Book Preview - Q and A CRPC

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Q & A: Code of Criminal Procedure
First Edition : 2022
Published by
Samarth Agrawal Books
7R/5, Kailashpuri Colony, Tashkant Marg
Civil Lines, Prayagraj-211001
e-mail : samarthagrawalbooks@gmail.com
website : www.samarthagrawalbooks.com
For Sales and Distribution contact: - 7905723822
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ã All Rights Reserved with Publisher
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ISBN : 978-81-956155-8-2
MRP : Rs. 330 (Rupees Three Hundred Thirty Only)
Samarth Agrawal
LL.M, NET/JRF
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Former Judge (U.P. Judicial Service)
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Disclaimer
Due care has been taken while compiling, editing and printing this book to avoid any error or omissions.
Neither the author nor the publisher of the book holds any responsibility for any mistake that may have
inadvertently crept in. They also take no responsibility for any loss or damage caused to any person on
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account of any action taken on the basis of the book. The publisher shall not be liable for any direct,
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consequential or incidental damage arising out of use of this book. Any mistake or discrepancy noted
may be brought to our notice which shall be taken care of in the next edition.
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Explanations, guidance and references must not be taken as having authority or having binding nature.
For authoritative text kindly contact the concerned department or official publication. Kindly contact
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the concerned department for official papers. In case of any binding mistake, misprints or missing pages
the publisher's entire liability is limited to replacement of the book within one week of purchase by
similar edition/reprint of the book upon production of original invoice of purchase.
All disputes are subject to the courts of Prayagraj jurisdiction only.
Printed by
Amar Mudranalaya
Prayagraj
2 Samarth Agrawal Books

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This book contains Questions and Answers which have
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been previously asked in Civil Judge/HJS/APO Mains
Examinations of various States and as well as in semester
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examination of LL.B curriculum of various universities. The
questions and answers have been arranged in a chapter-wise
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format for convenience of students.
This book is extremely useful for aspirants who are preparing
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for Civil Judge/HJS/APO examinations as well as students who

are pursuing LL.B course and are preparing for semester
examinations.
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Samarth Agrawal Books 3

Contents
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1. Definitions ............7
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2. Criminal Courts and Offices ...........18
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3. Power of Courts ..........24
4. Power of superior police officers and Aid to Magistrates
and Police Pr ...........29

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5. Arrest ...........31
6. Process to compel appearance ..........44
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7. Process to compel production of things ..........54

8. Security for keeping peace and for good behaviour ..........58
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9. Maintenance proceedings ..........64

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10. Maintenance of public order and tranquility ..........73

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11. Preventive action of police ..........80

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12. Information to police and powers to investigate ...........81

13. Jurisdiction of criminal courts .........116
14. Cognizance of offences .........124
15. Complaint proceedings .........137
16. Charge .........143

17. Sessions trial .........155

18. Warrant trial .........159
19. Summons trial .........163
20. Summary trial .........167
21. Plea bargaining .........169
22. Mode of taking and recording evidences .........173
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23. General provisions as to inquiry and trial .........175
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24. Provisions as to accused person of unsound mind .........194
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25. Provisions as to offences affecting the administration
of justice .........196
26. Judgment Pr .........199
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27. Submission of death sentence for confirmation .........206
28. Appeals .........208
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29. Reference and Revision .........214

30. Transfer of criminal cases .........217
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31. Execution, Suspension, Remission and Commutation

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of Sentences .........219
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32. Bail and Bonds .........225

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33. Disposal of property .........238

34. Irregular proceedings .........240
35. Limitations for taking cognizance .........244
36. Miscellaneous .........246
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1 Definitions
Q. : Discuss the applicability of the Code to the offences under Indian
Penal Code and other law
A. : Section 4 of the Code deals with the applicability of the Code. Generally
Cr.P.C. is applicable in respect of investigation, inquiry or trial of offences punishable
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under Indian Penal Code. Section 4(2) further lays down that offences under any
other law shall also be investigated, inquired and tried according to the procedure in
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the Code. But if there is any enactment which regulates the manner, place of investi-
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gation, inquiry or trial of the offences the procedure prescribed in that enactment will
be followed. Section 5 lays down that in absence of any specific provision in the
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Code, the provisions of any special or local law, special jurisdiction or power con-
ferred or special form of procedure shall not be affected.
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Thus, a conjoint reading of both sections clearly provides that for offences
punishable under Indian Penal Code procedure prescribed in Code of Criminal
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Procedure shall be applicable but if there is any special or local law, special procedure
or power conferred by any other law, such law, procedure or power shall be applicable.
In Kaushik Chatterjee v. State of Haryana, (2020) 10 SCC 92, Supreme
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Court held that in case of trial of offences under special law, offences shall be tried by
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the court specifically mentioned in the special law. If the special law is silent about the
court in which it can be tried then such offence can be tried either by the High Court
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or in any other court as given in First Schedule of the Code.

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Q. : Write note on Warrant Case an Summons Case
A. : Section 2 (w) and Section 2 (x) of the Code provides for the definition
of summons case and warrant case respectively.
Warrant Case : Section 2(x) provides that a warrant case means a case relating
to an offence punishable with death, life imprisonment or imprisonment for a term
exceeding two years.

Summons Case : Section 2 (w) provides that summons case means a case
which is not warrant case, i.e., a case relating to an offence which is not punishable with
death, life imprisonment or imprisonment for a term exceeding 2 years.
The classification is useful for determination of type of trial procedure. The
procedure in trial of summons case is different from that of warrant case. The
classification is based on the seriousness of the offence.
Q. : What are the material points of difference between summons case

and warrant cases?
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Distinguish between Summons and Warrant cases.
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A. : The following are the differences between summons case and warrant case
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Summons Case Warrant Case
1. They are of less serious nature and
are punishable with imprisonment for
a team less than 2 years [Section 2
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1. They are serious in nature and are
either punishable with death, life
imprisonment or imprisonment for a
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term exceeding 2 years [Section
(w)]. 2(x)].
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2. According to Section 204, the court 2. In warrant cases, the court may either
issues summons to the accused for issue a warrant or summon as it deems
his attendance. fit.
3. The trial of warrant cases are more
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3. The trial in summons cases are more

complex and two comprehensive
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simpler and less complex and

provides a single unified procedure procedures are provided under
Section 238 till 250 for warrant cases
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under Section 251-259.

institutied on (a) police report and (b)
otherwise
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4. Summons case can be withdrawn by 4. A complaint cannot withdraw a

the complainant by virtue of Section warrant case but public prosecutor
257. only with the court's consent.
5. In summons trial it shall not be 5. In warrant case it shall be necessary
necessary to frame charge to frame charge
6. Magistrate can stop proceedings 6. There is no provision for stoppage
under summons case. [Section 258] of proceedings.

Q. : Define the following

(a) Cognizable and non-cognizable offences.
(b) Bailable and non-bailable offence
(c) Inquiry and investigation & trial.
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Define with reference to Cr. P.C. :
(i) Inquiry
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(ii) Cognizable offence
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(iii) Non-bailable offence
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A. :
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(a) Cognizable & Non-cognizable offences: Section 2(c) of the Code
provides that a cognizable offence means an offence for which & cognizable case
means a case in which a police officer may, in accordance with the first schedule or
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under any other law for the time being in force, arrest without warrant.
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Section 2(l) of the Code provides that non-cognizable offence means an offence
for which and a non-cognizable case means a case in which, a police officer has no
authority to arrest without a warrant.
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The classification of offences in to cognizable and non-cognizable is shown in

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column 4 of the First Schedule of the Code.

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(b) Bailable and Non-bailable offences: Section 2(a) of the Code provides
that bailable offence means an offence which is shown as bailable in the First Schedule
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or which is made bailable by any other law for the time being in force. A non-bailable
offence means any other offence.
Whether the offence is bailable or not is provided in the column 5 of First
Schedule. First Schedule consists of Part I and Part II. In a bailable offence the
person gets bail as a matter of right while in a non-bailable offence the grant of bail is
a matter of discretion to be exercised by the court on sound judicial principles.

(c) Investigation, Inquiry and Trial:

Investigation : Section 2(h) of the Code provides that investigation includes
all proceedings under the Code for the collection of evidence conducted by the police
officer or any person, other than the magistrate, authorized by him.
The basic purpose of investigation is the collection of evidence. Investigation is
conducted by police officer. It must be noted here that investigation is not conducted
by the magistrate. However, in certain circumstances magistrate may authorize any
person other than police officer to conduct an investigation.
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Inquiry : Section 2 (g) of the Code provides that inquiry means every inquiry,
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other than a trial conducted under this Code by a Magistrate or Court.
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The basic purpose of inquiry is to ascertain truth or falsity of facts in order to
proceed further under the Code. Inquiry is conducted by the Magistrate and inquiry
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and trial does not overlap. Where trial begins, inquiry stops. Proceedings under Section
107, 108, 109, 110, 125, 133, 144, 145, 147, 148, 202, 340 of the Code have been held
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to be inquiries.
Trial : The term ‘trial’ has not been defined in the Code. There can be no univer-
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sal meaning of the term trial. It can be defined as proceeding to determine guilt or
innocence of the accused. Trial always ends in either acquittal or conviction.
In Harchand Singh v. State of Haryana, 1974 SCR (1) 583 Supreme Court
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held that the purpose of trial is to find out whether accused is guilty or not. In Anokhilal
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v. State of M.P., (2019) 20 SCC 196 Supreme Court held that the object of criminal
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trial is to search the truth. It must be conducted in such a manner as will protect the
innocent and punish the guilty.
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Q. : Distinguish between :
(a) Cognizable and non-cognizable offences.
(b) Bailable and non-bailable offence
(c) Inquiry and investigation & trial.
A. :
2 Criminal Courts and Offices

Q. : What are the various classes of Criminal Court under the Code of
Criminal Procedure?
A. : Section 6 of the Code provides for the classes of criminal courts in the
every State. According to it, besides High Court and the Courts Constituted under any
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law other than this Code, there shall be following classes of criminal courts :
(a) Courts of Session
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(b) Judicial Magistrate of first class and in any Metropolitan area (having
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population of one million or more), Metropolitan Magistrate.
(c) Judicial Magistrate of second class.
(d) Executive Magistrate Pr
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Q. : Explain the constitution of Court of Session
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Where does Court of Session ordinarily hold its sittings

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Can a judgment pronounced by a Session Judge challenged on the

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ground that his appointment was subsequently held to be invalid?

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A. : Section 9 of the Code provides for the establishment, appointment of

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presiding officers and other aspects of Court of Sessions.

Establishment: It provides that the State Government shall establish a Court
of Session for every sessions division.
Appointment of judge: Every Court of Session shall be presided over by a
Judge, to be appointed by the High Court. The High Court may also appoint Additional
Sessions Judges and Assistant Session Judges to exercise jurisdiction in a Court of
Session.
Explanation appended to Section 9 provides that for the purposes of this Code,
“appointment” does not include the first appointment, posting or promotion of a
person by the Government to any Service, or post in connection with the affairs of
the Union or of a State, where under any law, such appointment, posting or promotion
is required to be made by Government.
The Explanation was added to set at rest the controversy raised in State of
Assam v. Ranga Muhammad, AIR 1967 SC 903. Section 9(2) confers on the High
Court the power of appointment of Sessions Judge, whereas the Explanation clarifies
that the power does not extend to the making of first appointment to the cadre which
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under Article 233 of the Constitution vests in Governor.
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Supreme Court in Gokaraju Rangaraju v. State of A.P., (1981) 3 SCC 132
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held that judgments pronounced by the Sessions Judge cannot be challenged on the
ground that his appointment was subsequently held invalid as having been in violation
of Article 233 of the Constitution of India.
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Place of sitting: The Court of Session shall ordinarily hold its sitting at such
place or places as the High Court may, by notification, specify; but, if, in any particular
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case, the Court of Session is of opinion that it will tend to the general convenience of
the parties and witnesses to hold its sittings at any other place in the sessions division,
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it may, with the consent of the prosecution and the accused, sit at that place for the
disposal of the case or the examination of any witness or witnesses therein.
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In Kehar Singh v. The State (Delhi Administration), AIR 1988 SC 1883

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Supreme Court held that a notification by the High Court for holding the sittings of
the Sessions Court in Tihar Jail was not illegal as the notification amounted to declaring
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Tihar Jail as a place in addition to Tis Hazari.

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Q. : Who is the judicial officer competent to give special orders as to

the distribution of business among the Judicial Magistrate posted
in a District Judgeship?
A. : According to Section 15(2) of the Code the Chief Judicial Magistrate is

empowered to give special orders and make rules from time to time consistent with
the Code as to the distribution of business among the Judicial Magistrate subordinate
to him in a District.
Q. : What do you understand by local jurisdiction?
A. : Section 2 (j) of the Code defines 'local jurisdiction'. It means, in relation to

a Court or Magistrate, the local area within which the court or Magistrate may exercise
all or any of its or his powers under the Code and such area may comprise the whole
of the State or any part of the State as the State Government may, by notification
specify.
The Chief Judicial Magistrate is empowered under Section 14 to define the
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local jurisdiction of Judicial Magistrate appointed in a district. Similarly, under Section
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22, District Magistrate is empowered to define local jurisdiction of Executive Magistrate
under him.
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Q. : What is the difference between Judicial Magistrate and
Metropolitan Magistrate?
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A. : The Judicial Magistrates are appointed under Section 11 and Metropolitan
Magistrates are appointed under Section 16 by the State Government in consultation
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with High Court. The following are the points of difference between them :
Judicial Magistrate Metropolitan Magistrate

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1. A Judicial Magistrate is appointed for 1. A Metropolitan Magistrate is

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a district or sub-division of a district. appointed to exercise jurisdiction in

metropolitan area, i.e., area whose
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population exceeds one million

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[Section 8].
2. Judicial Magistrate is further subdi- 2. There is no such division among Met-
vided into Judicial Magistrate of first ropolitan Magistrate
class and second class.
3. A Judicial Magistrate can try a case 3. A Metropolitan Magistrate can try the
summarily only when empowered case summarily without the authority
by High Court [Section 260(1)(c)]. of High Court.

Q. : Who is a Public Prosecutor and who can appoint a Public

Prosecutor?
A. : Section 2(u) of the Code defines ‘Public Prosecutor’. It means any person
appointed under Section 24 and includes any person acting under the directions of
public prosecutor.
Section 24 of the Code provides for the appointment of Public Prosecutor. He
is the person appointed for conducting prosecution, appeal or other proceeding on
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behalf of the Central Government or State Government, as the case may be in the
court for which he is appointed.
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Who may appoint Public Prosecutor
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A public prosecutor is appointed for every High Court and every district.
(i)
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Appointment in High Court: Section 24(1) of the Code provides that
for every High Court, Public Prosecutor shall be appointed by Central
Government or the State Government after the consultation with High
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Court. One or more Additional Public Prosecutor can also be appointed
for conducting cases.
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(ii) Appointment in District: Section 24(3) of the Code provides that for
every district, the Public Prosecutor shall be appointed by the State Gov-
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ernment provided :
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(a) His name appears in the panel of names prepared by District Magis-
trate in consultation with Sessions Judge [Section 24 (4)]; or
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(b) Where in a State there exists a regular cadre of prosecuting offices, he

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is from among the persons constituting such cadre [Section 24(5)].

The Central Government may also appoint one or more Public Prosecutors for
conducting any case or class of cases in any district or local area. [Section 24(2)].
Eligibility
Section 24 (7) of the Code provides that a person is eligible to be appointed as

a Public Prosecutor only if he has been in practice as an advocate for 7 years or more.

3 Power of Courts
Q. : What courts have jurisdiction to try juveniles?
A. : Section 27 of the Code provides that any offence not punishable with
death or imprisonment for life, committed by any person who at the date when he
appears or is brought before the court is under the age of 16 years, may be tried by
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the court of Chief Judicial Magistrate or any court specially empowered under the
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Children Act, 1960, or any other law for the time being in force for the treatment,
training and rehabilitation of youthful offenders.
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At present juveniles are tried according to Juvenile Justice (Care and Protection
of Children) Act, 2015.
Q. :
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What is the maximum sentence that can be passed by a Sessions
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Judge?
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A. : Section 28(2) of the Code provides that 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.
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When a sentence of death is passed by a Sessions Judge or Additional Sessions

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Judge it is submitted for confirmation to the High Court under Section 366 of the
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Code. When the High Court confirms the sentence of death under Section 368 it is
accordingly executed as per the provisions of law.
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Q. : To what extent an Assistant Sessions Judge can pass a sentence?
A. : Section 28(3) of the Code provides for the sentence which can be passed
by an Assistant Session Judge. It provides that Assistant Sessions Judge can pass any
sentence authroised by law except sentences of death, life imprisonment or imprison-
ment for a term exceeding 10 years.

Q. : What is the maximum sentence that can be passed by a Chief

Judicial Magistrate?
A. : Section 29(1) of the Code provides for maximum sentence that can be
passed by Chief Judicial Magistrate. It provides that the Court of Chief Judicial
Magistrate can pass any sentence authorized by law except sentence of death, life
imprisonment or imprisonment exceeding 7 years.
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So, it can pass a sentence of imprisonment upto 7 year only. There is no limit for
imposing five and Chief Judicial Magistrate can impose any reasonable amount of
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fine.
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Q. : What sentences can be passed by Magistrate in Criminal Cases?
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A. : Section 29 of the Code provides for the sentences which can be passed by
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following Magistrate :
(1) The Court of Chief Judicial Magistrate and Chief Metropolitan Magistrate
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may pass any sentence authorised by law exept sentence of death, life
imprisonment or imprisonment exceeding 7 years.
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(2) The Court of Magistrate of First class and Metropolitan Magistrate may pass
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any sentence of imprisonment for a term not exceeding 3 year or fine not
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exceeding ten thousand rupees or both

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Thus where A, an accused is convicted for offence punishable under Section

420 IPC, the Judicial Magistrate first class may sentence him to imprisonment
for a term not exceeding 3 years alongwith fine not exceeding Rs. 10,000.
(3) The Court of Magistrate of Second class may pass a sentence of imprisonment
for a term not exceeding one year, or of five not exceeding Rs. 5,000, or
both.

Q. : An accused `A' is tried for the offence punishable under Section

420 of Indian Penal Code what maximum term of imprisonment
executable, can be inflicted by Judicial Magistrate First Class?
A. : The present problem is related to Section 29 of the Code. It provides the

imprisonment not exceeding 3 years and fine not exceeding ten thousand rupees can
be imposed by a Court of Judicial Magistrate First Class can inflict.
In the given problem 'A' is tried for offence under Section 420 Indian Penal
Code. This section provides for maximum impriosnment of seven years and fine.
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However, given the fact that the case is being tried by the Judicial Magistrate First
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Class he can only impose a maximum punishment of three years and fine of rupees
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ten thousand.
Q. : What are the provisions relating to sentence of imprisonment for
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default of payment of fine and what is the maximum period of
imprisonment in default of fine when offence is punishable with
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fine only?
A. : Section 30 of the Code provides that the Court of Magistrate may award
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such term of imprisonment in default of payment of fine as is authorized by law. This

section only confers the power to the court to impose imprisonment in default of
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payment of fine. Sections 64-67 of Indian Penal Code provide for law relating to
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imprisonment in default of fine.

Imprisonment awarded under this provision may be in addition to substantive
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sentence of imprisonment for the maximum term awardable by the Magistrate under
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Section 29. Section 30 provides two limitations:-

(i) Such imprisonment shall not be in excess of the powers of the Magistrate
under Section 29.
(ii) If the imprisonment has been awarded as a part of substantive sentence
then the imprisonment for default of payment of fine shall not exceed
one-fourth of the term of imprisonment which the magistrate is compe-
tent to inflict as punishment for the offence.

Powers of superior police officers

4 and Aid to Magistrates and Police
Q. : Can a Deputy Inspector General of Police exercise the power of a
Station House Officer? If so, under what provision of law?
A. : A Deputy Inspector General of Police can exercise the power of a Station

House office by virtue of Section 36 of the Code. It provides that a police office
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superior in rank to office in charge of a police station may exercise the same powers
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throughout the local area to which they are appointed as may be exercised by such
officer within the limits of his station.
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Q. : When is a private person bound to assist a police officer?
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When a private person authorized to assist a person other than
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police officer?
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A. : Section 37 of the Code provides circumstances when every person is bound

to assist a Magistrate or police officer. Following are the circumstances:-
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(a) in the taking or preventing the escape of any other person whom such
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Magistrate or police officer is authorised to arrest; or

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(b) in the prevention or suppression of a breach of the peace; or
(c) in the prevention of any injury attempted to be committed to any railway,

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canal, telegraph or public property.
Section 38 of the Code provide provisions relating to aid to person, other than
police officer, executing warrant. It provides that when a warrant is directed to a
person other than a police officer, any other person may aid in the execution of such
warrant, if the person to whom the warrant is directed be near at hand and acting in
the execution of the warrant.

Section 39 of the Code provides that every person, aware of the commission
of, or of the intention of any other person to commit, any offence punishable under
any of the following sections of the Indian Penal Code shall, in the absence of any
reasonable excuse, the burden of proving which excuse shall lie upon the person so
aware, forthwith give information to the nearest Magistrate or police officer of such
commission or intention.:—
(1) Sections 121 to 126, both inclusive, and section 130 [that is to say, offences
against the State specified in Chapter VI of the said Code];
(2) Sections 143, 144, 145, 147 and 148 [that is to say, offences against the public
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tranquillity specified in Chapter VIII of the said Code];
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(3) Sections 161 to 165A, both inclusive [that is to say, offences relating to illegal
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gratification];
(4) Sections 272 to 278, both inclusive [that is to say, offences relating to
adulteration of food and drugs, etc.];
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(5) Sections 302, 303 and 304 [that is to say, offences affecting life];
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(6) Section 364A [that is to say, offence relating to kidnapping for ransom, etc.];
(7) Section 382 [that is to say, offence of theft after preparation made for causing
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death, hurt or restraint in order to the committing of the theft];

(8) Sections 392 to 399, both inclusive, and Section 402 [that is to say, offences
of robbery and dacoity];
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(9) Section 409 [that is to say, offence relating to criminal breach of trust by
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public servant, etc.];

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(10) Sections 431 and 439, both inclusive [that is to say, offences of mischief
against property];
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(11) Sections 449 and 450 [that is to say, offence of house trespass];
(12) Sections 456 to 460, both inclusive [that is to say, offences of lurking house
trespass]; and
(13) Sections 489A to 489E, both inclusive [that is to say, offences relating to
currency notes and bank notes],
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5 Arrest
Q. : In what cases may a police officer arrest without warrant?
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Under what circumstances may a police officer arrest a person
without an order from Magistrate or without warrant?
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A. : Section 2 (c) of Code states that a police officer can arrest a person without
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warrant in cognizable cases. The power to arrest without warrant is given to police
officer under Section 41. It lays down various circumstances in which a person can
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be arrest by a police officer without warrant. The Code under various other provisions
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as well empowers a police officer to arrest without Magistrate's order or warrant.
These circumstances are stated as under :
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1. Offence in presence of police [Section 41(1)(a)] : A police officer may arrest
without warrant, any person who commits a cognizable offence in his presence.
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2. Offence punishable with 7 years or less than 7 years imprisonment term

[Section 41(1)(b)] : If a reasonable complaint is made or credible information is
recieved or reasonable suspicion exists that a person has committed a cognizable
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offence punishable with imprisonment for a term upto 7 years, with or without
fine, the police officer can arrest such person without warrant if :
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(i) the police officer has reason to believe that such person has committed such
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offence, and
(ii) he is satisfied that such arrest is necessary :
(a) to prevent such person from committing any further offence, or
(b) for proper investigation of the offence, or
(c) to prevent such person from tampering with evidence or causing it to

disappear.

(d) to prevent such person from making any inducement, threat or promise
to any person acquainted with the facts of the case so as to dissuade him
disclosing such facts to the court or to police-officer, or
(e) as unless such person is arrested, his presence in the court whenever
required cannot be ensured.
The police officer shall record the reason in writing for making such arrest. These
parameters have been added by way of amendment in the Code in 2009 pursuant to
the guidelines laid down in Joginder Kumar v State of U.P., AIR 1994 SC 1349 to
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prevent arbitrary arrests by the police-officers.
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3. Offences punishable with death,life imprisonment, etc [Section 41(1) (ba)]
: If a person has committed a cognizable offence punishable with death, life
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imprisonment or imprisonment for a term exceeding 7 years, with or without
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fine and police officer has reason to believe on the basis of credible information
received that such person has committed such offence, the police-officer may
arrest him without warrant.
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4. Proclaimed Offender [Section 41(1)(c)] : Any person who has been declared
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a proclaimed offender either under this Code or by order of State Government

can be arrested without warrants.
5. Possessor of Stolen Property [Section 41(1)(d)] : Any person may be arrested
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without warrant in whose possession anything is found which is reasonably

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suspected to be a stolen property and who may reasonably be suspected of

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having committed an offence with reference to such thing.

6. Obstructs or escapes from custody of police officer [Section 41(1)(e)] : A
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police officer may arrest without warrant any person who :

(i) obstructs a police officer in execution of his duty, or
(ii) who has escaped or attempts to escape from lawful custody.
7. Deserter [Section 41(1)(f)] : A person who is reasonably suspected of being a
deserter from any of the armed forces of the union can arrested under Section
41.
8. Offence outside India [Section 41(1)(g)] : Any person who has been concerned
in or against whom a reasonable complaint is made or credible information is
received that he has committed an act outside India which is an offence in India
and for which he is liable to the apprehended under any law of extradition can be
arrested.
9. Breach of rule under Section 356 (5) [Section 41(1)(h)] : Any person who,
being a released convicte, breaches any rule made under Section 356 (5) of Cr.
P.C. can be arrested by a police officer without warrant.
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10. Arrest upon requisition [Section 41(1)(i)] : Any person for whose arrest on
oral or a written requisition has been received from another police officer can be
ie
arrested without warrant if :
ev
(i) the requisition specifies the person to be arrested, and
and Pr
(ii) the offence or other cause for which arrest is made is provided in requisition,
(iii) it appears that the person might lawfully be arrested without a warrant by the
ok
police officer issuing requisition.
11. Non-disclosure of name or address [Section 42] : According to Section 42, a
Bo
police officer can arrest a person even in non-cognizable case if such person
refuses to gives or gives false name or address. No warrant is necessary to make
e
such arrest, and such arrest is valid until such name or address is not as certained
pl
and not beyond.

12. Preventing commission of cognizable offence [Section 151] : A police officer
m
is authorized to arrest a person under Section 151 without warrant if such person
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is designing to commit a cognizable offence and arrest is necessary to prevent him

from doing so.
13. Breach of condition under Section 432 & 433 : A police officer may arrest a
person without warrant whose sentence has been suspended or remitted by State
Government upon certain conditions and he has breached those condition.
Thus, in all these cases, a person can be arrested without warrant or order of
Magistrate.

Q. : Regulating the nature of interaction between the accused and the

police authorities is at the crux of development of criminal justice
system.
Elaborate on the Statement by referring to the guidelines laid down
in the case of Joginder Kumar v. State of U.P., AIR 1994 SC 1349.
A. : Regulating the nature of interaction between the accused and the police
authorities is at the crux of developed criminal justice system. This remark was made
by the Supreme Court in the case of Joginder Kumar v. State of U.P. AIR 1994 SC
w
1349, where the court laid down certain guidelines in order to have transparency in the
accused police relations.
ie
Need for Guidelines
ev
Prior to the 2009 Amendment of Code of Criminal Procedure, Section 41 of
the Code empowered police officer to arrest any person without warrant if he has
Pr
committed any cognizable offence in his presence or against whom a reasonable
complaint or credible information is received to that effect. Thus, mere fact that the
ok
offence is cognizable gave them power to curtail the liberty of any person and arrest
because a rule rather than exception.
Bo
Thus, in Joginder Kumar case, the court observed that to arrests and custodial
deaths have become a handly rule and common phenomenon. The court clarified that
power to arrest is one thing and the exercise of such power is another. So, the court
directed the police officers not to make arrests in routine manner but only under
e
compelling circumstances and laid down following guidelines :

pl
(a) An arrested person in custody is entitled to have one friend, relative or other
m
person interested in his welfare to be informed of his arrest.

(b) He shall be informed of this right by the police officer making arrest.
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(c) An entry shall be made in a diary as to who was informed of his arrest. These
protection from power must be held to flow from Article 21 and 22 (1) of
Constitution.
The frequent instances of police atrocities and custodial deaths, however,
continued and prempted Supreme Court to issue further guidelines the protecting
arrested persons in the case of D.K. Basu v. State of West Bengal (1997) 6 SC 642
which are as under :

(a) The police personnel carrying out the arrest and handling the interrogation
should bear an accurate and clear identification mark with their designation.
(b) The police officer carrying out the arrest shall prepare the memo of arrest
which shall be attested by at least one witness.
(c) Arrested person shall be entitled to have his friend or relative to be informed
of his arrest.
(d) He msut be aware of his right to have someone being informed of his
arrest.
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(e) The arrestee must be examined at the time of arrest and every major or
ie
minor injury must be recorded.
(f) The arrestee should be subject to medical examination by a trained doctor
ev
every 48 hours.
Pr
(g) The copies of all documents including memo of arrest should be sent to the
Magistrate for record.
ok
(h) The arrestee must be produced before Magistrate within 24 hours.
(i) He must be permitted to meet a lawyer during interrogation.
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(j) Police control room should be provided at every district and State
Headquarters.
All these guidelines were later adopted in the code by way of 2009 amendment
e
in the code of Criminal Procedure under various provisions therein.

pl
Position after the Amendment

m
After the amendment of 2009 in the Code all these guidelines have been
Sa
incorporated under following provisions of the Code :

1. Under Section 41-B, the police officer making the arrest is bound to bear
identificatiion mark and prepare vempt of arrest.
2. Under Section 41-C, police control rooms are established at State as well as
District level
3. Under Section 41-D, the arrested person shall have access to lawyers during
interrogation.

6 Process to compel appearance

Q. : Briefly State the processes to compel appearances of the accused
or of witness before a court.
or
Write short notes on coercive steps to be adopted by courts to
procedure attendance of an accused.
w
A. : Chapter VI of Code provides for processes to compel appearance of the
ie
accused and witnesses. The Code by way of Section 204 provides for two methods
ev
of procuring the attendance of the accused at trial :
(a) issue of summons in summons cases,
Pr
(b) Issuing summon or warrant in warrant cases, as the court deems fit.
ok
If the attendance of accused is not secured by way of above two methods, the
court may adopt more coercive step by issuing proclamation and attachment under
Bo
Sections 82 and 83.

These processes and steps are discused as under :
1. Summons [Section 61-69] : A summons in case of an accused person is an
e
pl
authoritative call to him to appear in court to answer to a change of an offence.

It must be singed and sealed and shall, if practicable, be served personally to the
m
accused. Summons can also be served to secure attendance of witness and a

copy of summons can also be served to the witnesses upon the address at a place
Sa
where they reside or carry on business. If summons are not served as per Section
62, then substituted service can be made as provided under Section 64 and 65.
2. Warrant [Section 70-81] : A warrant of arrest is the most effective remedy of
securing attendance of accused. It may be issued in a warrant case under Section
204 or in case when after issuing summons, the accused did not appear before
the court without showing any cause [Section 87].

Section 70 to 81 lays down the form and manner of executing warrant within
and outside India. Section 71 also provides issuing of bailable warrant where the
person to be arrest may give security for his appearance before the court in which case
the will not be arrested or detained in custody.
3. Proclamation and Attachment [Section 82-86] : Where the court has reason
to believe that the person against whom a warrant of arrest is issued is absconding
or avoiding execution of warrant thereof, then it may issue a proclamation requiring
that person to appear before the court within 30 days. The court may even declare
certain persons as proclaimed offenders under Section 82(4).
w
Section 83 provides that court issuing proclamation, may at any time after the
ie
issue of proclamation order attachment of any movable or immovable property
belonging to offender.
ev
If the court is of the opinion that the property of the accused, a whether mov-
Pr
able or immovable, shall be attached alongwith the proclamation, then after recording
reasons in writing, the court may order attachment of property under Section 83, until
the accused appears before the court in which case property will be restored to him
ok
under Section 85. This failure to do so will make the property to be sold within 6
months from the date of attachment.
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Thus, the court may adopt the above-mentioned steps to compel the attendance
of accused.
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Q. : How summons is served on Government Servant?

pl
A. : The provision regarding service of summons to a government servant is

m
provided under Section 66 of the Code. It provides that where summons is to be

served to a government servant, the court shall ordinarily send it in duplicate to the
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Head of the office where such person is employed. The Head shall then serve the
summons in the manner provided under Section 62, i.e., he shall serve the summons
personally, if practicable, by delivering or tendering one of the duplicate of summons
to the government servant.
Thereafter, the Head of the Office shall return it to the court under his signature
with the endorsement required under Section 62 on the back of other duplicate of the
summons.
Q. : State to whom a warrant of arrest may be directed. Whether such

a warrant may be directed to a person? Explain the circumstances
and law in this regard.
A. : Section 72 of the Code mentions to whom a warrant may be directed. It

provides that a warrant shall ordinarily be directed to a police officers. But the court
issuing such a warrant may if its immediate execution is necessary and no police
officer is immediately available, direct it to any other person and such person shall
execute the same.
w
Section 74 of the Code further provides that such warrant may also be executed
by any other police officer whose name is endorsed upon a warrant by the office to
ie
whom it is directed or endorsed.
ev
Warrant directed to other person
Pr
Since Section 72 provides that warrant shall ordinarily be directed to police officers,
it is therefore subject to exceptions and in following circumstances, it may be directed
to any person :
ok
1. Where the immediate execution of warrant is necessary and the police officer
is not available thereon. [Section 72].
Bo
2. Where warrant is issued against an escaped convict, proclaimed offender of

any person who is accused of non-bailable offence and is evading arrest
[Section 73].
e
pl
Q. : What are the guidelines regarding the issuance of non-bailable

warrant?
m
or
Sa
Can a non-bailable warrant be issued in first instance

or
Whether the Magistrate has power to issue warrant during
investigation?
A. : The issuance of non-bailable warrant involves interference with personal

liberty of the accused. Arrest and imprisonment means deprivation of the most precious
right of an individual. Therefore, courts should be extremely careful while issuing

non-bailable warrants. Supreme Court in In Inder Mohan Goswami v. State of

Uttaranchal, (2007) 12 SCC 1 held that non-bailable warrants should be issued to
bring a person to court when summons or bailable warrants would be unlikely to
have desired result. This could be when:-
1. It is reasonable to believe that the person will not voluntarily appear in
court; or
2. The police authorities are unable to find the person to serve him with
summon; or
w
3. It is considered that the person could harm someone if not placed into
custody immediately.
ie
In Raghuvansh Dewanchand Bhasin v. State of Maharashtra and Anr,
ev
AIR 2011 SC 3393 Supreme Court laid down following guidelines to be adopted in
all cases where non-bailable warrants are issued:-
1.
Pr
All the High Courts shall ensure that the Subordinate Courts use printed
and machine numbered Form No. 2 for issuing warrant of arrest and each
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such form is duly accounted for.
2. The court must ensure that complete particulars of the case are mentioned
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on the warrant.
3. The presiding judge issuing the warrant should put his full and legible
signatures on the process and ensure that the seal bearing the complete
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particulars are prominently endorsed.

pl
4. Each court must maintain a register in which each warrant of arrest issued
m
must be entered chronologically and the serial number of such entry must
be reflected on the top right hand of the process.
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5. A register similar to the above mentioned register shall be maintained at

each police station. SHO of the concerned station shall ensure that each
warrant of arrest issued by the court when recieved is duly entered in the
register.
6. On the date fix for the return of the warrant, the court must insist upon the
compliance report from the police. The report on such arrants must be
clear, cogent and legible.

Issuance of non-bailable warrant at first instance
Supreme Court in Vikas v. State of Rajasthan, (2014) 3 SCC 321 held that the
issuance of non-bailable warrant in the first instance without using other tools of
summons and bailable warrant to secure attendance of such a person would impair
the personal liberty of the person. Therefore, courts should be extremely cautious
while issuing non-bailable warrants.
Power of Magistrate to issue warrant during investigation
w
Supreme Court in State (CBI) v. Dawood Ibrahim Kaskar, AIR 1997 SC
ie
2494 held that Magistrate has the power to issue a warrant during an investigation.
ev
This power can be exercised by him for bringing about the appearance of the accused
person before the Court only and not before the police in the aid of investigation.
Q. : Pr
What is the procedure followed in executing a warrant beyond the
jurisdiction of the court which issued it?
ok
A. : Section 78 to 81 of the Code provides for execution of warrant outside
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jurisdiction of the court issuing it. The court issuing such warrant may either
(a) Forward the warrant by post or otherwise to Executive Magistrate or District

e
Superitendent of Police or Commissioner of Police within the local limits

pl
of whose jurisdiction it is to be executed alongwith. The substance of

information which will enable the court acting under Section 81 whether bail
m
is to be given or not shall also be included. [Section 78]

Sa
(b) Direct the warrant to police officer who shall ordinarily take it for
endorsement to Executive Magistrate as to a police officer (not below the
rank of officer in charge) within local limits of whose jurisdiction warrant is
to be executed. After the endorsement is made, this will serve sufficient
authority to police officer to whom warrant is directed to execute the same
with the assistance of local police. [Section 79].

9 Maintenance Proceedings
Q. : Explain the meaning, object and scope of maintenance
A. : The term ‘maintenance’ has not been defined in the Code. The term should
not be narrowly constructed as limited only to food, clothing and shelter. It also
includes means of subsistence, supply of necessaries, aid, support and assistance which
w
one person needs for his or her living. It varies according to the position and status of
person.
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Object
ev
The object of these provisions is to prevent starvation, destitution and vagrancy
Pr
to dependants. In Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 Supreme Court held
that Section 125 is a measure of social justice specially enacted to protect women and
children and falls within constitutional sweep of Article 15(3) reinforced by Article 39.
ok
Supreme Court in Bhagwan Dutt v. Kamala Devi, (1975) 2 SCC 386 laid
Bo
down following objectives of Section 125 of the Code:-

1. The remedy under Section 125 is speedier and economical than the remedy
enforced by way of civil courts. So, it will be beneficial for needy persons.
e
2. It aims at preventing destitution and vagrancy leading to commission of

pl
crime.
m
Scope
Sa
The proceedings under Section 125 is summary in nature. These provisions do

not fully determine the status of personal rights of the parties. The court would take
prima facie view of facts and it need not go into the details of matrimonial dispute.
In Nand Lal Mishra v. Kanhaiya Lal Mishra, AIR 1960 SC 882 Supreme
Court held that the relief given under this chapter is essentially civil in nature. However,
the findings of the Magistrate are not final and the parties can legitimately agitate their
rights in a civil court even after the order of Magistrate.

Q. : When is a husband ordered to pay maintenance allowance to his

wife?
or
What orders may a Magistrate pass when the husband fails to
comply with the order.
or
What is the limitation within while warrant for recovery of amount
may be issued under Section 125, Cr. P.C.?
w
A. : Section 125(1)(a) of the Code provides for the maintenance of wife by her
ie
husband.
When husband is liable to maintain
ev
Section 125 lays down following circumstances when husband is liable to maintain
his wife :
1.
Pr
He must have sufficient means : The husband must have sufficient means to
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maintain his wife, i.e., even if he is insolvent or a beggar or a minor, he must
support his wife as long as he is able bodied and has potential to earn. [ Basanta
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Kumari v. Sarat Kumar, 1982 Cr. L.J. 485 (Ori.)]. The ‘means’ contemplated
here is not confined to visible means only like land, income, property etc. If a
person is capable of earning then he must be held liable to maintain.
e
2. Neglect or refusal to maintain : There is duty upon the husband to maintain

pl
his wife and failure or omission to perform such duty without just cause entitles a
m
wife the claim maintenance under Section 125. Also, a husband who makes it
difficult for the wife to live with him and who fails to maintain her wife and she
Sa
lives elsewhere, he is said to neglect or refuse to maintain his wife.

For instance, bigamy is allowed under muslim law and husband is not liable for
contracting second marriage. However, a muslim wife would surely be entitled to live
seperately and claim maintenance solely on the ground that second marriage of her
husband has caused her mental agony and cruelty. In such a situation, husband cannot
take shelter of his personal law and claim immunity from Section 125. [ Begum Sabano
v. A.M. Abdul Gafoor, (1987) 2 SCC 285].

3. Wife unable to maintainance herself : It is necessary that wife is unable to

maintain herself, i.e., there is absence of source to maintain herself. Even if she has
potential earning capacity, she can claim maintenance but she may not get full
amount of the same.
Supreme Court in Chaturbhuj v. Sita Bai, AIR 2008 SC 530 held that the
expression 'unable to maintain herself' does not mean that the wife must be absolutely
destitute before she can apply for maintenance.
Failure of husband to pay maintenance
w
Section 125(3) of the Code provides that where a person fails without sufficient
ie
cause to comply with the order, for every breach of order, a warrant may be issued
ev
for levying fines and he may also be sentenced, for the whole or any part of each
month’s allowance remaining unpaid, to imprisonment for a term which may extend
to 1 month or until payment if sooner made.
Pr
For the issuance of warrant for the recovery of any amount due, an application
ok
should be made to the court within a period of 1 year from the date on which it
becomes due. [First proviso of Section 125 (3)].
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Q. : When can the Magistrate cancel the order of Maintenance to wife?

or
e
When is a wife not entitled to Maintenance from her husband?

pl
m
husband.
Circumstances when wife not entitled to maintenance

Sa
The following are circumstances when the court may refuse or cancel the main-
tenance of wife :
1. Wife living in adultery [Section 125 (4)] : If wife is involved in an outright
adulterous conduct consistently with another man and not only a single lapse of
virtue [Kasthuri v. Ramaswamy, 1979 Cri. L.J. 741 (Mad.)]. The expression
‘living in adultery’ means adulterous course of life.

2. Wife living seperately without just cause [Section 125 (4)] : The wife should
not be living seperately with her husband without just cause. Explanation to
Section 125(3) further provides that where husband keeps a mistres, it will be a
just ground to refuse from living with him.
3. Wife living seperately by mutual consent [Section 125 (4)] : If husband and
wife are living seperately by mutual consent, the latter is disentitled from claiming
maintenance. A divorced wife is not covered under this exception. Supreme Court
in Vanamala v. H.M. Ranganatha Bhatta , (1995) 5 SCC 299 held that wife
w
who obtained divorce by mutual consent cannot be denied maintenance by virtue
of Section 125(4).
ie
Cancellation of maintenance order
ev
1. Cancellation under Section 125(5) : Section 125(5) provides that on proof
Pr
that any wife in whose favour an order has been made is living in adultery or
without sufficient reson she refuses to live with her husband or that they are living
separately by mutual consent, the Magistrate shall cancel the order of maintenance.
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2. Remarriage of divorced wife [Section 127(3)(a)] : A wife who was divorced
should not have remarried otherwise the court will cancel her order of maintenance.
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3. Payment under customary or personal law [Section 127(3)(b)] : If the wife

who is divorced has received the whole sum payable to her on such divorce
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under personal or customary law, her maintenance order will be cancelled.

pl
Supreme Court in Bai Tahira v. Ali Hussain, (1979) 2 SCC 316 held that
amount of sum payable under customary or personal laws should not be meagre.
m
Maintenance under Section 125 of the Code will be cancelled under Section 127(3)(b)
Sa
only when the sum paid under customary or personal law is a reasonable substitute
for provision for future maintenance.
4. Waiver [Section 127(3)(c)] : If the divorced wife has voluntarily waived her
right to claim maintenance, her maintenance order will be cancelled.
5. Order of civil court [Section 127 (2)] : If it appears to Magistrate that order
under Section 125 shall be cancelled pursuant to decision of civil court, it may
cancel the same.

Q. : Whether a divorced wife can claim Maintenance? What is the

maximum amount of Maintenance permissible in Cr. P.C.?
husband.
Who is a wife?
According to Section 125, a wife who is unable to maintain herself can claim
maintenance. Explanation (b) to Section 125 defines 'wife' to include a divorced
wife who has not remarried. Thus, it is only an inclusive definition stating that even
w
divorced wife can claim maintenance if she has not remarried apart from legally
ie
wedded wife who is not divorced :
ev
In Yamuna Bai Anantrao Adhav v. Anantrao Shivram Adhav , AIR 1988 SC
644, the court held that wife under Section 125 means legally wedded wife and legality
Pr
of marriage will be determined on the basis of personal laws.
In some case, the court even held that strict proof of marriage is not necessary
and if the parties were living together as husband and wife, it would be sufficient to
ok
grant maintenance under Section 125 [Ramesh Chandra Daga v. Rameshwari Daga,
(2005) 2 SCC 33].
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Amount of maintenance : Section 125(1) provides that the Magistrate, after

weighing the evidence and satisfaction of essential conditions of granting maintenance,
may order the husband or other person to make a monthly allowance for the
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maintenance of claimant wife at such monthly rate as it deems fit.

pl
The upper limit of amount of maintenance i.e., Rs. 500 has now been removed
m
by Cr. P.C. (Amendment) Act 2001. Now, the Magistrate can fix the monthly allowance
at such monthly rate as it deems reasonable.
Sa
Q. : Can a muslim wife claim Maintenance from her husband under

Section 125 Cr. P.C.?
husband. In Nanak Chandra v. Chandra Kishore, (1969) 3 SCC 802 Supreme
Court held that provisions contained in Sections 125-128 are applicable to all persons
belonging to all religions and have no relationship with personal law of the parties.

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First Edition : 2022

For Sales and Distribution contact: - 7905723822

MRP : Rs. 330 (Rupees Three Hundred Thirty Only)

2 Samarth Agrawal Books

for Civil Judge/HJS/APO examinations as well as students who

Samarth Agrawal Books 3

and Police Pr ...........29

7. Process to compel production of things ..........54

9. Maintenance proceedings ..........64

10. Maintenance of public order and tranquility ..........73

11. Preventive action of police ..........80

12. Information to police and powers to investigate ...........81

4 Samarth Agrawal Books

17. Sessions trial .........155

29. Reference and Revision .........214

31. Execution, Suspension, Remission and Commutation

32. Bail and Bonds .........225

33. Disposal of property .........238

Samarth Agrawal Books 5

6 Samarth Agrawal Books

or in any other court as given in First Schedule of the Code.

Q. : Write note on Warrant Case an Summons Case

Samarth Agrawal Books 7

Q. : What are the material points of difference between summons case

3. The trial in summons cases are more

simpler and less complex and

under Section 251-259.

4. Summons case can be withdrawn by 4. A complaint cannot withdraw a

8 Samarth Agrawal Books

Q. : Define the following

The classification of offences in to cognizable and non-cognizable is shown in

column 4 of the First Schedule of the Code.

Samarth Agrawal Books 9

(c) Investigation, Inquiry and Trial:

2 Criminal Courts and Offices

Where does Court of Session ordinarily hold its sittings

Can a judgment pronounced by a Session Judge challenged on the

ground that his appointment was subsequently held to be invalid?

A. : Section 9 of the Code provides for the establishment, appointment of

presiding officers and other aspects of Court of Sessions.

In Kehar Singh v. The State (Delhi Administration), AIR 1988 SC 1883

Tihar Jail as a place in addition to Tis Hazari.

Q. : Who is the judicial officer competent to give special orders as to

A. : According to Section 15(2) of the Code the Chief Judicial Magistrate is

Q. : What do you understand by local jurisdiction?

A. : Section 2 (j) of the Code defines 'local jurisdiction'. It means, in relation to

The Chief Judicial Magistrate is empowered under Section 14 to define the

Judicial Magistrate Metropolitan Magistrate

1. A Judicial Magistrate is appointed for 1. A Metropolitan Magistrate is

a district or sub-division of a district. appointed to exercise jurisdiction in

population exceeds one million

20 Samarth Agrawal Books

Q. : Who is a Public Prosecutor and who can appoint a Public

(b) Where in a State there exists a regular cadre of prosecuting offices, he

is from among the persons constituting such cadre [Section 24(5)].

Section 24 (7) of the Code provides that a person is eligible to be appointed as

Samarth Agrawal Books 21

Q. : What courts have jurisdiction to try juveniles?

A. : Section 28(2) of the Code provides that a Sessions Judge or Additional

When a sentence of death is passed by a Sessions Judge or Additional Sessions

Q. : To what extent an Assistant Sessions Judge can pass a sentence?