,
such proceeding would not become void per se subject to the
condition that it was done upon information received or upon his
own knowledge.[ R.R.Chari v. State of U.P; 1951 AIR 207]
Purshottam Jethanand v. State of Kutch [AIR 1954 SC 700]: If a
magistrate takes cognizance of an offense and proceeds with a
trial though he is not empowered in that behalf and convicts the
accused, the accused cannot avail himself of the defect and cannot
demand that his conviction be set aside merely on the ground of
such irregularity, unless there is something on the record to show
that the magistrate had assumed the power, not erroneously and
in good faith, but purposely having knowledge that he did not
have any such power. On the other hand, if a magistrate who is
not empowered to take cognizance of an offense takes cognizance
upon information received or upon his own knowledge under S.
190(1)(c) his proceeding shall be void and of no effect. In such a
case it is immaterial whether he was acting erroneously in good
faith or otherwise.

When a petition of complaint is filed before a magistrate the

question whether he can be said to have taken cognizance of the
offense alleged in the complaint under S. 190(1) depends upon
the purpose for which he applies his mind to the complaint. If the
magistrate applies his mind to the complaint for the purpose of
the proceeding with the complaint, he must be held to have taken
cognizance of the offences mentioned in the complaint but on
other hand if he applies his mind to the complaint not for any such
purpose but only for the purpose of ordering an investigation or
for issuing search warrant, he cannot be said to have taken
cognizance of the offense.
It has been explained that the magistrate while taking cognizance
of an offense, is becoming aware of the commission of that
offense and that awareness continues. So a magistrate would be
entitled to take cognizance of a complaint case after having taken
cognizance of the case on police report. It has also been opined
that even if this involved taking cognizance twice, there is no
harm as no provision in the Code prohibits it [Kesavan Natesan v.
Madhavan Peethambaran, 1984 Cri LJ 324 (Ker HC)].

Cognizance by Magistrate Section 190:

‘‘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.