Professional Documents
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Criminal Law
Criminal Law
Table of Contents
o What is an Offence?
o Types of Criminal Offences:
Functionaries under crpc
o Hierarchy of court ( section 6-23)
o Police as functionary (sec 36)
o Public prosecutor (section 24 to 25 A)
Basic concepts and definition
o Bailable and non-bailable offences [2(a)]
o Cognizable and non-cognizable offences (154)
o Charge [2(b)]
o Police report [173(2)]
o Investigation [2(h)]
o Inquiry [2(g)]
o Trial
o Summons and warrants case [2(w), 2(x)]
Arrest and right of an arrested person [50(1), 50(2), 57, 303, 304]
o Right to be produced before the Magistrate without unnecessary delay
o Rights to be released on Bail
o Rights to a fair trial
o Right to consult a lawyer
o Right to free Legal Aid
o Right to keep silence
o Right to be Examined by the medical practitioner
o Other Rights
Provision of bail under the code (436-450)
o What is bail ?
o Circumstances under which bail is given by police
o Types of bail
o Procedure of bail
Why do we need Criminal Procedure Law?
o What is an Offence?
o Types of Criminal Offences:
Functionaries under crpc
o Hierarchy of court ( section 6-23)
o Police as functionary (sec 36)
o Public prosecutor (section 24 to 25 A)
Basic concepts and definition
o Bailable and non-bailable offences [2(a)]
o Cognizable and non-cognizable offences (154)
o Charge [2(b)]
o Police report [173(2)]
o Investigation [2(h)]
o Inquiry [2(g)]
o Trial
o Summons and warrants case [2(w), 2(x)]
Arrest and right of an arrested person [50(1), 50(2), 57, 303, 304]
o Right to be produced before the Magistrate without unnecessary delay
o Rights to be released on Bail
o Rights to a fair trial
o Right to consult a lawyer
o Right to free Legal Aid
o Right to keep silence
o Right to be Examined by the medical practitioner
o Other Rights
Provision of bail under the code (436-450)
o What is bail ?
o Circumstances under which bail is given by police
o Types of bail
o Procedure of bail
o Bail bonds
Complaint to a Magistrate (200-203)
o Examination of the complainant
o The procedure by Magistrate not competent to take cognizance of the case
Commencement of Proceeding before Magistrate (204-210)
o Examination of complainant
Framing of Charges and Joinder of Charges
Jurisdiction of the Criminal Courts in Inquiries and Trials (179)
Types of trials: Sessions Trial, Warrant Trial, Summons Trial, Summary Trial
o Warrant trial (238-250)
o Process of a warrant trial
o Summary Trial
o Session trial (225-237)
o Summon trial (251-259)
Judgement and Sentences under the Code
o Judgement (353-360)
Submission of Death Sentences for Confirmation (366-371)
o Submission for conformation to High Court (Section 366)
o Power to direct further inquiry to be made or additional evidence to be taken
(Section 367)
o Power to the High Court to confirm sentence or annul conviction (Section
368)
o Confirmation or new sentence to be signed by two judges (Section 369)
General Provisions as to Inquiries and Trial
o Mode of taking and Recording Evidence
o Marking of Exhibits
o Cases
Execution, Suspension, Remission and Commutation of Sentences (432-435)
o Execution of sentence of death
o Suspension and remission of sentences
Appeals (372-394)
o Object and scope of appeals
o Appeals from convictions
o Appeal to the Court of Session
o Appeal to the High Court
o Appeal to the Supreme Court
Reference and Revision (395-405)
Inherent Power of Court (482)
Transfer of Criminal Cases (406-411)
Plea Bargaining (265-A)
o Procedure For Plea Bargaining
o Bail bonds
Complaint to a Magistrate (200-203)
o Examination of the complainant
o The procedure by Magistrate not competent to take cognizance of the case
Commencement of Proceeding before Magistrate (204-210)
o Examination of complainant
Framing of Charges and Joinder of Charges
Jurisdiction of the Criminal Courts in Inquiries and Trials (179)
Types of trials: Sessions Trial, Warrant Trial, Summons Trial, Summary Trial
o Warrant trial (238-250)
o Process of a warrant trial
o Summary Trial
o Session trial (225-237)
o Summon trial (251-259)
Judgement and Sentences under the Code
o Judgement (353-360)
Submission of Death Sentences for Confirmation (366-371)
o Submission for conformation to High Court (Section 366)
o Power to direct further inquiry to be made or additional evidence to be taken
(Section 367)
o Power to the High Court to confirm sentence or annul conviction (Section
368)
o Confirmation or new sentence to be signed by two judges (Section 369)
General Provisions as to Inquiries and Trial
o Mode of taking and Recording Evidence
o Marking of Exhibits
o Cases
Execution, Suspension, Remission and Commutation of Sentences (432-435)
o Execution of sentence of death
o Suspension and remission of sentences
Appeals (372-394)
o Object and scope of appeals
o Appeals from convictions
o Appeal to the Court of Session
o Appeal to the High Court
o Appeal to the Supreme Court
Reference and Revision (395-405)
Inherent Power of Court (482)
Transfer of Criminal Cases (406-411)
Plea Bargaining (265-A)
o Procedure For Plea Bargaining
What is an Offence?
An offence is a transgression of the law, by action or omission. That means there may be
some cases where the law requires you to abstain or refrain from performing a particular act.
There may also be cases where the law requires you to take a positive action, failing which
you may be held liable for the offence
Civil offences are against private persons (individuals like you and me) but criminal offences
are against the State. The State, represented by the Prosecutor, will argue the case against the
defendant. So now, the prosecutor will make the case against the suspect, by submitting the
issue sheet (pleadings) and the necessary evidence.
At the lower level of the judiciary the courts are called courts of Judicial Magistrate which
are of 3 types: –
Judicial magistrate
Judicial magistrate second class
Special magistrate court
At the middle level of the judiciary, the courts at the sessions level include: –
Court of sessions
Additional courts of sessions
Assistant courts of sessions
Special courts
At the higher level of the judiciary, there are the High Court and Supreme Court.
Metropolitan areas
The courts at the session’s level are referred to as metropolitan courts and they are of 2 types:
– Metropolitan magistrate courts and Special Metropolitan Magistrate
Section 6 of the Cr.P.C provides for the classes of criminal courts in every State apart from
the High Courts and the Supreme Court, namely –
Court of Session
Judicial Magistrates of the first class and, Metropolitan Magistrates in any
metropolitan areas
Judicial Magistrates of the second class; and
Executive Magistrates
The hierarchy of the Criminal Courts in India can be understood through the following chart:
The Supreme Court of India – The Supreme Court Of India being the apex court of India
was established under Article 124 of the Constitution of India.
The High Courts – Article 141 of the Constitution Of India governs the High Courts and
the High Courts are bound by the judgment of the Apex Court.
District Courts
Sessions Court
First Class Judicial Magistrate
Second Class Judicial Magistrate
Executive Magistrate
The Code under Section 3(4) separates the judiciary from the executive and states that,
subject to the provisions of the Code:
Court of Session
Section 9 of the Cr.PC empowers the State Government to establish the Sessions Court and
such court would be presided over by a Judge appointed by the High Court. The Additional
and Assistant Sessions Judges are also appointed by the High Court to exercise jurisdiction in
the Court of Session. The Sessions Court ordinarily sits at such place or places as ordered by
the High Court, but if in a case, the Court of Sessions decides to cater to the general
convenience of the parties and witnesses, then, it may, with the consent of the prosecution
and the accused preside its sittings at any other place. As per Section 10 of the Cr.P.C, the
assistant sessions judges are answerable to the sessions judge.
Section 11 of the Cr.P.C states that in every district (not being a metropolitan area), the State
Government after consultation with the High Court has the power to establish courts of
Judicial Magistrates of the first and second classes. If the High Court is of the opinion that it
is necessary to confer the powers of a Judicial Magistrate of the first or second class on any
member of the Judicial Service functioning as a Judge in a civil court, then the High Court
shall do the same.
As per Section 12 of the Code in every district other than metropolitan areas, Judicial
Magistrate of the first class shall be appointed as the Chief Judicial Magistrate. The High
Court is also empowered to designate a Judicial Magistrate of First Class as Additional CJM
and by such designation, the Magistrate shall be empowered to exercise all or any of the
powers of a Chief Judicial Magistrate.
In a sub-division, the judicial magistrate of the first class may be designated as the Sub-
divisional Judicial Magistrate. Such magistrate shall be subordinate to the Chief Judicial
Magistrate and will thus work under its control. Further, the Sub-divisional Judicial
Magistrate shall control and supervise the work of the Judicial Magistrates (except the
Additional CJM) in that subdivision.
By Section 13 the High Court is empowered to confer upon any person who holds or has held
any post under the Government, the powers conferred or conferred by or under this Code on a
Judicial Magistrate of first or second class. Such Magistrates shall be called Special Judicial
Magistrate and shall be appointed for a term not exceeding one year at a time. In relation to
any metropolitan area outside the local jurisdiction of a Special Judicial Magistrate, he may
be empowered by the High Court to exercise the powers of a Metropolitan Magistrate.
According to Section 14, the Chief Judicial Magistrate shall define the local limits of the
areas within which the Magistrates appointed under Section 11 or under Section 13 may
exercise all or any of the powers with which they may be vested under this Code. The Special
Judicial Magistrate may hold its sitting at any place within the local area for which it is
established.
The jurisdiction in case of Juveniles (Section 27)– This section directs that a juvenile
(person below the age of 16) can not be given a death penalty or a punishment of
imprisonment for life. Chief Judicial Magistrate or any other Court specially empowered
under the Children Act, 1960 (60 of 1960) tries such type of cases.
Section 15(1) provides that a Sessions Judge shall be superior to the Chief Judicial Magistrate
and the Chief Judicial Magistrate shall be superior to the other Judicial Magistrate. This can
be clearly understood by the above-mentioned diagram explaining the hierarchy of courts.
They are established in every metropolitan area. The presiding officers shall be appointed by
the High Court. The jurisdiction and powers of such Metropolitan Magistrates shall extend
throughout the metropolitan area. The High Court shall appoint Metropolitan Magistrate as
the Chief Metropolitan Magistrate.
The High Court may confer upon Special Metropolitan Magistrates the powers which a
Metropolitan Magistrate can exercise in respect to particular cases or particular classes of
cases. Such Special Metropolitan Magistrates shall be appointed for such term, not exceeding
one year at a time.
The Special Metropolitan Magistrate may be empowered by the High Court or the State
Government to exercise the powers of a Judicial Magistrate of the first class in any area
outside the metropolitan area.
Section 19 of the Code provides that the Sessions Judge shall be superior to the Additional
Chief Metropolitan Magistrate and Chief Metropolitan Magistrate and other Metropolitan
Magistrates shall be subordinate to the CMM.
The Chief Metropolitan Magistrate has the power to give special orders or make rules
regarding the distribution of business among the Metropolitan Magistrates and allocation of
business to an Additional Chief Metropolitan Magistrate.
Executive Magistrate
As per Section 20, in every district and in every metropolitan area, Executive Magistrates
shall be appointed by the State Government and one of them shall be appointed as the District
Magistrate. An Executive Magistrate shall be appointed as an Additional District Magistrate
and such Magistrate shall have such powers of a District Magistrate under the Code.
As executive magistrates are supposed to execute administrative functions they were neither
given power to try accused nor pass verdicts. They are mainly concerned with administrative
functions. The executive magistrates have the power to determine the amount of bail
according to the provisions of the warrant issued against the accused, pass orders restraining
people from committing a particular act or preventing persons from entering an area (Section
144 Cr.P.C), they are the authority to whom people are taken to when they are arrested
outside the local jurisdiction, the executive magistrates are the only one with the power to
disperse a crowd or an unlawful assembly, further, they are authorized to use force while
doing the same according to the gravity and requirements of the situation. Executive
Magistrates are assisted by the police while executing their functions.
As per Section 21, Special Executive Magistrates shall be appointed by the State Government
for particular areas or for the performance of particular functions.
Section 22 of the CrPC empowers the District Court to define the areas under which the
Executive Magistrates may use all or any of the powers which are exercisable by them under
this code but under some exceptions, the powers and jurisdiction of such Magistrate shall
extend throughout the district.
As per Section 23, the Executive Magistrates would be subordinate to the District Magistrate
however Additional District Magistrate shall not be subordinate to the District Magistrate.
Every Executive Magistrate but, the Sub-divisional Magistrate shall be subordinate to the
Sub-divisional Magistrate.
The executive magistrates shall follow the rules or special orders given by the district
magistrate, regarding the distribution of business among them. The district magistrate also
has the powers to make rules or special orders relating to the allocation of business to an
Additional District Magistrate.
Organisation
The Police Act, 1861 establishes the police force. The Act says that “the police force is an
instrument for the detection of crime and its prevention.” The Director-General of Police is
vested with the overall administration of police in an entire state, however, in a district, under
the general control and directions of District Magistrate, administration of police is done by
DSP (District Superintendent of Police).
A certificate is provided to every police officer and by virtue of such certificate, he is vested
with the functions, privileges and powers of a police officer. Such certificate will cease to be
in effect once he/she is no longer a police officer.
The Code confers upon the police officers certain powers such as the power to investigate,
search and seizure, make an arrest and investigate the members enrolled as police officers.
Extensive powers are conferred to the officer in charge of a police station.
Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor. “A person who is
appointed under Section 24 of CrPC and it also includes any person who is acting under the
directions of the Public Prosecutor.
Functions
Whenever any crime is committed against a group or individual, it is assumed that it has been
committed against society. It is the duty of the state to provide justice to any group of society
or person who is affected by the crime. In India, it is necessary that the criminal justice
system should function within the limits of the Indian Constitution, which means that it is
necessary for the Public Prosecutor to act in accordance with the principles of:
In most of the cases an accused person is a layman and is not aware of the technicalities of
law, therefore, as per Section 303, an accused person shall have a right to be defended by a
counsel of his own choice. As the accused or his family employs the pleader to defend the
accused against the alleged charges, such a pleader is not a government employee. For
ensuring a just and fair trial it is essential that a qualified legal practitioner presents the matter
on behalf of the accused. Therefore, Section 304 provides that if the accused does not have
sufficient means to hire a counsel, a pleader shall be assigned to him by the court at the
state’s expense. There are various schemes through which an accused who does not have
sufficient means to hire a pleader can get free legal aid, such as the Legal Aid Scheme of
State, Legal Aid and Service Board, Supreme Court Senior Advocates Free Legal Aid society
and Bar Association. The Legal Services Authorities Act, 1987 provides needy people with
free legal aid.
Section 154
With reference to the particular section, an officer can register an F.I.R. and take cognizance
of and arrest a suspect without seeking court’s prior approval. If she/he has a “reason to
believe” that a person has committed the offence and is satisfied that arrest is a necessary
step. Then within 24 hours of arrest, the officer must get the detention ratified by the
concerned judicial magistrate. Police officers also have a chance to conduct a preliminary
investigation before registering the F.I.R. to cross check the facts but the liability lies totally
upon him for the same. This is because if the Police Officer doesn’t register an F.I.R. at the
moment the information is received, and there is any mishappening because he was not sure
of the serious offence like murder taking place and someone loses his life will be a careless
mistake.
Charge [2(b)]
Section 2(b) of the Criminal Procedure Code defines charge as any head of a charge when the
charge contains more heads than one. The legal definition mentioned in the code is not
inclusive enough for a layman to decipher. However, the definition could simply be
interpreted to mean as an “accusation”. It is the concrete accusation as recognised by the
Magistrate or the Court, based on the prima facie evidence adduced against the accused.
Purpose of Charge
Under the Code of Criminal Procedure, an accused should be informed of the offence of
which he is charged. The basic purpose of the charge is to let the accused know of the offence
that he is charged with so that he can prepare his defence. The accused should be informed of
the charge against him at the very beginning. Every accused has the right to know what the
prosecution has against him. The underlying principle of the criminal law on informing the
accused of the charge against him is to provide an equal opportunity to each and every
individual to prepare his defence and avail justice. It must be noted that in case of serious
offences, the statute requires the charge to be reduced to writing precisely and clearly and
must be read to the accused and explained with precision and clarity.
The Magistrate can not interfere in any of his judicial capacity and as a court until he receives
the final report by the police officer as per Section 173. Also, there can be no occasion for the
Magistrate to make any judicial order about the police investigation as stated in M.L. Sethi v.
R.P. Kapur [AIR 1967 SC 528]. A Magistrate who has disposed of a police report is
competent to revise his order and require the “charge-sheet”. Where the complainant and the
accused filed complaints against each other, but there is no report filed by the police in the
court and statements in respect of the complaint made by the accused. It was held to be a
handicap to the accused in a proper projection of his defence and the accused were set at
liberty. The police “charge-sheet” correlates to the complaint made by the private individual
on which criminal proceedings are initiated. When the charge sheet is sent, the initial stage of
investigation along with the preparation. Upon the document provided by the police, the
Magistrate can take the offence into his consideration.When the Sub-Inspector of police after
making an investigation and examining as many as ten witnesses referred in the case as
“mistake of fact”, the Magistrate then by accepting the report, orders to record it as a judicial
order and that the case could not be re-opened by a Police Inspector by filing a charge-sheet
after re-investigation for the same.
Inquest report
The term ‘inquest’ has not been outrightly defined in the Code. The meaning of inquest is to
seek legal or judicial inquiry to ascertain the facts. According to the Black’s Law Dictionary,
the term ‘inquest’ means an inquiry conducted by the medical officers or sometimes with the
help of a jury into the manner of death of a person, who has died under suspicious
circumstances or has died in prison. The provisions relating to the inquest report are covered
under Chapter XII of the Code. An inquest report is made primarily to look into the causes of
unnatural death. In the case of unnatural death, the circumstances have to be examined. The
State owes a duty to its citizens to ensure their health and life. When a crime is committed, it
is committed against the State. In the circumstances of unnatural death, it is the duty of the
State to ascertain the cause of death and accordingly take further measures. This is the
purpose of an inquest report, to establish facts that can be used to apprehend and punish the
offender.
Police reports are different according to the incidents. Types of police reports include:
Arrest reports
An arrest report often called an arrest record, describes allegations or charges against an
individual. Following the arrest of a suspect, mostly by a representative of the judge who
signed the arrest warrant, the arrest report contains a victim’s claims about a perpetrator and
all the information of the suspected crime found in the initial report of the incident.
Fingerprint details may also be included in the arrest reports and also included the bail
amount if the judge establishes.
Investigative reports
When a case is opened by filing a police report, an investigation process may be conducted
by a police investigator or another investigating officer. While the Right to Information Act
(RTI) makes certain police records accessible to the public, forensic reporting is not made
available in public so as not to hinder the prosecution of an accused suspect. Parties outside
the police service can conduct their own investigations, such as insurance companies and
private investigators. However, these allegations are not subject to an inquiry by the police.
Traffic reports A police traffic report states the violation made by a driver and offence
accepted by him and includes his personal details, name, license number, tag number, and
model number of the car.
When a police report may be revised, an officer can request an additional report reflecting the
new information by updating or rectifying it. For the initial report, the reporting officer can
omit unintentionally any information or incorrectly write a typo in the report. In the case of
an accident occurred at night, any photographs taken by the officer at that time do not clearly
show the details of an accident. For this, the additional supplementary pages are added to the
initial report and mark as original report and no alteration can be done to the initial report.
Witness reports
In police interviews with traffic accidents or crime witnesses, police officers record
statements on accounts of witnesses. Such witness accounts supplement the primary incident
or injury report but are usually conducted in different ways. A big blank area of a witness
form for handing out a report about a traffic accident or injury report is also included in the
original witness report. Often, a witness will compose their account with a blank sheet of
paper. In the case of an accident or injury, the witness reports shall be made after a
subsequent interview with the victim.
Administrative reports
Police officers and organisations in the corporate business relationship sector must maintain
such administrative records comparable with non-police businesses. Such reports can include
statistical details on detention, duties, budget items, and other things every day. When a
victim or some other member of the public asks for any details on the Right to Information
Act (RTI), such requests will be reported in an administrative report and made available by a
police department official.
Investigation [2(h)]
The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal procedure,
Investigation 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 authorised by
a Magistrate in this behalf. The investigation of an offence consists of:
Rupan Deol Bajaj v. K.P.S. Gill (AIR 1996 SC 309) If the magistrate evaluates that the
accused person was wrongly released, then he has the power to take cognizance of the case
and can further orders to put the accused on trial for the same offence. But if he decides to
drop the case and there is a ‘protest petition’ the complainant has filed, the magistrate is
entitled to initiate action on the same. In this case, a senior police officer slapped a senior
lady IAS officer on her posterior at a party in the presence of an elite gathering and the
Magistrate accepted the final report without giving reasons, submitted by the police in the
case initiated by the lady officer under the Section 354/509 of IPC. Therefore, the Supreme
Court set aside the order and restored the case directing the Magistrate to continue with the
case despite the criticisms made by the complainant under Section 210 of CrPC.
Inquiry [2(g)]
We can observe that often people get perplexed regarding the usage of inquiry and enquiry
which I will clear under this article; Enquiry means to ask a question, and inquiry is a formal
investigation, enquiry though follows under the same page but has a level of difference in
them. As discussed above, the inquiry is the process of seeking information from a person
who might give some relevant information about the matter in question. Inquiry is defined
under Section 2(g) of the Code of Criminal Procedure, 1973 referring to any inquiry other
than trial under this code, conducted by a Magistrate or a Court. A Trial in every case
initiates when the inquiry ends. The work of the police officer under the Code of Criminal
Procedure, 1973 cannot be termed as an inquiry but it is understood as investigation. Section
159 of CrPC (Code of Criminal Procedure, 1973) explains an order given by the magistrate or
Court to make a preliminary inquiry in order to see whether the offence has been committed
and if so, who are the people involved in the same.
Procedure of inquiry
As we have observed in Section 154, that the police officer can only take action and
investigate in cases of cognizable offences. On the contrary, an order by a magistrate is
needed to the police officers in order to investigate non-cognizable offences.
Section 157 of CRPC deals with the procedure of preliminary inquiry which explains that
when certain information about an offence is received by the police officer and the
highlighting point of the offence is that it should be a cognizable offence, so if any
information regarding any cognizable offence is received by the police officer, he is
accountable to make the report of it and such report shall be sent to the magistrate of that
jurisdiction.
There are certain reason why the report made by the police officer shall be sent to the
magistrate of the jurisdiction which are as follows:
As the district is under the magistrate, it is his responsibility to be aware of all the
crime being committed in the district and ensure speedy disposal of the same.
A magistrate can supervise the investigation and inquiries of the police officer.
If the magistrate finds that the investigation is not being held properly he can also
give directions so that the case can be disposed of easily and justice shall be rendered
to all.
The magistrate after receiving the report shall take cognizance of the offence and
work in person or the police officer appoint an officer, not below the rank of State
government who may investigate, supervise, look up the facts and circumstances and
arrest the offender if necessary.
Trial
To further proceed with the various concepts associated with Trial in the criminal system in
India, we must learn with the very basic concept of trial. The term ‘trial’ basically means the
Court’s decision or a judicial judgement by the Court so as to decide the person’s guilt or
innocence. A trial is of a very crucial importance in a criminal case. Section 190 CrPC[v]
states those requirements that need to be accomplished before proceedings can be started by
the Magistrate, this statement basically means the power of the Magistrate to take knowledge
of a case. Section 204 of CrPC basically provides the Magistrate with the sole power of either
to take the case into consideration or to reject the case on some grounds. This section also
determines the stage whether a case can enter the stage of trial or not.
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:
The sections from 225-237 of the Criminal Procedure Code basically deals with the warrant
cases by a Court of Session.
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 handle 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 he 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 a 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 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 note
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 trial, one can easily point out the concept of ‘justice delayed is
justice denied’. A very important procedural part associated with these kinds of trials
is 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]
Section 55 of CrPC states that whenever a police officer has authorised his subordinate to
arrest any person without a warrant, the subordinate officer needs to notify the person
arrested of the substance of written order that is given, specifying the offence and other
grounds of arrest. Section 75 of CrPC says that the police officer(or any other officer)
executing the warrant should notify the substance to the person arrested and show him a
warrant if it required. Article 22(1) of the Constitution of India also states that no police
officer should arrest any person without informing the ground of arrest.
Other Rights
Section 55A of CrPC states that it shall be the duty of the person, under whose custody the
arrested person is to take reasonable care of the health and safety of the accused. The arrested
person is to be protected from cruel and inhuman treatment. Section 358 of CrPC gives rights
to the compensation to the arrested person who was groundlessly arrested. Section 41A of
CrPC states that the police officer may give the notice to a person suspected of committing a
cognizable offence to appear before him at such date and place. Section 46 of CrPC
prescribes the mode of the arrest. i.e submission to custody, touching the body physically, or
to a body. The police officer should not cause death to the person while making an arrest
unless the arrestee is charged with an offence punishable with death or life imprisonment.
Section 49 of CrPC states that the police officer should not be more restrained than is
necessary for the escape. Restraining or detention without an arrest is illegal.
In D.K Basu vs State of West Bengal and others [8], this case is a landmark judgement
because it focuses “on the rights of the arrested person and it also obligates the police officer
to do certain activities”. The court also states that if the police officer fails to perform his duty
then he will be liable for contempt of court as well as for the departmental actions. Such
matter can be instituted in any High Court having the jurisdiction over the matter.
In spite of various efforts in protecting the accused from the torture and inhuman treatment,
there are still instances of custodial deaths and the police atrocities. So, the Supreme court
issued 9 guidelines for the protection of accused persons and the amendment of various
sections of CrPC:- Section 41B– The police officer who is making an investigation must bear
visible, clear and accurate badge in which the name of the police officer along with his
designation is clearly mentioned. The police officer making an arrest must prepare a cash
memo containing a date and time of arrest which should be attested by at least one member
who can be his family member or any respectable person of a locality. The cash memo should
be countersigned by the arrested person. Section 41D:- The arrested person is entitled to have
a right to have one friend, or relative or any other person who is having interest in him
informed about his arrest. The arrestee must be informed about his right to have someone
informed about his right immediately when he is put under custody or is being detained.
Entry is to be made in the diary which shall disclose the information relating to the
arrested person and it shall also include the name of the next friend to whom
information regarding the arrest is made. It also includes the name and the particulars
of the police officers under whose custody the arrestee is. An examination is to be
conducted at the request of the arrestee and the major and minor injuries if any found
on the body must be recorded. The inspection memo must be signed by the police
officials and the arrested person.
The arrestee has the right to meet his lawyer during and throughout the interrogation.
Copies of all documentation are to be sent to the Magistrate for his record. It also
includes a memo of the arrest.
Section 41C:- The court ordered for the establishment of state and district
headquarters, the police control room where the police officer making an arrest shall
inform within 12 hours of arrest and it needs to be displayed on the conspicuous
board.
As mentioned earlier, the concept was first introduced in England. The judges in England
used to travel from place to place to hear the cases which took place from session to session.
During this, the prisoners would face a hard time because of the unhygienic prison
conditions. So the system of bail was introduced to release the prisoners awaiting trial. Later
on, the Charter of Rights, the Magna Carta was introduced in the year 1215, which gave the
right to the citizens, which stated that a man can not be convicted until he has faced the trial.
The offenses were divided into bailable and non-bailable, back in 1275 by the statute of
Westminster.The Habeas Corpus Act came in the year 1679, according to which the
magistrate can release the prisoners by taking some sort of surety. The English Bill of Rights
introduced in the year 1689 provided a shield against the excessively high amount of bail.
Currently, the Bail Act of 1976 is being followed in England.
Talking about the United States, the Bill of Rights was subsumed in its Constitution in the
year 1791. It guaranteed all the provisions related to bail. In India, the provisions regarding
bail are incorporated in the Criminal Procedural Code,1973. The Sections 436 to 450 deals
with the grant of bail and bonds, in cases of criminal nature.
Section 436
Section 436 of CrPC states that any person who is detained by a police officer, who doesn’t
have a warrant or that person is prepared in the custody of the police officer before the court
has granted him bail, shall be released on bail through a bond without any kind of sureties. If
the person has failed to follow the bail-bond then he can be refused bail. In case, the person
appears in the court, such refusal will be subject to the court and it can call that person and
impose penalty given under Section 446 of Cr.P.C.
Types of bail
Regular bail
When a person has been arrested and is kept in custody, then the person can be released on a
regular bail under Section 437 and Section 439 of the Cr.P.C.
Section 437
It states that, if any person is detained for the commission of a non-bailable offense, without
a warrant by a police officer, or when there are reasons to believe that there are not sufficient
grounds to prove that the person has committed any non-bailable offense, then he can be
released. This has to be followed in case he appears in any other court other than the Court of
Sessions or the High Court.
Even so, this person can not be granted bail if there are reasons to believe that he is guilty of
any offense punishable with a death sentence or life imprisonment or he has earlier been
convicted for an offense which was punished with punishments of the same nature.
Section 439
It gives special powers to the High Court and the Court of Sessions regarding the same. It
enables these courts to release the people on bail for the offenses specified in Section 437(3)
of CrPC. The court can impose any condition which it thinks is necessary. It further provides
that any condition which the Magistrate imposes can be set aside if the High Court has
granted bail after giving notice to the public prosecutor. The bail, in this case, should be
provided in case the offense can be tried exclusively by the Court of Sessions and is
punishable with life imprisonment.
Interim bail
Before the procedure for granting a regular bail or anticipatory bail, interim bail is provided.
It is given for a temporary period. The reason behind this is that the granting of bail by the
High Court or the Court of Session requires documents to be sent by the lower courts, which
takes time. So, for the time being, the provision of interim bail is provided. The Interim bail
can be extended and if its period expires then the person to whom it is granted has to be put in
jail again.
Anticipatory bail
Section 438 of the Criminal Procedure Code, provides the direction for a person
apprehending arrest for any reason to believe.It provides that any person who anticipates that
he can be arrested in pursuance of any accusation of committing a non-bailable crime can
apply for the grant of anticipatory bail. Application has to be made to the High Court or the
Court of Sessions. According to this Section if a person is released then there are some
conditions that will follow- The person has to be present during the investigation whenever
required, The person can not induce any person to disable him to enclose the facts against
him during the proceedings, The person shall not leave India without the prior permission of
the court. It was further provided that if any person is arrested by a police officer without a
warrant then he can be given bail.
Circumstances under which bail is given by police
When the arrest is made without a warrant
Section 43 of the Cr.P.C. provides for the arrest of any accused by a private person. The
private person after the arrest should bring the convicted person to the police station or hand
him over to the police officer as soon as possible. The police will if it thinks that the
convicted person should be released, release him. Section 56 of the Cr.P.C. enables the police
officer to bail that person out under the provision contained in this Section. Section 169 of
Cr.P.C. state that the bail can only be set when the investigation is made. Until then this
Section does not provide bail. Bail can be given by the officer-in-charge of the police station
or the police officer who is investigating. Section 170 of Cr.P.C. confers authority to give
bail, in the officer-in-charge of the police station in case the person is accused of committing
a non-bailable offense.
Section 73 of Cr.P.C. states that if the court is issuing the warrant under which it is specified
that if the person executes a bond in which he has provided sureties for appearing before the
court when the court specifies, then the police officer to whom the warrant is issued will be
allowed to give bail to the person. According to Section 81 of Cr.P.C. and Section 82 of
Cr.P.C., it is specified that if the arrest is made in the district, the police officer other than
District Superintendent of Police or the Commissioner of Police can release the accused from
custody, but in case the arrest is made out of such district then the District Superintendent of
Police or the Commissioner of Police in the area of arrest can release the convicted.
Types of bail
In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that:- “The distinction
between an ordinary order of bail and an order of anticipatory bail is that whereas the
former is granted after arrest and therefore means release from the custody of the police, the
latter is granted in anticipation of arrest and is therefore effective at the very moment of
arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An
order of anticipatory bail constitutes, so to say, an insurance against police custody
following arrest for offence or offences in respect of which the order is issued. In other
words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs
that if the person in whose favor it is issued is thereafter arrested on the accusation in
respect of which the direction is issued, he shall be released on bail.
Procedure of bail
Cases in which bail may be granted (whether release on bail is mandatory?)
In the case of bailable offence it is mandatory to grant bail to the arrested person and in case
of non-bailable offence it depends upon the discretion of the court. Section 436 of the code
talks about the cases in which bail can be taken and section 437 of the code talks about the
cases in which the bail may be taken in case of non-bailable cases.
Cases in which bail to be taken (section 436 of CR.PC)
In this case, if a person who is not guilty of any non-bailable offence and gets arrested
without a warrant by the police authority and is prepared to give bail, then it is the duty of the
police authorities to release him. The person arrested may be released on the bond without
submitting any sureties.
Introduction to CRPC
What is an Offence?
An offence is a transgression of the law, by action or omission. That means there may be
some cases where the law requires you to abstain or refrain from performing a particular act.
There may also be cases where the law requires you to take a positive action, failing which
you may be held liable for the offence
Civil offences are against private persons (individuals like you and me) but criminal offences
are against the State. The State, represented by the Prosecutor, will argue the case against the
defendant. So now, the prosecutor will make the case against the suspect, by submitting the
issue sheet (pleadings) and the necessary evidence.
District
At the lower level of the judiciary the courts are called courts of Judicial Magistrate which
are of 3 types: –
Judicial magistrate
Judicial magistrate second class
Special magistrate court
At the middle level of the judiciary, the courts at the sessions level include: –
Court of sessions
Additional courts of sessions
Assistant courts of sessions
Special courts
At the higher level of the judiciary, there are the High Court and Supreme Court.
Metropolitan areas
The courts at the session’s level are referred to as metropolitan courts and they are of 2 types:
– Metropolitan magistrate courts and Special Metropolitan Magistrate
Section 6 of the Cr.P.C provides for the classes of criminal courts in every State apart from
the High Courts and the Supreme Court, namely –
Court of Session
Judicial Magistrates of the first class and, Metropolitan Magistrates in any
metropolitan areas
Judicial Magistrates of the second class; and
Executive Magistrates
The Supreme Court of India – The Supreme Court Of India being the apex court of India
was established under Article 124 of the Constitution of India.
The High Courts – Article 141 of the Constitution Of India governs the High Courts and
the High Courts are bound by the judgment of the Apex Court.
Metropolitan Courts
District Courts
Sessions Court
First Class Judicial Magistrate
Second Class Judicial Magistrate
Executive Magistrate
The Code under Section 3(4) separates the judiciary from the executive and states that,
subject to the provisions of the Code:
Court of Session
Section 9 of the Cr.PC empowers the State Government to establish the Sessions Court and
such court would be presided over by a Judge appointed by the High Court. The Additional
and Assistant Sessions Judges are also appointed by the High Court to exercise jurisdiction in
the Court of Session. The Sessions Court ordinarily sits at such place or places as ordered by
the High Court, but if in a case, the Court of Sessions decides to cater to the general
convenience of the parties and witnesses, then, it may, with the consent of the prosecution
and the accused preside its sittings at any other place. As per Section 10 of the Cr.P.C, the
assistant sessions judges are answerable to the sessions judge.
Section 11 of the Cr.P.C states that in every district (not being a metropolitan area), the State
Government after consultation with the High Court has the power to establish courts of
Judicial Magistrates of the first and second classes. If the High Court is of the opinion that it
is necessary to confer the powers of a Judicial Magistrate of the first or second class on any
member of the Judicial Service functioning as a Judge in a civil court, then the High Court
shall do the same.
As per Section 12 of the Code in every district other than metropolitan areas, Judicial
Magistrate of the first class shall be appointed as the Chief Judicial Magistrate. The High
Court is also empowered to designate a Judicial Magistrate of First Class as Additional CJM
and by such designation, the Magistrate shall be empowered to exercise all or any of the
powers of a Chief Judicial Magistrate.
In a sub-division, the judicial magistrate of the first class may be designated as the Sub-
divisional Judicial Magistrate. Such magistrate shall be subordinate to the Chief Judicial
Magistrate and will thus work under its control. Further, the Sub-divisional Judicial
Magistrate shall control and supervise the work of the Judicial Magistrates (except the
Additional CJM) in that subdivision.
By Section 13 the High Court is empowered to confer upon any person who holds or has held
any post under the Government, the powers conferred or conferred by or under this Code on a
Judicial Magistrate of first or second class. Such Magistrates shall be called Special Judicial
Magistrate and shall be appointed for a term not exceeding one year at a time. In relation to
any metropolitan area outside the local jurisdiction of a Special Judicial Magistrate, he may
be empowered by the High Court to exercise the powers of a Metropolitan Magistrate.
According to Section 14, the Chief Judicial Magistrate shall define the local limits of the
areas within which the Magistrates appointed under Section 11 or under Section 13 may
exercise all or any of the powers with which they may be vested under this Code. The Special
Judicial Magistrate may hold its sitting at any place within the local area for which it is
established.
The jurisdiction in case of Juveniles (Section 27)– This section directs that a juvenile
(person below the age of 16) can not be given a death penalty or a punishment of
imprisonment for life. Chief Judicial Magistrate or any other Court specially empowered
under the Children Act, 1960 (60 of 1960) tries such type of cases.
Section 15(1) provides that a Sessions Judge shall be superior to the Chief Judicial Magistrate
and the Chief Judicial Magistrate shall be superior to the other Judicial Magistrate. This can
be clearly understood by the above-mentioned diagram explaining the hierarchy of courts.
The High Court may confer upon Special Metropolitan Magistrates the powers which a
Metropolitan Magistrate can exercise in respect to particular cases or particular classes of
cases. Such Special Metropolitan Magistrates shall be appointed for such term, not exceeding
one year at a time.
The Special Metropolitan Magistrate may be empowered by the High Court or the State
Government to exercise the powers of a Judicial Magistrate of the first class in any area
outside the metropolitan area.
Section 19 of the Code provides that the Sessions Judge shall be superior to the Additional
Chief Metropolitan Magistrate and Chief Metropolitan Magistrate and other Metropolitan
Magistrates shall be subordinate to the CMM.
The Chief Metropolitan Magistrate has the power to give special orders or make rules
regarding the distribution of business among the Metropolitan Magistrates and allocation of
business to an Additional Chief Metropolitan Magistrate.
Executive Magistrate
As per Section 20, in every district and in every metropolitan area, Executive Magistrates
shall be appointed by the State Government and one of them shall be appointed as the District
Magistrate. An Executive Magistrate shall be appointed as an Additional District Magistrate
and such Magistrate shall have such powers of a District Magistrate under the Code.
As executive magistrates are supposed to execute administrative functions they were neither
given power to try accused nor pass verdicts. They are mainly concerned with administrative
functions. The executive magistrates have the power to determine the amount of bail
according to the provisions of the warrant issued against the accused, pass orders restraining
people from committing a particular act or preventing persons from entering an area (Section
144 Cr.P.C), they are the authority to whom people are taken to when they are arrested
outside the local jurisdiction, the executive magistrates are the only one with the power to
disperse a crowd or an unlawful assembly, further, they are authorized to use force while
doing the same according to the gravity and requirements of the situation. Executive
Magistrates are assisted by the police while executing their functions.
As per Section 21, Special Executive Magistrates shall be appointed by the State Government
for particular areas or for the performance of particular functions.
As per Section 23, the Executive Magistrates would be subordinate to the District Magistrate
however Additional District Magistrate shall not be subordinate to the District Magistrate.
Every Executive Magistrate but, the Sub-divisional Magistrate shall be subordinate to the
Sub-divisional Magistrate.
The executive magistrates shall follow the rules or special orders given by the district
magistrate, regarding the distribution of business among them. The district magistrate also
has the powers to make rules or special orders relating to the allocation of business to an
Additional District Magistrate.
Organisation
The Police Act, 1861 establishes the police force. The Act says that “the police force is an
instrument for the detection of crime and its prevention.” The Director-General of Police is
vested with the overall administration of police in an entire state, however, in a district, under
the general control and directions of District Magistrate, administration of police is done by
DSP (District Superintendent of Police).
A certificate is provided to every police officer and by virtue of such certificate, he is vested
with the functions, privileges and powers of a police officer. Such certificate will cease to be
in effect once he/she is no longer a police officer.
The Code confers upon the police officers certain powers such as the power to investigate,
search and seizure, make an arrest and investigate the members enrolled as police officers.
Extensive powers are conferred to the officer in charge of a police station.
Section 2(u) of the Code of Criminal Procedure defines Public Prosecutor. “A person who is
appointed under Section 24 of CrPC and it also includes any person who is acting under the
directions of the Public Prosecutor.
Functions
Whenever any crime is committed against a group or individual, it is assumed that it has been
committed against society. It is the duty of the state to provide justice to any group of society
or person who is affected by the crime. In India, it is necessary that the criminal justice
system should function within the limits of the Indian Constitution, which means that it is
necessary for the Public Prosecutor to act in accordance with the principles of:
In most of the cases an accused person is a layman and is not aware of the technicalities of
law, therefore, as per Section 303, an accused person shall have a right to be defended by a
counsel of his own choice. As the accused or his family employs the pleader to defend the
accused against the alleged charges, such a pleader is not a government employee. For
ensuring a just and fair trial it is essential that a qualified legal practitioner presents the matter
on behalf of the accused. Therefore, Section 304 provides that if the accused does not have
sufficient means to hire a counsel, a pleader shall be assigned to him by the court at the
state’s expense. There are various schemes through which an accused who does not have
sufficient means to hire a pleader can get free legal aid, such as the Legal Aid Scheme of
State, Legal Aid and Service Board, Supreme Court Senior Advocates Free Legal Aid society
and Bar Association. The Legal Services Authorities Act, 1987 provides needy people with
free legal aid.
Section 154
With reference to the particular section, an officer can register an F.I.R. and take cognizance
of and arrest a suspect without seeking court’s prior approval. If she/he has a “reason to
believe” that a person has committed the offence and is satisfied that arrest is a necessary
step. Then within 24 hours of arrest, the officer must get the detention ratified by the
concerned judicial magistrate. Police officers also have a chance to conduct a preliminary
investigation before registering the F.I.R. to cross check the facts but the liability lies totally
upon him for the same. This is because if the Police Officer doesn’t register an F.I.R. at the
moment the information is received, and there is any mishappening because he was not sure
of the serious offence like murder taking place and someone loses his life will be a careless
mistake.
Charge [2(b)]
Section 2(b) of the Criminal Procedure Code defines charge as any head of a charge when the
charge contains more heads than one. The legal definition mentioned in the code is not
inclusive enough for a layman to decipher. However, the definition could simply be
interpreted to mean as an “accusation”. It is the concrete accusation as recognised by the
Magistrate or the Court, based on the prima facie evidence adduced against the accused.
Purpose of Charge
Under the Code of Criminal Procedure, an accused should be informed of the offence of
which he is charged. The basic purpose of the charge is to let the accused know of the offence
that he is charged with so that he can prepare his defence. The accused should be informed of
the charge against him at the very beginning. Every accused has the right to know what the
prosecution has against him. The underlying principle of the criminal law on informing the
accused of the charge against him is to provide an equal opportunity to each and every
individual to prepare his defence and avail justice. It must be noted that in case of serious
offences, the statute requires the charge to be reduced to writing precisely and clearly and
must be read to the accused and explained with precision and clarity.
The Magistrate can not interfere in any of his judicial capacity and as a court until he receives
the final report by the police officer as per Section 173. Also, there can be no occasion for the
Magistrate to make any judicial order about the police investigation as stated in M.L. Sethi v.
R.P. Kapur [AIR 1967 SC 528]. A Magistrate who has disposed of a police report is
competent to revise his order and require the “charge-sheet”. Where the complainant and the
accused filed complaints against each other, but there is no report filed by the police in the
court and statements in respect of the complaint made by the accused. It was held to be a
handicap to the accused in a proper projection of his defence and the accused were set at
liberty. The police “charge-sheet” correlates to the complaint made by the private individual
on which criminal proceedings are initiated. When the charge sheet is sent, the initial stage of
investigation along with the preparation. Upon the document provided by the police, the
Magistrate can take the offence into his consideration.When the Sub-Inspector of police after
making an investigation and examining as many as ten witnesses referred in the case as
“mistake of fact”, the Magistrate then by accepting the report, orders to record it as a judicial
order and that the case could not be re-opened by a Police Inspector by filing a charge-sheet
after re-investigation for the same.
Inquest report
The term ‘inquest’ has not been outrightly defined in the Code. The meaning of inquest is to
seek legal or judicial inquiry to ascertain the facts. According to the Black’s Law Dictionary,
the term ‘inquest’ means an inquiry conducted by the medical officers or sometimes with the
help of a jury into the manner of death of a person, who has died under suspicious
circumstances or has died in prison. The provisions relating to the inquest report are covered
under Chapter XII of the Code. An inquest report is made primarily to look into the causes of
unnatural death. In the case of unnatural death, the circumstances have to be examined. The
State owes a duty to its citizens to ensure their health and life. When a crime is committed, it
is committed against the State. In the circumstances of unnatural death, it is the duty of the
State to ascertain the cause of death and accordingly take further measures. This is the
purpose of an inquest report, to establish facts that can be used to apprehend and punish the
offender.
Police reports are different according to the incidents. Types of police reports include:
Arrest reports
An arrest report often called an arrest record, describes allegations or charges against an
individual. Following the arrest of a suspect, mostly by a representative of the judge who
signed the arrest warrant, the arrest report contains a victim’s claims about a perpetrator and
all the information of the suspected crime found in the initial report of the incident.
Fingerprint details may also be included in the arrest reports and also included the bail
amount if the judge establishes.
Investigative reports
When a case is opened by filing a police report, an investigation process may be conducted
by a police investigator or another investigating officer. While the Right to Information Act
(RTI) makes certain police records accessible to the public, forensic reporting is not made
available in public so as not to hinder the prosecution of an accused suspect. Parties outside
the police service can conduct their own investigations, such as insurance companies and
private investigators. However, these allegations are not subject to an inquiry by the police.
Traffic reports A police traffic report states the violation made by a driver and offence
accepted by him and includes his personal details, name, license number, tag number, and
model number of the car.
Supplemental police reports
When a police report may be revised, an officer can request an additional report reflecting the
new information by updating or rectifying it. For the initial report, the reporting officer can
omit unintentionally any information or incorrectly write a typo in the report. In the case of
an accident occurred at night, any photographs taken by the officer at that time do not clearly
show the details of an accident. For this, the additional supplementary pages are added to the
initial report and mark as original report and no alteration can be done to the initial report.
Witness reports
In police interviews with traffic accidents or crime witnesses, police officers record
statements on accounts of witnesses. Such witness accounts supplement the primary incident
or injury report but are usually conducted in different ways. A big blank area of a witness
form for handing out a report about a traffic accident or injury report is also included in the
original witness report. Often, a witness will compose their account with a blank sheet of
paper. In the case of an accident or injury, the witness reports shall be made after a
subsequent interview with the victim.
Administrative reports
Police officers and organisations in the corporate business relationship sector must maintain
such administrative records comparable with non-police businesses. Such reports can include
statistical details on detention, duties, budget items, and other things every day. When a
victim or some other member of the public asks for any details on the Right to Information
Act (RTI), such requests will be reported in an administrative report and made available by a
police department official.
Investigation [2(h)]
The term ‘investigation’ has been defined in Section 2(h) of the Code of Criminal procedure,
Investigation 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 authorised by
a Magistrate in this behalf. The investigation of an offence consists of:
Rupan Deol Bajaj v. K.P.S. Gill (AIR 1996 SC 309) If the magistrate evaluates that the
accused person was wrongly released, then he has the power to take cognizance of the case
and can further orders to put the accused on trial for the same offence. But if he decides to
drop the case and there is a ‘protest petition’ the complainant has filed, the magistrate is
entitled to initiate action on the same. In this case, a senior police officer slapped a senior
lady IAS officer on her posterior at a party in the presence of an elite gathering and the
Magistrate accepted the final report without giving reasons, submitted by the police in the
case initiated by the lady officer under the Section 354/509 of IPC. Therefore, the Supreme
Court set aside the order and restored the case directing the Magistrate to continue with the
case despite the criticisms made by the complainant under Section 210 of CrPC.
Inquiry [2(g)]
We can observe that often people get perplexed regarding the usage of inquiry and enquiry
which I will clear under this article; Enquiry means to ask a question, and inquiry is a formal
investigation, enquiry though follows under the same page but has a level of difference in
them. As discussed above, the inquiry is the process of seeking information from a person
who might give some relevant information about the matter in question. Inquiry is defined
under Section 2(g) of the Code of Criminal Procedure, 1973 referring to any inquiry other
than trial under this code, conducted by a Magistrate or a Court. A Trial in every case
initiates when the inquiry ends. The work of the police officer under the Code of Criminal
Procedure, 1973 cannot be termed as an inquiry but it is understood as investigation. Section
159 of CrPC (Code of Criminal Procedure, 1973) explains an order given by the magistrate or
Court to make a preliminary inquiry in order to see whether the offence has been committed
and if so, who are the people involved in the same.
Procedure of inquiry
As we have observed in Section 154, that the police officer can only take action and
investigate in cases of cognizable offences. On the contrary, an order by a magistrate is
needed to the police officers in order to investigate non-cognizable offences.
Section 157 of CRPC deals with the procedure of preliminary inquiry which explains that
when certain information about an offence is received by the police officer and the
highlighting point of the offence is that it should be a cognizable offence, so if any
information regarding any cognizable offence is received by the police officer, he is
accountable to make the report of it and such report shall be sent to the magistrate of that
jurisdiction.
As the district is under the magistrate, it is his responsibility to be aware of all the
crime being committed in the district and ensure speedy disposal of the same.
A magistrate can supervise the investigation and inquiries of the police officer.
If the magistrate finds that the investigation is not being held properly he can also
give directions so that the case can be disposed of easily and justice shall be rendered
to all.
The magistrate after receiving the report shall take cognizance of the offence and
work in person or the police officer appoint an officer, not below the rank of State
government who may investigate, supervise, look up the facts and circumstances and
arrest the offender if necessary.
Trial
To further proceed with the various concepts associated with Trial in the criminal system in
India, we must learn with the very basic concept of trial. The term ‘trial’ basically means the
Court’s decision or a judicial judgement by the Court so as to decide the person’s guilt or
innocence. A trial is of a very crucial importance in a criminal case. Section 190 CrPC[v]
states those requirements that need to be accomplished before proceedings can be started by
the Magistrate, this statement basically means the power of the Magistrate to take knowledge
of a case. Section 204 of CrPC basically provides the Magistrate with the sole power of either
to take the case into consideration or to reject the case on some grounds. This section also
determines the stage whether a case can enter the stage of trial or not.
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:
The sections from 225-237 of the Criminal Procedure Code basically deals with the warrant
cases by a Court of Session.
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 handle 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 he 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 a 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 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 note
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 trial, one can easily point out the concept of ‘justice delayed is
justice denied’. A very important procedural part associated with these kinds of trials
is 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]
Summon cases can be referred from the definition of the warrant case i.e., offences
punishable with death, imprisonment for life and imprisonment for the terms exceeding two
years called as warrant cases. So summon cases are those in which punishment will not
exceed imprisonment for two years. It can be said that summon cases are not of serious
nature, so it needs to be decided speedily, without dispensing the requisites of the fair trial.
The procedure to deal with such matters is 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).
Section 55 of CrPC states that whenever a police officer has authorised his subordinate to
arrest any person without a warrant, the subordinate officer needs to notify the person
arrested of the substance of written order that is given, specifying the offence and other
grounds of arrest. Section 75 of CrPC says that the police officer(or any other officer)
executing the warrant should notify the substance to the person arrested and show him a
warrant if it required. Article 22(1)of the Constitution of India also states that no police
officer should arrest any person without informing the ground of arrest.
Other Rights
Section 55A of CrPC states that it shall be the duty of the person, under whose custody the
arrested person is to take reasonable care of the health and safety of the accused. The arrested
person is to be protected from cruel and inhuman treatment. Section 358 of CrPC gives rights
to the compensation to the arrested person who was groundlessly arrested. Section 41A of
CrPC states that the police officer may give the notice to a person suspected of committing a
cognizable offence to appear before him at such date and place. Section 46 of CrPC
prescribes the mode of the arrest. i.e submission to custody, touching the body physically, or
to a body. The police officer should not cause death to the person while making an arrest
unless the arrestee is charged with an offence punishable with death or life imprisonment.
Section 49 of CrPC states that the police officer should not be more restrained than is
necessary for the escape. Restraining or detention without an arrest is illegal.
In D.K Basu vs State of West Bengal and others [8], this case is a landmark judgement
because it focuses “on the rights of the arrested person and it also obligates the police officer
to do certain activities”. The court also states that if the police officer fails to perform his duty
then he will be liable for contempt of court as well as for the departmental actions. Such
matter can be instituted in any High Court having the jurisdiction over the matter.
In spite of various efforts in protecting the accused from the torture and inhuman treatment,
there are still instances of custodial deaths and the police atrocities. So, the Supreme court
issued 9 guidelines for the protection of accused persons and the amendment of various
sections of CrPC:- Section 41B– The police officer who is making an investigation must bear
visible, clear and accurate badge in which the name of the police officer along with his
designation is clearly mentioned. The police officer making an arrest must prepare a cash
memo containing a date and time of arrest which should be attested by at least one member
who can be his family member or any respectable person of a locality. The cash memo should
be countersigned by the arrested person. Section 41D:- The arrested person is entitled to have
a right to have one friend, or relative or any other person who is having interest in him
informed about his arrest. The arrestee must be informed about his right to have someone
informed about his right immediately when he is put under custody or is being detained.
Entry is to be made in the diary which shall disclose the information relating to the
arrested person and it shall also include the name of the next friend to whom
information regarding the arrest is made. It also includes the name and the particulars
of the police officers under whose custody the arrestee is. An examination is to be
conducted at the request of the arrestee and the major and minor injuries if any found
on the body must be recorded. The inspection memo must be signed by the police
officials and the arrested person.
The arrestee has the right to meet his lawyer during and throughout the interrogation.
Copies of all documentation are to be sent to the Magistrate for his record. It also
includes a memo of the arrest.
Section 41C:- The court ordered for the establishment of state and district
headquarters, the police control room where the police officer making an arrest shall
inform within 12 hours of arrest and it needs to be displayed on the conspicuous
board.
As mentioned earlier, the concept was first introduced in England. The judges in England
used to travel from place to place to hear the cases which took place from session to session.
During this, the prisoners would face a hard time because of the unhygienic prison
conditions. So the system of bail was introduced to release the prisoners awaiting trial. Later
on, the Charter of Rights, the Magna Carta was introduced in the year 1215, which gave the
right to the citizens, which stated that a man can not be convicted until he has faced the trial.
The offenses were divided into bailable and non-bailable, back in 1275 by the statute of
Westminster.The Habeas Corpus Act came in the year 1679, according to which the
magistrate can release the prisoners by taking some sort of surety. The English Bill of Rights
introduced in the year 1689 provided a shield against the excessively high amount of bail.
Currently, the Bail Act of 1976 is being followed in England.
Talking about the United States, the Bill of Rights was subsumed in its Constitution in the
year 1791. It guaranteed all the provisions related to bail. In India, the provisions regarding
bail are incorporated in the Criminal Procedural Code,1973. The Sections 436 to 450 deals
with the grant of bail and bonds, in cases of criminal nature.
Section 436
Section 436 of CrPC states that any person who is detained by a police officer, who doesn’t
have a warrant or that person is prepared in the custody of the police officer before the court
has granted him bail, shall be released on bail through a bond without any kind of sureties. If
the person has failed to follow the bail-bond then he can be refused bail. In case, the person
appears in the court, such refusal will be subject to the court and it can call that person and
impose penalty given under Section 446 of Cr.P.C.
Types of bail
Regular bail
When a person has been arrested and is kept in custody, then the person can be released on a
regular bail under Section 437 and Section 439 of the Cr.P.C.
Section 437
It states that, if any person is detained for the commission of a non-bailable offense, without
a warrant by a police officer, or when there are reasons to believe that there are not sufficient
grounds to prove that the person has committed any non-bailable offense, then he can be
released. This has to be followed in case he appears in any other court other than the Court of
Sessions or the High Court.
Even so, this person can not be granted bail if there are reasons to believe that he is guilty of
any offense punishable with a death sentence or life imprisonment or he has earlier been
convicted for an offense which was punished with punishments of the same nature.
Section 439
It gives special powers to the High Court and the Court of Sessions regarding the same. It
enables these courts to release the people on bail for the offenses specified in Section 437(3)
of CrPC. The court can impose any condition which it thinks is necessary. It further provides
that any condition which the Magistrate imposes can be set aside if the High Court has
granted bail after giving notice to the public prosecutor. The bail, in this case, should be
provided in case the offense can be tried exclusively by the Court of Sessions and is
punishable with life imprisonment.
Interim bail
Before the procedure for granting a regular bail or anticipatory bail, interim bail is provided.
It is given for a temporary period. The reason behind this is that the granting of bail by the
High Court or the Court of Session requires documents to be sent by the lower courts, which
takes time. So, for the time being, the provision of interim bail is provided. The Interim bail
can be extended and if its period expires then the person to whom it is granted has to be put in
jail again.
Anticipatory bail
Section 438 of the Criminal Procedure Code, provides the direction for a person
apprehending arrest for any reason to believe.It provides that any person who anticipates that
he can be arrested in pursuance of any accusation of committing a non-bailable crime can
apply for the grant of anticipatory bail. Application has to be made to the High Court or the
Court of Sessions. According to this Section if a person is released then there are some
conditions that will follow- The person has to be present during the investigation whenever
required, The person can not induce any person to disable him to enclose the facts against
him during the proceedings, The person shall not leave India without the prior permission of
the court. It was further provided that if any person is arrested by a police officer without a
warrant then he can be given bail.
Section 43 of the Cr.P.C. provides for the arrest of any accused by a private person. The
private person after the arrest should bring the convicted person to the police station or hand
him over to the police officer as soon as possible. The police will if it thinks that the
convicted person should be released, release him. Section 56 of the Cr.P.C. enables the police
officer to bail that person out under the provision contained in this Section. Section 169 of
Cr.P.C. state that the bail can only be set when the investigation is made. Until then this
Section does not provide bail. Bail can be given by the officer-in-charge of the police station
or the police officer who is investigating. Section 170 of Cr.P.C. confers authority to give
bail, in the officer-in-charge of the police station in case the person is accused of committing
a non-bailable offense.
Section 73 of Cr.P.C. states that if the court is issuing the warrant under which it is specified
that if the person executes a bond in which he has provided sureties for appearing before the
court when the court specifies, then the police officer to whom the warrant is issued will be
allowed to give bail to the person. According to Section 81 of Cr.P.C. and Section 82 of
Cr.P.C., it is specified that if the arrest is made in the district, the police officer other than
District Superintendent of Police or the Commissioner of Police can release the accused from
custody, but in case the arrest is made out of such district then the District Superintendent of
Police or the Commissioner of Police in the area of arrest can release the convicted.
Types of bail
In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that:- “The distinction
between an ordinary order of bail and an order of anticipatory bail is that whereas the
former is granted after arrest and therefore means release from the custody of the police, the
latter is granted in anticipation of arrest and is therefore effective at the very moment of
arrest. Police custody is an inevitable concomitant of arrest for non-bailable offences. An
order of anticipatory bail constitutes, so to say, an insurance against police custody
following arrest for offence or offences in respect of which the order is issued. In other
words, unlike a post-arrest order of bail, it is a pre-arrest legal process which directs
that if the person in whose favor it is issued is thereafter arrested on the accusation in
respect of which the direction is issued, he shall be released on bail.
Procedure of bail
Cases in which bail may be granted (whether release on bail is mandatory?)
In the case of bailable offence it is mandatory to grant bail to the arrested person and in case
of non-bailable offence it depends upon the discretion of the court. Section 436 of the code
talks about the cases in which bail can be taken and section 437 of the code talks about the
cases in which the bail may be taken in case of non-bailable cases.
In this case, if a person who is not guilty of any non-bailable offence and gets arrested
without a warrant by the police authority and is prepared to give bail, then it is the duty of the
police authorities to release him. The person arrested may be released on the bond without
submitting any sureties.
Section 439 of the code states that any orders passed under section 436 of the code shall be
appealable.
Under section 57 of the code states that a person arrested or taken into custody has to be
released after 24 hours. Within those 24 hours, he has to be presented before the magistrate
with a notice. The period of 24 hours can be extended if the investigation regarding the
offence or crime committed has not been completed. Section 167 states that in order to extend
the period of 24 hours for the purpose of investigation prior order has to be obtained from the
magistrate. If the investigation is not completed the person arrested or detained shall be
released. The period of detention shall not exceed 90 days (in case where the offence is
punishable with the death penalty or life imprisonment) and 60 days (in case where the
offence is punishable for a term less than ten years).
The maximum period for which an under-trial prisoner can be detained (section 436-A
of the code)
Under section 436 A of the code states that the detention period for an undertrial prisoner
other than the one who is accused of the criminal offences punishable with death or life
imprisonment shall be released from detention if the person has been detained for one half of
the maximum sentence provided for the offence committed by him.
When may bail be taken in case of non-bailable offences (section 437 of the code)?
It depends upon the discretion of the court or the police officials that they may release the
person arrested for non-bailable offences until and unless there exists any reasonable grounds
or apprehension that person arrested has committed any crime and is not guilty of any
criminal liabilities which is punishable with life imprisonment or the death penalty.
Bail to require accused to appear before the next appellate court (section 437 A of the
code)
Under section 437A of the code, it has been stated that in order to appear in the higher court
as and when the higher court issues the notice against the judgment of the court it becomes
mandatory for the trial court or the appellate court which requires the accused to execute the
bail bond with sureties.
Bail bonds
A security is used to get the defendant released of who has been required to be granted bail,
basically bail is a financial arrangement that a bail bonding agency will make on behalf of a
criminal defendant. It is usually a contract in which the prisoner and one or more protection
promises that the sum charged by the court will be set that the prisoner must attend the
hearing of the charges against him if he is released on bail. The charge for the bail bond shall
also be agreed by the judges of the court that it may be only 10%-20% payable at the time of
the bail or that the full amount of the bond may be required by the court. Bail depends on the
following factors-
If a Complaint is made in writing, then the Magistrate needs to refer the following
case to the proper court for the presentation with the support for that effect.
If the Complaint is not in writing, then the Magistrate shall direct the complainant to
the proper Court.
According to this section, the collection of evidence can be done by the police officer or by
any such person who is considered to be fit and is authorised by the Judicial Magistrate on
that behalf. The main objective of the investigation directed under this section is to aid the
Magistrate in making up a decision to move towards the issue of process and this process
should not be thorough and exhaustive in nature. There need not be any investigation to be
directed if the offence is specially carried out for trial by the Court of Session which is
ultimately going to indirectly help in achieving an inquiry made by the Magistrate himself.
Moreover, in the case where the complaint has not been made by the court then there need
not be any investigation directed unless the complainant and the witnesses have been
examined on the basis of an oath. Section 465 of CrPC will not be able to cure the proceeding
in the case of directing an investigation before such examination but will spoil the proceeding
instead. The magistrate has the discretion to take or not to take any account of the witness on
the oath if the Magistrate wants to decide the case himself.
Section 202(2) of CrPC talks about the idea that in cases of offences which are entirely triable
by the Court of Session the inquiry should be Broad-based in nature whereas unlike in the
cases left on the discretionary action of the Magistrate. This broad-based inquiry is led by the
Magistrate only in the situation where he is unable to make his mind whether to dismiss the
complaint or proceed further to issue a process upon the complaint. In the case of trial by the
Court of Session, it is explicitly required by the Magistrate to call upon the complainant along
with all his witnesses and examine them on oath and here the word ‘All’ means all of them
not ‘some’. This provision helps the accused person to prepare him for defence with respect
to the accusations put on him by the complainant and examination of all the witnesses is not a
mere formality. Under Section 202 there is no provision provided to compel the complainant
to be present in the court during the Examination of the witnesses on oath and especially
when the complainant has been already examined on oath. Dismissal of the complaint by the
Magistrate in such a situation will be considered illegal.
The examination of the complainant is an initial process that strengthens the entire
proceedings. This process adds credibility to complaints in the beginning stages. It is
necessary to scrutinize the complaint before issuing the process. Chapter XVI would come
into play only after this examination is over. The locus standi of the complainant is verified
using this examination. The Magistrate will also verify whether the complainant would come
under the exceptions provided in Section 195 to Section 199. The magistrate can issue the
process without postponing: when the prima facie case is made out in the investigation. This
process of scrutinizing the complainant has to be done by the Magistrate himself and not by
the advocate, however, the concerned advocate can help in the process. Section 190 of the
Code of Criminal Procedure provides the condition to take cognizance of offences by
magistrates.
The Magistrate can scrutinize the complaint and examine it completely before issuing a
process.
Examination of complainant
Section 200 of the Code of Criminal Procedure deals with the examination of the
complainant. The magistrate after taking cognizance of an offence has to examine the
complainant and witnesses present. This examination has to be done upon oath. The
magistrate also has the duty to note down the relevant information found in such
examination. The substance of such examination should be given in writing and that has to be
signed by the complainant and the witnesses. The magistrate need not conduct this
examination when:
1. If the complaint is made by a public servant who is acting or purporting to act in the
discharge of his official duties or a Court;
2. If the Magistrate makes over the case for enquiry or trial to another Magistrate under
Section 192.
If the magistrate in charge has examined the case and makes over the case for enquiry or trial
to another magistrate, then the latter magistrate does not need to examine the cases again.
Trial Proceedings
The general principle regarding charges as purported by Section 218 of the Code Of
Criminal Procedure, 1973 is that every offence of which a particular has been
accused shall come under a separate charge and each such charge shall be tried
separately and distinctly. This means that each offence has to be treated as a separate
entity and should be tried distinctively.
But, Section 218(2) carves out exceptions to Section 218(1). The provisions of
Section 219, 220, 221 and Section 223, override the provisions as mentioned under
Section 218 of the Code Of Criminal Procedure. This means that Section 219- 223
talks about joinder of charges
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. But,
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.
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.
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. 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 same. 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.
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-
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.
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.
This type of case is filed as an FIR in the police station and is the first step in the process of
warrant cases instituted on a police report. The case is then forwarded to the Magistrate.
When any case is instituted on a police report, and the accused is brought or appears
voluntarily before the Magistrate, the Magistrate shall satisfy himself for complying with the
provisions of Section 207. And Section 238 to 243 of CrPC lays down the procedure of trial
of warrant cases instituted on a police report and the steps are mentioned below.
The initial steps involve the filing of an FIR. Once the FIR is filed in the police station, an
investigation is conducted to discover the facts and relevant details of the case. Once the
investigation is completed, a charge-sheet is filed and the documents are forwarded by the
police station to the Magistrate. The steps in warrant cases instituted on police report are:
Supply of copy of police report to accused in compliance with Section 207. (Section
238)
Discharge of accused on baseless charges. (Section 239)
Framing of charges. (Section 240)
Conviction on a guilty plea. (Section 241)
Evidence for the prosecution. (Section 242)
Evidence for defence. (Section 243)
A copy of the police report and other documents relevant to the case should be supplied to
any person or persons who appears or is brought before a magistrate at the commencement of
the trial. And the Magistrate shall satisfy himself in complying with the provisions of Section
207. This is to ensure that the accused are aware of the charges against him and can prepare
for defence under fair trial by law.
Once the Magistrate receives the police report and other relevant documents and provides
them to the accused, the Magistrate shall consider each report. A hearing shall be convened
and a reasonable opportunity shall be provided for both the accused prosecution to present
their case. The Magistrate examines the accused if necessary. If the charge against the
accused is discovered to be baseless and lacking in substance, the accused shall be discharged
under Section 239. The prima facie of the case is also considered. In the case of State vs
Sitaram Dayaram Kachhi, 1957, the accused, Sitaram was acquitted under Section 239.
Framing of charge
Section 240 of CrPC authorises the Magistrate to consider the police report and even to
examine the accused if he feels the need to. If the Magistrate feels the presence of valid
grounds to presume that the accused has committed the offence and is capable of committing
such an offence, and he is competent to try the offence to adequately punish the accused in
his opinion. Then the written charge is framed against the accused and the trial is conducted
after the charge is read and explained to the accused. Framing of the charge is a duty of the
court and the matter must be considered judiciously.
In the case of Lt. Col. S.K. Kashyap V. The State Of Rajasthan, 1971, the accused files an
appeal challenging the authority of the special judge appointed to hear the case. The appeal is
failed and dismissed and the case proceedings are continued.
Clause 2 of Section 240 describes that the charge against the accused shall be read and
explained to the accused. Once the accused understands the charges against him, he shall be
asked whether he pleads guilty of the offence or wishes to challenge the charge by a fair trial
under the law.
The accused can plead guilty to cut short the procedure of law and reduce the punishment for
his offence. The Magistrate records the guilty plea and convicts the accused on his discretion.
(Section 241)
Section 242 of CrPC defines the procedure with regards to the gathering of evidence against
the offender and recording the evidence after examination and cross-examination to acquit or
convict an accused individual. In a criminal trial, the case of the state is presented first. The
burden of proving the accused guilty is on the prosecution and the evidence must be beyond a
reasonable doubt. The prosecution can summon witnesses and present other evidence in order
to prove the offence and link it to the offender. This process of proving an accused individual
guilty by examining witnesses is called examination in chief. The Magistrate has the power to
summon any person as a witness and order him to produce any document. State vs Suwa,
1961 is a case where the orders of the Magistrate to acquit the accused were set aside and a
retrial was ordered by sending the case to a District-Magistrate who sent them for a trial to a
Magistrate other than the one that tried the case originally.
Section 243 of CrPC describes the procedure with regards to collecting and presenting
evidence in the defence of the accused. After the prosecution is finished with the examination
of the witness, the accused may enter his defence in a written statement and the Magistrate
shall file it with the record. Or defence can be produced orally. After the accused has entered
his defence, an application may be put to the Magistrate to perform cross-examination of any
witness presented by the prosecution. The Magistrate may then summon any witness under
Sub-section 2 to be cross-examined by the defence. The prosecution must establish the case
beyond a reasonable doubt and if the defence can prove a reasonable doubt then the evidence
submitted by the prosecution is not valid and cannot be recorded in court against the accused.
Summary Trial
The legal provisions governing summary trials under the Code of Criminal Procedure, 1973
are Section 260 to Section 265. Under Section 262 of the Code of Criminal Procedure, 1973,
the procedure for summary trials has been laid down.The procedure followed for summon
cases has to be followed for summary cases as well. The exception in summary trials is, that a
sentence exceeding the duration of three months cannot be passed in case of conviction under
this Chapter.
For a criminal procedure to begin, the first step is to file an FIR or a complaint. This is
investigated upon by the police and evidence is collected. At the end of the investigation, a
charge sheet is filed by the police. This is also called the pre-trial stage.
The accused person is then taken before the Magistrate who orally reads the particulars of the
offences to the accused. In summons and summary trials, a formal charge is not written
down.
The Magistrate after stating the particulars of the offence committed asks the accused if he
pleads guilty or not. If the accused person pleads guilty, the Magistrate makes a record of the
statement of the accused and then proceeds for conviction.
If the accused does not plead guilty, the trial begins. The prosecution and the defence are
given an equal opportunity to put their case forward. The Judge may then decide the acquittal
or the conviction of the accused.
In summary cases, the difference lies at this juncture. If the Judge delivers a judgment of
conviction of the accused – the maximum sentence that can be passed for imprisonment is
three months.
The procedure to formulate a record in summary trials is laid down in Section 263 of the
Code of Criminal Procedure, 1973.
In all summary cases, the Magistrate has the duty to enter the following particulars, in the
following format prescribed by the State Government:
Section 264 of the Code of Criminal Procedure, 1973 lays down how a judgment should be in
cases which are tried summarily. The Magistrate has the duty to record the substance of the
evidence along with a judgment containing a brief statement of the reasons for such finding,
in all summarily tried cases where the accused does not plead guilty. Under Section 326(3) of
the Code of Criminal Procedure, 1973 the use of pre-recorded evidence by a successor judge
is barred in the instance when the trial has to be conducted summarily, according to Section
262 to 265 of the Code.
In Shivaji Sampat Jagtap vs. Rajan Hiralal Arora, it was held by the Bombay High Court
that if the procedure mentioned in Section 263 and Section 264 of the Code has not been
particularly followed, then the succeeding Magistrate does not need to hold a trial de novo. In
this case, the petitioner filed a complaint under Section 138 of the Negotiable Instruments
Act,1881. The Magistrate issued the process, summons to the accused was served and
consequently, his plea was recorded. But before the Magistrate could deliver the judgment, he
ceased to have jurisdiction and was succeeded by another Magistrate. The new Magistrate
delivered a judgment on the basis of evidence which was recorded by his predecessor. An
appeal was filed that the new Magistrate should have conducted a de novo trial as
contemplated under Section 326(3) as the predecessor had conducted the case as a summary
trial. As this was not done, it was contended that the entire proceeding was vitiated. The
Sessions Court then quashed the conviction. Therefore, this revision application was filed. It
was held by the Court that the present case was not tried summarily. It was, in fact, tried as a
summons case. Therefore, the impugned judgment was quashed.
Initial Stage
It is very simple and easy to understand the initial stage with the help of the illustration– In a
courtroom, the public prosecutor will act as one side and the accused person will be the other
party in the matter. Here, the court expects that all the necessary documents need to be given
to an accused person in advance so he has a clear idea why the trail is being taken place.
Public Prosecutor is appointed under Section 24 of the Act, who is acting under the direction
of such prosecutor.
When the case is brought under Section 209 of the CrPC then in those condition public
prosecutor needs to present the piece of evidence so the trail can be started without any delay.
All the details regarding what all charges are framed against him need to be mentioned in a
court of law. After this stage, if magistrate feels that there is no case regarding the accused
person then he will be discharged.
If the accused person pleads his guilt then he will be punished as per the nature of
punishment and he will get convicted and if he did not plead then the court will fix a date for
going through a further process like examination of a witness, production of any document
etc. He needs to plead guilty from his own mouth, not by his pleader. Any admission made by
his leader is not binding in nature.The court needs to have all pieces of evidence which are
presented in the case and during the cross-examination stage.
It is the last stage where the accused person is either convicted or acquittal. The court may
acquit the accused person if no evidence is laid down which indicate the involvement of the
accused in committing the Act. If no acquittal took place then, accused get the opportunity to
present his case through writing or any other means he can produce evidence, witnesses to
defend himself just like the way prosecution did it. An omission on the part of the Judge is
the failure of justice. An accused person can apply for an application for compelling the
attendance of a witness, all such application needs to be accepted by the court. He can only
deny in a situation where he is sure that such application is vexatious in nature just to waste
the precious time of the COURT
Section 251 provides that it is not mandatory to frame charges but the section does not
dispense with the explanation of the particulars of the offence when accused is brought or
appear before the Court. This is done to make the accused cognizant for the allegations made
against him. If in case unable to convey the particulars than this will not vitiate the trial and it
will not lead to the prejudice with the accused as this irregularity is remediable under section
465 of the code[3]. Under section 251 courts shall ask the accused whether the accused
pleads guilty, and section 252 and 253 needs to comply for conviction on such plea of guilty.
Section 254 provides about both prosecution and defence case if the accused not convicted on
plea under section 252 and 253.
Prosecution case
The magistrate will hear the accused and take all the evidence. In the hearing, the prosecution
will be given chance to open its case by putting facts and circumstances which constitute the
case and by revealing the evidence which he relied upon to prove the case. The magistrate on
the application of the prosecution, serve summon to any witness to attend and to produce any
document or thing. The magistrate will prepare the memorandum of the evidence according
to section 274. Same as other trials in summon cases also the magistrate will comply with
section 279 i.e., interpretation of evidence to the accused and 280 i.e., recording of the
demeanor of the witnesses.
After the prosecution evidence under 254 and examination of defence under section 313, in
the continuance of this, the court will proceed with the defence hearing under section 254(1).
In the hearing of the defence means accused will be asked for accused say against the
prosecution evidence. Failure of hearing of the accused in any case will amount to the
fundamental error in the criminal trial and it can not be cured under section 465. Evidence
produced by the accused will be recorded in the same manner as in case of prosecution under
section 274, 279, 280. After the submission of the evidence of the defence, he will be allowed
to submit his arguments under section 314.
Acquittal or conviction
After recording the evidence under 254 the magistrate will acquit the accused if he finds the
accused not guilty. If the accused is guilty than Magistrate shall proceed according to Section
360 or 325 otherwise, sentence him according to the law. According to section 256 on the
date fixed for the appearance of the accused nonexistence of the complainant will empower
the court to acquit the accused unless the court has the reason to adjourn the case to some
other day. Section 256(1) is also applicable in case of the death of the complainant↓. In case
the representative of the dead complainant does not appear for 15 days where the defendant
appeared, the defendant can be acquitted held by the Supreme Court.[4]
Judgement and Sentences under the Code
Judgement (353-360)
Form and contents of the judgment under Section 353 In a judgement Ratio decidendi and
Obiter dicta form an integral part. Ratio decidendi is the binding statement in judgement and
Obiter Dicta is the “by the way” remarks delivered by the judge which is not necessary to the
case at hand. These two are very important as they define the legal principles which are
useful to the legal fraternity.
Whether the evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove it beyond a reasonable doubt.
If the act or omission from which the liability might arise doesn’t exist.
The essential elements of the offence committed by the accused and the intervening
circumstances which led to the commission of this offence.
Participation of the accused as the principal perpetrator, or accomplice or accessory.
The penalty that is imposed on the accused.
Under Section 354, of CrPC, it is stated that every judgement should be:
In the language of the Court, Shall contain the points of determination and the reason
for the same.
The offence should be specified and the reason for the same should be given for the
same. The offence so committed must be mentioned in the IPC or any other law under
which the crime is committed and the punishment is given.
If the offender is acquitted, the offence for which he was acquitted, the reason for the
same and it must be specified that a person is now a free man.
If the judgment is passed under the IPC and the judge is not certain as to under which
Section the offence is committed or under which part of the Section, the judge should
specify the same in the judgement and should pass orders in both the alternate
situations.
The judgement shall furnish a proper reason for the conviction if it is a sentence for a
term of life imprisonment and in case of death sentence the special reason has to be
given.
Under Section 355 of the CrCP, it is mentioned that the judge instead of giving the judgement
in an above-mentioned way, can deliver it in an abridged version that would contain-
The serial number of the case,
Date of the commission of the offence,
Name of the complainant,
Name of the accused person, his parentage and residence,
Offence complained of or proved,
Plea of the accused and his examination,
Final order,
Date of the order,
In cases where the appeal lies from the final order, a brief statement of reasons for the
decision.
Sentence of imprisonment
Under Section 354 of the CrPC, when the conviction is for an offence punishable with
imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of the death sentence, the special reasons
for it. Moreover, when the conviction is for an offence punishable with imprisonment for a
term of one year or more, but the Court imposes a sentence of imprisonment for a term less
than three months, it shall record its reasons for the same, unless the sentence is one of
imprisonment till the rising of the Court or the case was tried summarily.
Sentence of fine
Under Section 357 of the Code, when a Court imposes a sentence of fine or a sentence in
which fine is also included then the Court while passing judgment may order the whole or
any part of the fine recovered to be applied:
If the fine is imposed in a case which is appealable, no such payment shall be made before
the period allowed for presenting the appeal has lapsed, or if an appeal is presented then
before the decision of the appeal is delivered.
Under Section 358, it is stated that in case a person compels the police to arrest another
person, which the Magistrate thinks that there is no ground for such arrest, the Magistrate
may order compensation not exceeding Rs 1000, to be paid by the person who causes such
arrest. The fine is given as a way of compensation for the loss of time and expenses or other
matter, as the judge may think fit. If more than one person is arrested on such basis, then each
of them should be awarded a compensation not exceeding Rs 100, as the Magistrate thinks
fit. Such compensation shall be recovered as a fine and if the person does not pay the
compensation then the Magistrate can sentence him to imprisonment not exceeding 30 days
unless the compensation is sooner paid.
The death penalty is the highest level of punishment and it follows the principle of ‘rarest of
rare’ (uncommon crime or that is unusual to a person of ordinary prudence, the one which
shocks and causes tremors throughout the judiciary and the society). This section works as a
precautionary step to minimize the error while meeting the ends of justice.
The case of Bantu Son of Vidya Ram Bediya vs State Of U.P. (2006) was submitted to the
Allahabad High Court from Agra’s Sessions Court under Section 366 of CrPC. The accused
had committed the offence of rape, murder and kidnapping. The rape was so gruesome that
during the postmortem a stem of more than a feet was retrieved from her vagina which was
inserted by the accused while committing the offence. Allahabad High Court upheld the death
penalty of the accused stating that it was the rarest of rare case.
Further Sections provide the powers the High Court has in regard to cases submitted under
Section 366 of the CrPC.
Sub-section (2) of Section 367 provides that the convict can be directed to dispense his/her
presence during such inquiry or taking of the evidence unless the High Court otherwise
directs.
Sub-section (3) of Section 367 provides that if the Sessions Court (authority other than the
High Court) makes the enquiry or takes into consideration such evidence then it shall be
certified by the Sessions Court.
In the case of Balak Ram Etc vs The State of U.P. (1974) the Supreme Court in the final
judgment stated that High Court had failed in properly considering the pieces of evidence of
the prosecutor’s witnesses and held that while inquiring against a death penalty case or taking
into consideration different pieces of evidence, the High Court shall take into consideration
all the pieces of evidence itself as it is its duty.
confirm the sentence passed by the Sessions Court, or pass a sentence other than the
one provided it is warranted by the law, or
annul the conviction passed by the Sessions Court, and instead either convict the
accused under any other offence for which the Session’s Court had convicted him/her
or order for a trial on an amended charge or on the same charge, or
acquit the accused of the charges made against him.
The proviso to the section states that till the time the limitation period to file an appeal
against the verdict is not expired, or the appeal is still pending or is not disposed of, the Court
cannot pass an order of confirmation. In the case of Kartarey and Ors. vs The State of Uttar
Pradesh (1975), the Sessions Court had passed the verdict announcing the death sentence
which was later altered by the High Court. When the case reached the Supreme Court it was
observed that the High Court has committed a grave error in examining the evidence or
additional evidence. It states that it is the duty of the High Court to ‘reap-praise’ the evidence
in totality and it shall come to a conclusion on the merits of the case only after considering
the proceedings in all their aspects. It is important and crucial to consider the defence
evidence equally and not to neglect it as this is contradictory to the settled rule of practice and
law.
the sentence, or
any new sentence, or
any order.
Passed by the High Court shall be ‘made, passed and signed’ by either two or more judges. It
is an essential condition that cannot be ignored.
General Provisions as to Inquiries and Trial
Mode of taking and Recording Evidence
Section 272 to 283 of CrPC read with rules under Chapter XII of General Rules and Circular
Order Volume I, explains the Mode of taking and recording Evidence in criminal cases. The
following are the modes of recording evidence:
Section 273– It is mandatory to record all the evidence only in the presence of the accused
when his personal attendance has been dispensed, the evidence must be recorded in the
presence of a pleader.
Section 274– Magistrate shall record a memorandum of the substance of evidence in the court
language and must be signed by the Magistrate.
Section 275(1)– In all the warrant cases, the evidence of each witness shall be in writing by
Magistrate or under his direction if the Magistrate is unable to do so due to some physical or
other incapacities, under his direction and superintendence, by the officer of the court who is
appointed by the Magistrate on his behalf. The evidence under this subsection is to be
recorded by audio-video electronic.
Section 275(3)– This section permits the Magistrate to record evidence in question and
answer form.
Section 276– In Session Court, the recording should be done in a narrative form. The
presiding officer at his discretion can take down any part of the evidence in question and
answer format which has to be signed by him
Section 278– When the evidence of a witness is completed, it should be read over to the
accused or his pleader. This shouldn’t be done at the end of the day when all the witnesses
have been examined. The evidence if needed can be corrected by the accused.
Section 280– The presiding judge or magistrate is empowered to record the remarks.
Marking of Exhibits
Some evidence shall be submitted by the prosecution, this evidence has to be marked with the
number in the order in which they are submitted. The documents that are admitted on behalf
of defence shall be marked with capital letter alphabets. If in case neither party does not
accept the evidence then the evidence shall be marked as Ext C-I, C-II etc.
If more than one number of documents are of similar nature, then the small letter or small
number is added in order to distinguish each document in the series. After the evidence is
proved and admitted it shall be marked with a Roman number. Example MO-I, MO-II etc.
the bench clerk of the court shall prepare the list of articles which shall be signed by the
Judge.
Cases
Javer Chand and Ors. V. Pukhraj Surana, 1961
In this case, it was held that the Court does not proceed further whenever an objection is
raised in the court without passing any order on such an objection. If there is an objection on
the stamp duty of a document, then objection will be decided then and there before
proceeding further.
In this case that accused was convicted for an offence under Section 302 of IPC and was
subjected to a death sentence. The conviction was set aside evidence was not recorded in his
presence, later the case was remanded back for trial.
Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence
without the confirmation of the High Court, till that time the convict has to be in jail custody.
The High Court, under Section 368 of the CrPC, looks into the case. The High Court can:
Any order received by the Session Court from the High Court has to be executed by the
Session Court by way of issuance of a warrant. (Section 413 of the CrPC). Execution of
sentence of death passed by High court. Under Section 414 of the CrPC, if the High Court,
passes the order of death sentence in appeal or revision, the Session Court has to carry on the
order by issuing a warrant.
The Constitution of India, vests a large amount of sovereign power in the President and the
Governor. Centre and the State are governed in the name of President and Governor
respectively. Under Article 72 of the Indian Constitution, the President has the power to
pardon, remit, suspend or commute any sentence.Under Article 72, the President has the
power to pardons, reprieves, respites or remission of punishment or to suspend remit or
commute the sentence of any person convicted of any offence:
In cases where the punishment is given by the court-martial. The Governor’s power to
remit, suspend or commute the sentence under the laws of the State, shall be given
precedence.
In cases where the power of executive extends.
In cases where the punishment is a death sentence.
Similarly, under Article 161 of the Constitution of India, these powers are conferred on the
Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend,
remit or commute the sentence, which is given on the basis of the laws prevalent in the State,
to which the executive power of the State extends. The difference between the pardoning
power of the President and that of the Governor is that the Governor does not enjoy the
power to grant pardon to a death sentence.
However, this power of the President is not absolute and depends on the consultation with the
council of ministers. This is not present in the Constitution but practically this process is
followed. Further, the Constitution does not provide for any mechanism to check the legality
of the decision taken by the President and the Governor while exercising their mercy power.
However, in the case of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway is
provided for judicial review of the mercy granting power of the President and the Governor
to rule out any sort of arbitrariness.
Commutation of sentence
In contrast to Suspension and Remission, which only affect the duration of the punishment
without interfering with the nature of the punishment, Commutation, on the other hand,
changes the nature of the punishment and converts it into a less severe form of punishment.
There is nothing to restrict the government to commutate a sentence, even if it is as low as a
fine. Under Section 433 of the CrPC, the appropriate government gets the power to
commutate the sentence in an appropriate case. Various sentences are eligible for
commutation, one of them is death sentence i.e.mercy plea.
Commutation of death sentence has always been in the controversy, it raises an issue
regarding the basic human rights of the accused and on the other hand the impact of the grave
crime on the society. Section 433 of the CrPC gives the power to the government to
commutate the death sentence to a simpler sentence.
Most of the convicts of the death sentence, get their sentence reduced to 14 years of life
imprisonment in accordance with the provisions of CrPC.
Miscellaneous
Appeals (372-394)
An appeal is a tool given to the parties of a case to ensure justice is served and all the parties
are satisfied by the judgment. After hearing all the parties in a case, a competent court
pronounces the judgment and if the parties are not satisfied with the judgment they have a
right to appeal to a higher court. Such an appeal would give the aggravated party another
opportunity to present their case to a higher authority or the Appellate Court who would
judge the case with a fresh perspective and if there are any wrongdoings, they would be
corrected. When the verdict is unreasonable or not supported by evidence, or when there is
miscarriage of justice on any grounds, then such a verdict can be appealed.
As already discussed appeal is neither an inborn right nor a vested right, but one which is
given by the statue itself. If there is no provision allowing an appeal for a case, then such an
appeal would not be allowed.
As per Article 132(2) of the Constitution of India, if the High Court is satisfied that there is a
substantial question of law which is in question, then an appeal can be made to the Supreme
Court from any judgment, decree or final order from any High Court within the territory of
India.
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.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 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:
An accused is to be given due opportunity to hear him and on order cannot be passed
unless this is followed.
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.
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.
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 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 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”
“Nothing in this code shall be deemed to limit or affect the inherent powers of the High court
to make such orders as may be necessary to give effect to any order under the Code, or to
prevent abuse of the process of any court or otherwise to secure the ends of justice”.
Sec 482 of the CrPC deals with the inherent powers of the court. This section was
added by the Code of Criminal Procedure (Amendment) Act of 1923, as the high
courts were unable to render complete justice even if the illegality was apparent. The
inherent jurisdiction may be exercised under this section, except under 3
circumstances, namely:
To secure the ends of justice.
To prevent abuse of the process of the court.
To give effect to an order under CrPC.
The jurisdiction is completely discretionary. The High Court has the power to refuse
to use its power.
The jurisdiction of High Court is not limited only to cases that are pending before the
High Court, and it can consider any case that comes to its notice (in appeal, revision
or otherwise).
Under Section of 248 of CrPC, when the aggrieved party is being unnecessarily
harassed, then this power can be implored if he has no other remedy open to him.
The High Court does not conduct a trial or appreciate evidence. This power of High
Court is limited to cases that compel it to intervene for preventing a palpable abuse of
a legal process.
The High Court has the right to provide relief to the accused even if he or she has not
filed a petition under section 482.
If any trial is pending before the apex court, and has been directed to the sessions
judge for the issuance a non- bailable warrant regarding an arrest of the Petitioner(s),
this power of High Court can not be exercised.
Section 482 of the CrPC specifies that the inherent power is not intended to scuttle
justice at the threshold, but to secure justice.
This power has to be exercised sparingly with circumspection and in the rarest of rare
cases, but it cannot be said that it should only be exercised in the rarest of rare cases.
The expression rarest of rare case may be exercised where death penalty is to be
imposed under Section 302 of IPC but this expression cannot be extended to a petition
under Section 482 CrPC.
Any proceeding if it finds that initiation to abuse of the process of Court, Court would
be justified to the quashing of these proceedings.
As long as the inherent power under Section 482 of CrPC is in the statute, the exercise
of such power is not impermissible.
The power granted by the Code under Section 406 to the Supreme Court is purely
discretionary in nature and the applicant is under no obligation to conclusively establish that
in case the transfer does not take place then fair justice will not take place and the applicant is
only expected to reasonably substantiate the contentions made by him under the application
he has submitted to the Supreme Court. The application under Section 406 of the Code is
made by the interested party should always be in the form of motion supported by an affidavit
or affirmation, except in the cases where the applicant is the advocate general or attorney
general of the country.
The power of the Supreme Court to transfer the cases and appeals also extends to the transfer
the cases from any subordinate court in the country where any matter is pending. However,
the court where the case is pending can ensure that the Supreme Court, while transferring the
case is taking all the measures to uphold fairness and principles of natural justice. The parties
in any suit are always guaranteed the opportunity to bring to the notice of any court with
appropriate jurisdiction that there are reasonable grounds which uphold the apprehension in
the mind of the person that certain factors inhibit his right to a fair trial.
In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an application for the
transfer of a case on the contention that he was under the apprehension that he wouldn’t be
able to engage a counsel in the court where a case against him was already pending in the
case. However, the District Bar Association submitted an application assuring the court that a
defence counsel from among the members of the Bar Association would be made available to
the applicant. The Supreme Court held the application to be invalid dismissing the prayer for
the transfer.
In Sukhdev Singh Sodhi vs The Chief Justice And Judges of The PEPSU High Court, the
court held that the power of transferring of cases with the Supreme Court does not extend to
transfer of any contempt proceeding which is pending before the High Court.
The power of transfer of cases and appeals is not only discretionary but is also limited as
Section 406 does not clothe the Supreme Court with the power to transfer investigation
pending before one police station to another for the only reason being the forwarding of FIR
to the court. In cases where the Supreme Court is of the opinion that the application made is
frivolous in nature and is devoid of any substantial claim then it may order the party which
came up with the application to pay compensation of not more than one thousand rupees to
the party which opposed such application.
In Kaushalya Devi v. Mool Raj, the Supreme Court held that in cases where the application
of transfer of the case is made but the Magistrate dealing with the case opposes the
application by himself filing an affidavit then the transfer of the case, without any doubt in
the complete interest of justice because in all such cases the essentials of fair and impartial
trial are already put to peril which is signified by the personal involvement of the judge
himself.
To uphold the spirit of justice: The ultimate goal of any judicial system on the earth
is the deliverance of justice and protection of the rights of every person. The courts
are highly revered institutions of justice with people having high expectations of
justice which is sought after by the aggrieved party. Therefore, the court is under high
moral obligations for keeping the machinery of justice, equity and good conscience
alive.
Recommendations made by the superior judicial officers: The courts while
deciding whether to transfer the cases and appeals from one court to another takes into
consideration the inquiries and findings as revealed by the reports carried on by the
senior judicial officers such as Chief judicial magistrate or any sessions judge.
Upon request by the trial court: Where the court before which the matter is pending
deems the case to be outside its scope of jurisdiction due to involvement of a
substantial question of law which is outside its purview. It may request the higher
judiciary to transfer the case.
Lack of complete jurisdiction: In certain cases, the court has limited jurisdiction
over the subject matter of the case before it. In such cases of shared or limited
juridical issues, the court trying the case has the liberty of transferring the case to the
court which possesses the conclusive jurisdiction of trying the matter. This process
ensures that complete justice has been done to the parties before the court.
Differences between the party and the judicial officer: In circumstances where
there is already a presence of differences between the judicial officer and any of the
party the chances of an unfair and partial trial being carried out are relatively higher.
Therefore, the party apprehending such consequences of carrying on of the trial is
granted the opportunity by the judicial system to apply for transfer of the case.
Infringement of principles of natural justice: Where the proof of continued
contravention of the principles of natural justice by any court or judicial officer is
rendered by a party to the Supreme Court, then in order to uphold the principles of
natural justice, the court may order the transfer of the case.
The very purpose of Criminal law is the free and fair dispersal of justice which is not
influenced by any extraneous considerations. Section 407 of the Code of Criminal Procedures
enables the party to seek for transfer of case anywhere within the state while Section 406 of
the Code enables the party to seek transfer of the case anywhere in the country.
The High Court has the authority to transfer the cases when it is satisfied that:
The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian
Constitution can not be exercised by any of the party to the suit if the case is tried by any of
the courts which is subordinate to it; Certain questions pertaining to the present matter in the
court are of unusual difficulty; The transfer of the appeal or the case is made inevitable by
any of the provisions under the Code; The order of transfer will be in the interest of the
general convenience of the parties or witnesses involved in the suit.
The above statement, written by Warren E. Burger, in an address to the American Bar
Association point to the importance of timely justice in a free society. The biggest problem
that Indian justice system is facing is the huge backlog of cases. Noted jurist Nani Palkiwala
rightly said, “The law may or may not be an ass, but in India, it is certainly a snail”. More
than three crore cases are languishing in the Courts for various reasons. .One of the major
reason behind this abysmally low disposal of cases by Judiciary is the lack of number of
judges in the respective courts. Apart from huge backlog of cases, the conviction rate in our
country is also very low hence the credibility of judgment is doubted. Judicial process is
additionally time consuming, cumbersome and expensive.
All these problems call for an alternative. A way that would lead to speedy trial and efficient
sentencing. A proposed alternative to this would be bringing the opportunity of plea
bargaining into the Indian Criminal Justice System.
Plea Bargaining can be described as “pre-trial negotiations between the accused and the
prosecution during which the accused agrees to plead guilty in exchange for certain
concessions by the prosecution.”They are also referred as plea agreement, plea deal or
copping a plea. The procedure for a plea bargain is simple – A bargain or deal is struck
between the accused and the prosecution whereby, the accused will agree to plead guilty to
the charge when enquired by the trial Judge and in return will get a lesser sentence or plead
guilty to one or more charge in return for the promise that the other charges will be dropped
against him. The trial Judge takes an active part in this process.
In the US, plea bargaining was introduced in the 19th Century and has proved to be very
successful. It has been an integral part of their justice system. Though Plea Bargaining has
not specifically been mentioned in their Constitution, its legality has been upheld in their
judicial pronouncements. Today, almost 90 to 95% of criminal cases in the US are disposed
off by plea bargaining rather than jury trial.
The Law Commission of India advocated the introduction of plea bargaining in India (even
though the Supreme Court vehemently opposed it) in its 142nd, 154th and 177th reports. The
Criminal Law (Amendment) Act of 2005 introduced a chapter XXI A into the Criminal
Procedure Code, 1973. This came into effect on 5th July 2006. It allows plea bargaining to be
used in the following circumstances–
1. Only for those offences that are punishable with imprisonment below 7 years.
2. If the accused has been previously convicted for a similar offence by any court, then
he/she will not be entitled to plea bargaining.
3. Plea Bargaining is not available to offences which might affect the socioeconomic
conditions of the country. For eg, for offences under the Dowry Prohibition Act,
1961, Commission of Sati Prevention Act, 1987, Juvenile Justice (Care and protection
of Children) Act, 2000
4. It is also not available if the offence if committed against a woman or child below 14
years.
5. Plea Bargaining is not available for serious offences such as murder, rape
It may happen in many cases that the accused entering into plea bargaining may not do so
voluntarily. Therefore, to ensure that the plea bargaining has happened in a proper way and
justice has been ensured, the Court must adhere to the following minimum requirements,
1. ”In the case of Babu vs State of Kerala, The Court observed that Public Prosecutors
are ministers of justice who is duty bound to assist the judge in the administration of
justice. (PUBLIC PROSECUTOR UNDER FUNCTIONARY)
2. In the case of V.C. Shukla vs. State, Justice Desai, while delivering the conclusive
judgement opined, “the purpose of framing a charge is to give intimation to the
accused of clear, unambiguous and precise notice of the nature of the accusation that
the accused is called upon to meet in the course of a trial.” ( CHARGE)
3. The charge sheet made by the Police correlates and mentions the complaint of that
private individual on which the criminal proceedings have taken place. Submission of
the Charge sheet by the police officer reflects that the initial investigation and
preparation regarding the same case are done and now Magistrate can take offence
committed under his consideration as stated in Rama Shankar v. State [AIR 1956 All
525] (POLICE REPORT)
4. Abhinandan Jha v Dinesh Mishra (AIR 1968 SC 117) It has been opined that the
Magistrate is not entitled to order an investigation by a senior police officer in charge
of the police station. In this case, the court observed that the creation of the opinion by
the police officer by whom or under whom the investigation took place, is the final
step in the investigation and that final step is to be taken by the police and not by any
other authority. Thus, there is no power expressly or impliedly given under the
provisions to a magistrate to call upon the police to submit a charge-sheet. When the
police officer has sent a report under Section 169 that there is no case can be made
from the following report to send the accused for trial, in that case the charges are to
be made by the Magistrate to keep in mind the report submitted by the police as per
Section 228 and Section 240 of CrPC. (INVESTIGATION)
5. 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. (TRIAL)
6. The principle of natural justice should be considered in respect of both the parties.
Right to a speedy trial is recognized in the case Huissainara khatoon vs Home
Secretary, State of Bihar, the court held- “the trial is to be disposed of as
expeditiously as possible”. (RIGHT OF AN ARRESTED PERSON)
7. Amiya kumar v. state of west Bengal 1978 Cri.LJ 288 In the instant case, it was held
that section 438 of the code empowers both the high court and the session’s court to
grant the anticipatory bail. Both the high court and the Sessions court have the
competency to grant this bail. If the Sessions court rejects the petition filed by the
applicant for the anticipatory bail then he can’t file the petition for the same in the
high court. (PROCEDURE OF BAIL)
8. In the case of K. Satwant Singh v. State Of Punjab AIR 1960 SC 266, that the
sections of joinder of charges are not compelling in nature. 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. (JOINDER OF CHARGES)
9. 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.
(JURISDICTION OF CRIMINAL COURTS)
10. In the case of State of Himachal Pradesh V. Krishan Lal Pradhan, 1987, the Supreme
Court held that there was sufficient relevant material on record and the prima facie of
the case was established by one judge. But the succeeding judge came to the decision
on the same materials that no charge could be established and therefore, an order of
discharge was passed. But it was held by the Supreme Court that no succeeding judge
can pass an order of discharge. (WARRANT TRIAL)
11. In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court held that
under Section 366(2) of CrPC the court while passing the conviction shall grant the
jail custody of the convicted person under a warrant i.e. the person shall be kept in
custody and not as a punishment. The ‘safe keeping’ in jail custody is the limited
jurisdiction of the jailor. It is a trusteeship in the hands of the Superintendent, and not
an imprisonment in a real sense. (SUBMISSION OF DEATH SENTENCE)
12. Javer Chand and Ors. V. Pukhraj Surana, 1961 In this case, it was held that the Court
does not proceed further whenever an objection is raised in the court without passing
any order on such an objection. If there is an objection on the stamp duty of a
document, then objection will be decided then and there before proceeding further.
(GENERAL PROVISIONS AS TO INQUIRY AND TRIAL)
Section 439 of the code states that any orders passed under section 436 of the code shall be
appealable.
The maximum period for which an under-trial prisoner can be detained (section 436-A
of the code)
Under section 436 A of the code states that the detention period for an undertrial prisoner
other than the one who is accused of the criminal offences punishable with death or life
imprisonment shall be released from detention if the person has been detained for one half of
the maximum sentence provided for the offence committed by him.
When may bail be taken in case of non-bailable offences (section 437 of the code)?
It depends upon the discretion of the court or the police officials that they may release the
person arrested for non-bailable offences until and unless there exists any reasonable grounds
or apprehension that person arrested has committed any crime and is not guilty of any
criminal liabilities which is punishable with life imprisonment or the death penalty.
Bail to require accused to appear before the next appellate court (section 437 A of the
code)
Under section 437A of the code, it has been stated that in order to appear in the higher court
as and when the higher court issues the notice against the judgment of the court it becomes
mandatory for the trial court or the appellate court which requires the accused to execute the
bail bond with sureties.
Bail bonds
A security is used to get the defendant released of who has been required to be granted bail,
basically bail is a financial arrangement that a bail bonding agency will make on behalf of a
criminal defendant. It is usually a contract in which the prisoner and one or more protection
promises that the sum charged by the court will be set that the prisoner must attend the
hearing of the charges against him if he is released on bail. The charge for the bail bond shall
also be agreed by the judges of the court that it may be only 10%-20% payable at the time of
the bail or that the full amount of the bond may be required by the court. Bail depends on the
following factors-
If a Complaint is made in writing, then the Magistrate needs to refer the following
case to the proper court for the presentation with the support for that effect.
If the Complaint is not in writing, then the Magistrate shall direct the complainant to
the proper Court.
According to this section, the collection of evidence can be done by the police officer or by
any such person who is considered to be fit and is authorised by the Judicial Magistrate on
that behalf. The main objective of the investigation directed under this section is to aid the
Magistrate in making up a decision to move towards the issue of process and this process
should not be thorough and exhaustive in nature. There need not be any investigation to be
directed if the offence is specially carried out for trial by the Court of Session which is
ultimately going to indirectly help in achieving an inquiry made by the Magistrate himself.
Moreover, in the case where the complaint has not been made by the court then there need
not be any investigation directed unless the complainant and the witnesses have been
examined on the basis of an oath. Section 465 of CrPC will not be able to cure the proceeding
in the case of directing an investigation before such examination but will spoil the proceeding
instead. The magistrate has the discretion to take or not to take any account of the witness on
the oath if the Magistrate wants to decide the case himself.
Section 202(2) of CrPC talks about the idea that in cases of offences which are entirely triable
by the Court of Session the inquiry should be Broad-based in nature whereas unlike in the
cases left on the discretionary action of the Magistrate. This broad-based inquiry is led by the
Magistrate only in the situation where he is unable to make his mind whether to dismiss the
complaint or proceed further to issue a process upon the complaint. In the case of trial by the
Court of Session, it is explicitly required by the Magistrate to call upon the complainant along
with all his witnesses and examine them on oath and here the word ‘All’ means all of them
not ‘some’. This provision helps the accused person to prepare him for defence with respect
to the accusations put on him by the complainant and examination of all the witnesses is not a
mere formality. Under Section 202 there is no provision provided to compel the complainant
to be present in the court during the Examination of the witnesses on oath and especially
when the complainant has been already examined on oath. Dismissal of the complaint by the
Magistrate in such a situation will be considered illegal.
The Magistrate can scrutinize the complaint and examine it completely before issuing a
process.
Examination of complainant
Section 200 of the Code of Criminal Procedure deals with the examination of the
complainant. The magistrate after taking cognizance of an offence has to examine the
complainant and witnesses present. This examination has to be done upon oath. The
magistrate also has the duty to note down the relevant information found in such
examination. The substance of such examination should be given in writing and that has to be
signed by the complainant and the witnesses. The magistrate need not conduct this
examination when:
1. If the complaint is made by a public servant who is acting or purporting to act in the
discharge of his official duties or a Court;
2. If the Magistrate makes over the case for enquiry or trial to another Magistrate under
Section 192.
If the magistrate in charge has examined the case and makes over the case for enquiry or trial
to another magistrate, then the latter magistrate does not need to examine the cases again.
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. But,
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.
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.
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. 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 same. 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.
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-
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.
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.
This type of case is filed as an FIR in the police station and is the first step in the process of
warrant cases instituted on a police report. The case is then forwarded to the Magistrate.
When any case is instituted on a police report, and the accused is brought or appears
voluntarily before the Magistrate, the Magistrate shall satisfy himself for complying with the
provisions of Section 207. And Section 238 to 243 of CrPC lays down the procedure of trial
of warrant cases instituted on a police report and the steps are mentioned below.
The initial steps involve the filing of an FIR. Once the FIR is filed in the police station, an
investigation is conducted to discover the facts and relevant details of the case. Once the
investigation is completed, a charge-sheet is filed and the documents are forwarded by the
police station to the Magistrate. The steps in warrant cases instituted on police report are:
Supply of copy of police report to accused in compliance with Section 207. (Section
238)
Discharge of accused on baseless charges. (Section 239)
Framing of charges. (Section 240)
Conviction on a guilty plea. (Section 241)
Evidence for the prosecution. (Section 242)
Evidence for defence. (Section 243)
Supply of copies to the accused
A copy of the police report and other documents relevant to the case should be supplied to
any person or persons who appears or is brought before a magistrate at the commencement of
the trial. And the Magistrate shall satisfy himself in complying with the provisions of Section
207. This is to ensure that the accused are aware of the charges against him and can prepare
for defence under fair trial by law.
Once the Magistrate receives the police report and other relevant documents and provides
them to the accused, the Magistrate shall consider each report. A hearing shall be convened
and a reasonable opportunity shall be provided for both the accused prosecution to present
their case. The Magistrate examines the accused if necessary. If the charge against the
accused is discovered to be baseless and lacking in substance, the accused shall be discharged
under Section 239. The prima facie of the case is also considered. In the case of State vs
Sitaram Dayaram Kachhi, 1957, the accused, Sitaram was acquitted under Section 239.
Framing of charge
Section 240 of CrPC authorises the Magistrate to consider the police report and even to
examine the accused if he feels the need to. If the Magistrate feels the presence of valid
grounds to presume that the accused has committed the offence and is capable of committing
such an offence, and he is competent to try the offence to adequately punish the accused in
his opinion. Then the written charge is framed against the accused and the trial is conducted
after the charge is read and explained to the accused. Framing of the charge is a duty of the
court and the matter must be considered judiciously.
In the case of Lt. Col. S.K. Kashyap V. The State Of Rajasthan, 1971, the accused files an
appeal challenging the authority of the special judge appointed to hear the case. The appeal is
failed and dismissed and the case proceedings are continued.
Clause 2 of Section 240 describes that the charge against the accused shall be read and
explained to the accused. Once the accused understands the charges against him, he shall be
asked whether he pleads guilty of the offence or wishes to challenge the charge by a fair trial
under the law.
The accused can plead guilty to cut short the procedure of law and reduce the punishment for
his offence. The Magistrate records the guilty plea and convicts the accused on his discretion.
(Section 241)
Section 242 of CrPC defines the procedure with regards to the gathering of evidence against
the offender and recording the evidence after examination and cross-examination to acquit or
convict an accused individual. In a criminal trial, the case of the state is presented first. The
burden of proving the accused guilty is on the prosecution and the evidence must be beyond a
reasonable doubt. The prosecution can summon witnesses and present other evidence in order
to prove the offence and link it to the offender. This process of proving an accused individual
guilty by examining witnesses is called examination in chief. The Magistrate has the power to
summon any person as a witness and order him to produce any document. State vs Suwa,
1961 is a case where the orders of the Magistrate to acquit the accused were set aside and a
retrial was ordered by sending the case to a District-Magistrate who sent them for a trial to a
Magistrate other than the one that tried the case originally.
Section 243 of CrPC describes the procedure with regards to collecting and presenting
evidence in the defence of the accused. After the prosecution is finished with the examination
of the witness, the accused may enter his defence in a written statement and the Magistrate
shall file it with the record. Or defence can be produced orally. After the accused has entered
his defence, an application may be put to the Magistrate to perform cross-examination of any
witness presented by the prosecution. The Magistrate may then summon any witness under
Sub-section 2 to be cross-examined by the defence. The prosecution must establish the case
beyond a reasonable doubt and if the defence can prove a reasonable doubt then the evidence
submitted by the prosecution is not valid and cannot be recorded in court against the accused.
Summary Trial
The legal provisions governing summary trials under the Code of Criminal Procedure, 1973
are Section 260 to Section 265. Under Section 262 of the Code of Criminal Procedure, 1973,
the procedure for summary trials has been laid down.The procedure followed for summon
cases has to be followed for summary cases as well. The exception in summary trials is, that a
sentence exceeding the duration of three months cannot be passed in case of conviction under
this Chapter.
For a criminal procedure to begin, the first step is to file an FIR or a complaint. This is
investigated upon by the police and evidence is collected. At the end of the investigation, a
charge sheet is filed by the police. This is also called the pre-trial stage.
The accused person is then taken before the Magistrate who orally reads the particulars of the
offences to the accused. In summons and summary trials, a formal charge is not written
down.
The Magistrate after stating the particulars of the offence committed asks the accused if he
pleads guilty or not. If the accused person pleads guilty, the Magistrate makes a record of the
statement of the accused and then proceeds for conviction.
If the accused does not plead guilty, the trial begins. The prosecution and the defence are
given an equal opportunity to put their case forward. The Judge may then decide the acquittal
or the conviction of the accused.
In summary cases, the difference lies at this juncture. If the Judge delivers a judgment of
conviction of the accused – the maximum sentence that can be passed for imprisonment is
three months.
The procedure to formulate a record in summary trials is laid down in Section 263 of the
Code of Criminal Procedure, 1973.
In all summary cases, the Magistrate has the duty to enter the following particulars, in the
following format prescribed by the State Government:
Section 264 of the Code of Criminal Procedure, 1973 lays down how a judgment should be in
cases which are tried summarily. The Magistrate has the duty to record the substance of the
evidence along with a judgment containing a brief statement of the reasons for such finding,
in all summarily tried cases where the accused does not plead guilty. Under Section 326(3) of
the Code of Criminal Procedure, 1973 the use of pre-recorded evidence by a successor judge
is barred in the instance when the trial has to be conducted summarily, according to Section
262 to 265 of the Code.
In Shivaji Sampat Jagtap vs. Rajan Hiralal Arora, it was held by the Bombay High Court
that if the procedure mentioned in Section 263 and Section 264 of the Code has not been
particularly followed, then the succeeding Magistrate does not need to hold a trial de novo. In
this case, the petitioner filed a complaint under Section 138 of the Negotiable Instruments
Act, 1881. The Magistrate issued the process, summons to the accused was served and
consequently, his plea was recorded. But before the Magistrate could deliver the judgment, he
ceased to have jurisdiction and was succeeded by another Magistrate. The new Magistrate
delivered a judgment on the basis of evidence which was recorded by his predecessor. An
appeal was filed that the new Magistrate should have conducted a de novo trial as
contemplated under Section 326(3) as the predecessor had conducted the case as a summary
trial. As this was not done, it was contended that the entire proceeding was vitiated. The
Sessions Court then quashed the conviction. Therefore, this revision application was filed. It
was held by the Court that the present case was not tried summarily. It was, in fact, tried as a
summons case. Therefore, the impugned judgment was quashed.
Initial Stage
It is very simple and easy to understand the initial stage with the help of the illustration– In a
courtroom, the public prosecutor will act as one side and the accused person will be the other
party in the matter. Here, the court expects that all the necessary documents need to be given
to an accused person in advance so he has a clear idea why the trail is being taken place.
Public Prosecutor is appointed under Section 24 of the Act, who is acting under the direction
of such prosecutor.
When the case is brought under Section 209 of the CrPC then in those condition public
prosecutor needs to present the piece of evidence so the trail can be started without any delay.
All the details regarding what all charges are framed against him need to be mentioned in a
court of law. After this stage, if magistrate feels that there is no case regarding the accused
person then he will be discharged.
If the accused person pleads his guilt then he will be punished as per the nature of
punishment and he will get convicted and if he did not plead then the court will fix a date for
going through a further process like examination of a witness, production of any document
etc. He needs to plead guilty from his own mouth, not by his pleader. Any admission made by
his leader is not binding in nature.The court needs to have all pieces of evidence which are
presented in the case and during the cross-examination stage.
Section 251 provides that it is not mandatory to frame charges but the section does not
dispense with the explanation of the particulars of the offence when accused is brought or
appear before the Court. This is done to make the accused cognizant for the allegations made
against him. If in case unable to convey the particulars than this will not vitiate the trial and it
will not lead to the prejudice with the accused as this irregularity is remediable under section
465 of the code. Under section 251 courts shall ask the accused whether the accused pleads
guilty, and section 252 and 253 needs to comply for conviction on such plea of guilty.
Section 252 and 253 provides conviction on the plea of guilty. Section 252 provides plea of
guilty in general and section 253 provides plea of guilty in case of the petty cases. In case
accused plead guilty, the answer is affirmative than in accordance with law court will record
the plea in the exact words of the accused on the basis of which accused can be convicted on
the Court’s discretion. If not affirmative than the court needs to proceed further with Section
254. If the accused plead guilty, and the charges against him do not constitute any offence
than mere plea will not amount to the conviction of the accused. As the magistrate has the
discretion to convict on the plea or not, if on plea the accused is convicted than the magistrate
shall proceed according to section 360 otherwise hear the accused on the question of sentence
and sentence him according to law. If the plea of guilty is not accepted than magistrate shall
proceed according to section 254.
Section 254 provides about both prosecution and defence case if the accused not convicted on
plea under section 252 and 253.
Prosecution case
The magistrate will hear the accused and take all the evidence. In the hearing, the prosecution
will be given chance to open its case by putting facts and circumstances which constitute the
case and by revealing the evidence which he relied upon to prove the case. The magistrate on
the application of the prosecution, serve summon to any witness to attend and to produce any
document or thing. The magistrate will prepare the memorandum of the evidence according
to section 274. Same as other trials in summon cases also the magistrate will comply with
section 279 i.e., interpretation of evidence to the accused and 280 i.e., recording of the
demeanor of the witnesses.
After the prosecution evidence under 254 and examination of defence under section 313, in
the continuance of this, the court will proceed with the defence hearing under section 254(1).
In the hearing of the defence means accused will be asked for accused say against the
prosecution evidence. Failure of hearing of the accused in any case will amount to the
fundamental error in the criminal trial and it can not be cured under section 465. Evidence
produced by the accused will be recorded in the same manner as in case of prosecution under
section 274, 279, 280. After the submission of the evidence of the defence, he will be allowed
to submit his arguments under section 314.
Acquittal or conviction
After recording the evidence under 254 the magistrate will acquit the accused if he finds the
accused not guilty. If the accused is guilty than Magistrate shall proceed according to Section
360 or 325 otherwise, sentence him according to the law. According to section 256 on the
date fixed for the appearance of the accused nonexistence of the complainant will empower
the court to acquit the accused unless the court has the reason to adjourn the case to some
other day. Section 256(1) is also applicable in case of the death of the complainant↓. In case
the representative of the dead complainant does not appear for 15 days where the defendant
appeared, the defendant can be acquitted held by the Supreme Court.
Whether the evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove it beyond a reasonable doubt.
If the act or omission from which the liability might arise doesn’t exist.
The essential elements of the offence committed by the accused and the intervening
circumstances which led to the commission of this offence.
Participation of the accused as the principal perpetrator, or accomplice or accessory.
The penalty that is imposed on the accused.
Language and contents of judgment
Under Section 354, of CrPC, it is stated that every judgement should be:
In the language of the Court, Shall contain the points of determination and the reason
for the same.
The offence should be specified and the reason for the same should be given for the
same. The offence so committed must be mentioned in the IPC or any other law under
which the crime is committed and the punishment is given.
If the offender is acquitted, the offence for which he was acquitted, the reason for the
same and it must be specified that a person is now a free man.
If the judgment is passed under the IPC and the judge is not certain as to under which
Section the offence is committed or under which part of the Section, the judge should
specify the same in the judgement and should pass orders in both the alternate
situations.
The judgement shall furnish a proper reason for the conviction if it is a sentence for a
term of life imprisonment and in case of death sentence the special reason has to be
given.
Under Section 355 of the CrCP, it is mentioned that the judge instead of giving the judgement
in an above-mentioned way, can deliver it in an abridged version that would contain-
Sentence of imprisonment
Under Section 354 of the CrPC, when the conviction is for an offence punishable with
imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of the death sentence, the special reasons
for it. Moreover, when the conviction is for an offence punishable with imprisonment for a
term of one year or more, but the Court imposes a sentence of imprisonment for a term less
than three months, it shall record its reasons for the same, unless the sentence is one of
imprisonment till the rising of the Court or the case was tried summarily.
Sentence of fine
Under Section 357 of the Code, when a Court imposes a sentence of fine or a sentence in
which fine is also included then the Court while passing judgment may order the whole or
any part of the fine recovered to be applied:
In defraying the expenses incurred during the prosecution.
In the payment to any person as compensation for any loss or injury caused by the
offence, when compensation is recoverable in the Civil Court.
When any person is convicted of any offence for causing the death of another person
or have encouraged the commission of such an offence, have to pay compensation to
the persons who are, under the Fatal Accidents Act, 1855 entitled to recover damages
from the person sentenced for the loss resulting to them from such death.
When any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or dishonestly receiving or
retaining, or voluntarily assisting in disposing of stolen property knowing or believing
the same to be stolen then compensation has to be given to the bona fide purchaser of
such property for the loss of the same if such property is restored to the possession of
the person entitled.
If the fine is imposed in a case which is appealable, no such payment shall be made before
the period allowed for presenting the appeal has lapsed, or if an appeal is presented then
before the decision of the appeal is delivered.
Under Section 358, it is stated that in case a person compels the police to arrest another
person, which the Magistrate thinks that there is no ground for such arrest, the Magistrate
may order compensation not exceeding Rs 1000, to be paid by the person who causes such
arrest. The fine is given as a way of compensation for the loss of time and expenses or other
matter, as the judge may think fit. If more than one person is arrested on such basis, then each
of them should be awarded a compensation not exceeding Rs 100, as the Magistrate thinks
fit. Such compensation shall be recovered as a fine and if the person does not pay the
compensation then the Magistrate can sentence him to imprisonment not exceeding 30 days
unless the compensation is sooner paid.
The death penalty is the highest level of punishment and it follows the principle of ‘rarest of
rare’ (uncommon crime or that is unusual to a person of ordinary prudence, the one which
shocks and causes tremors throughout the judiciary and the society). This section works as a
precautionary step to minimize the error while meeting the ends of justice.
The case of Bantu Son of Vidya Ram Bediya vs State Of U.P. (2006) was submitted to the
Allahabad High Court from Agra’s Sessions Court under Section 366 of CrPC. The accused
had committed the offence of rape, murder and kidnapping. The rape was so gruesome that
during the postmortem a stem of more than a feet was retrieved from her vagina which was
inserted by the accused while committing the offence. Allahabad High Court upheld the death
penalty of the accused stating that it was the rarest of rare case.
Further Sections provide the powers the High Court has in regard to cases submitted under
Section 366 of the CrPC.
Sub-section (2) of Section 367 provides that the convict can be directed to dispense his/her
presence during such inquiry or taking of the evidence unless the High Court otherwise
directs.
Sub-section (3) of Section 367 provides that if the Sessions Court (authority other than the
High Court) makes the enquiry or takes into consideration such evidence then it shall be
certified by the Sessions Court.
In the case of Balak Ram Etc vs The State of U.P. (1974) the Supreme Court in the final
judgment stated that High Court had failed in properly considering the pieces of evidence of
the prosecutor’s witnesses and held that while inquiring against a death penalty case or taking
into consideration different pieces of evidence, the High Court shall take into consideration
all the pieces of evidence itself as it is its duty.
confirm the sentence passed by the Sessions Court, or pass a sentence other than the
one provided it is warranted by the law, or
annul the conviction passed by the Sessions Court, and instead either convict the
accused under any other offence for which the Session’s Court had convicted him/her
or order for a trial on an amended charge or on the same charge, or
acquit the accused of the charges made against him.
The proviso to the section states that till the time the limitation period to file an appeal
against the verdict is not expired, or the appeal is still pending or is not disposed of, the Court
cannot pass an order of confirmation. In the case of Kartarey and Ors. vs The State of Uttar
Pradesh (1975), the Sessions Court had passed the verdict announcing the death sentence
which was later altered by the High Court. When the case reached the Supreme Court it was
observed that the High Court has committed a grave error in examining the evidence or
additional evidence. It states that it is the duty of the High Court to ‘reap-praise’ the evidence
in totality and it shall come to a conclusion on the merits of the case only after considering
the proceedings in all their aspects. It is important and crucial to consider the defence
evidence equally and not to neglect it as this is contradictory to the settled rule of practice and
law.
the sentence, or
any new sentence, or
any order.
Passed by the High Court shall be ‘made, passed and signed’ by either two or more judges. It
is an essential condition that cannot be ignored.
Section 273– It is mandatory to record all the evidence only in the presence of the accused
when his personal attendance has been dispensed, the evidence must be recorded in the
presence of a pleader.
Section 274– Magistrate shall record a memorandum of the substance of evidence in the court
language and must be signed by the Magistrate.
Section 275(1)– In all the warrant cases, the evidence of each witness shall be in writing by
Magistrate or under his direction if the Magistrate is unable to do so due to some physical or
other incapacities, under his direction and superintendence, by the officer of the court who is
appointed by the Magistrate on his behalf. The evidence under this subsection is to be
recorded by audio-video electronic.
Section 275(3)– This section permits the Magistrate to record evidence in question and
answer form.
Section 276– In Session Court, the recording should be done in a narrative form. The
presiding officer at his discretion can take down any part of the evidence in question and
answer format which has to be signed by him
Section 278– When the evidence of a witness is completed, it should be read over to the
accused or his pleader. This shouldn’t be done at the end of the day when all the witnesses
have been examined. The evidence if needed can be corrected by the accused.
Section 280– The presiding judge or magistrate is empowered to record the remarks.
Marking of Exhibits
Some evidence shall be submitted by the prosecution, this evidence has to be marked with the
number in the order in which they are submitted. The documents that are admitted on behalf
of defence shall be marked with capital letter alphabets. If in case neither party does not
accept the evidence then the evidence shall be marked as Ext C-I, C-II etc.
If more than one number of documents are of similar nature, then the small letter or small
number is added in order to distinguish each document in the series. After the evidence is
proved and admitted it shall be marked with a Roman number. Example MO-I, MO-II etc.
the bench clerk of the court shall prepare the list of articles which shall be signed by the
Judge.
Cases
Javer Chand and Ors. V. Pukhraj Surana, 1961
In this case, it was held that the Court does not proceed further whenever an objection is
raised in the court without passing any order on such an objection. If there is an objection on
the stamp duty of a document, then objection will be decided then and there before
proceeding further.
In this case that accused was convicted for an offence under Section 302 of IPC and was
subjected to a death sentence. The conviction was set aside evidence was not recorded in his
presence, later the case was remanded back for trial.
Any order received by the Session Court from the High Court has to be executed by the
Session Court by way of issuance of a warrant. (Section 413 of the CrPC). Execution of
sentence of death passed by High court. Under Section 414 of the CrPC, if the High Court,
passes the order of death sentence in appeal or revision, the Session Court has to carry on the
order by issuing a warrant.
The Constitution of India, vests a large amount of sovereign power in the President and the
Governor. Centre and the State are governed in the name of President and Governor
respectively. Under Article 72 of the Indian Constitution, the President has the power to
pardon, remit, suspend or commute any sentence.Under Article 72, the President has the
power to pardons, reprieves, respites or remission of punishment or to suspend remit or
commute the sentence of any person convicted of any offence:
In cases where the punishment is given by the court-martial. The Governor’s power to
remit, suspend or commute the sentence under the laws of the State, shall be given
precedence.
In cases where the power of executive extends.
In cases where the punishment is a death sentence.
Similarly, under Article 161 of the Constitution of India, these powers are conferred on the
Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend,
remit or commute the sentence, which is given on the basis of the laws prevalent in the State,
to which the executive power of the State extends. The difference between the pardoning
power of the President and that of the Governor is that the Governor does not enjoy the
power to grant pardon to a death sentence.
However, this power of the President is not absolute and depends on the consultation with the
council of ministers. This is not present in the Constitution but practically this process is
followed. Further, the Constitution does not provide for any mechanism to check the legality
of the decision taken by the President and the Governor while exercising their mercy power.
However, in the case of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway is
provided for judicial review of the mercy granting power of the President and the Governor
to rule out any sort of arbitrariness.
Commutation of sentence
In contrast to Suspension and Remission, which only affect the duration of the punishment
without interfering with the nature of the punishment, Commutation, on the other hand,
changes the nature of the punishment and converts it into a less severe form of punishment.
There is nothing to restrict the government to commutate a sentence, even if it is as low as a
fine. Under Section 433 of the CrPC, the appropriate government gets the power to
commutate the sentence in an appropriate case. Various sentences are eligible for
commutation, one of them is death sentence i.e.mercy plea.
Commutation of death sentence has always been in the controversy, it raises an issue
regarding the basic human rights of the accused and on the other hand the impact of the grave
crime on the society. Section 433 of the CrPC gives the power to the government to
commutate the death sentence to a simpler sentence.
Most of the convicts of the death sentence, get their sentence reduced to 14 years of life
imprisonment in accordance with the provisions of CrPC.
Appeals (372-394)
An appeal is a tool given to the parties of a case to ensure justice is served and all the parties
are satisfied by the judgment. After hearing all the parties in a case, a competent court
pronounces the judgment and if the parties are not satisfied with the judgment they have a
right to appeal to a higher court. Such an appeal would give the aggravated party another
opportunity to present their case to a higher authority or the Appellate Court who would
judge the case with a fresh perspective and if there are any wrongdoings, they would be
corrected. When the verdict is unreasonable or not supported by evidence, or when there is
miscarriage of justice on any grounds, then such a verdict can be appealed.
As already discussed appeal is neither an inborn right nor a vested right, but one which is
given by the statue itself. If there is no provision allowing an appeal for a case, then such an
appeal would not be allowed.
As per Article 132(2) of the Constitution of India, if the High Court is satisfied that there is a
substantial question of law which is in question, then an appeal can be made to the Supreme
Court from any judgment, decree or final order from any High Court within the territory of
India.
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.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 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 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. 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:
An accused is to be given due opportunity to hear him and on order cannot be passed
unless this is followed.
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.
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.
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 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 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”
“Nothing in this code shall be deemed to limit or affect the inherent powers of the High court
to make such orders as may be necessary to give effect to any order under the Code, or to
prevent abuse of the process of any court or otherwise to secure the ends of justice”.
Sec 482 of the CrPC deals with the inherent powers of the court. This section was
added by the Code of Criminal Procedure (Amendment) Act of 1923, as the high
courts were unable to render complete justice even if the illegality was apparent. The
inherent jurisdiction may be exercised under this section, except under 3
circumstances, namely:
The jurisdiction is completely discretionary. The High Court has the power to refuse
to use its power.
The jurisdiction of High Court is not limited only to cases that are pending before the
High Court, and it can consider any case that comes to its notice (in appeal, revision
or otherwise).
Under Section of 248 of CrPC, when the aggrieved party is being unnecessarily
harassed, then this power can be implored if he has no other remedy open to him.
The High Court does not conduct a trial or appreciate evidence. This power of High
Court is limited to cases that compel it to intervene for preventing a palpable abuse of
a legal process.
The High Court has the right to provide relief to the accused even if he or she has not
filed a petition under section 482.
If any trial is pending before the apex court, and has been directed to the sessions
judge for the issuance a non- bailable warrant regarding an arrest of the Petitioner(s),
this power of High Court can not be exercised.
Section 482 of the CrPC specifies that the inherent power is not intended to scuttle
justice at the threshold, but to secure justice.
This power has to be exercised sparingly with circumspection and in the rarest of rare
cases, but it cannot be said that it should only be exercised in the rarest of rare cases.
The expression rarest of rare case may be exercised where death penalty is to be
imposed under Section 302 of IPC but this expression cannot be extended to a petition
under Section 482 CrPC.
Any proceeding if it finds that initiation to abuse of the process of Court, Court would
be justified to the quashing of these proceedings.
As long as the inherent power under Section 482 of CrPC is in the statute, the exercise
of such power is not impermissible.
The power granted by the Code under Section 406 to the Supreme Court is purely
discretionary in nature and the applicant is under no obligation to conclusively establish that
in case the transfer does not take place then fair justice will not take place and the applicant is
only expected to reasonably substantiate the contentions made by him under the application
he has submitted to the Supreme Court. The application under Section 406 of the Code is
made by the interested party should always be in the form of motion supported by an affidavit
or affirmation, except in the cases where the applicant is the advocate general or attorney
general of the country.
The power of the Supreme Court to transfer the cases and appeals also extends to the transfer
the cases from any subordinate court in the country where any matter is pending. However,
the court where the case is pending can ensure that the Supreme Court, while transferring the
case is taking all the measures to uphold fairness and principles of natural justice. The parties
in any suit are always guaranteed the opportunity to bring to the notice of any court with
appropriate jurisdiction that there are reasonable grounds which uphold the apprehension in
the mind of the person that certain factors inhibit his right to a fair trial.
In Vishwanath Gupta v. State of Uttar Pradesh, the applicant filed an application for the
transfer of a case on the contention that he was under the apprehension that he wouldn’t be
able to engage a counsel in the court where a case against him was already pending in the
case. However, the District Bar Association submitted an application assuring the court that a
defence counsel from among the members of the Bar Association would be made available to
the applicant. The Supreme Court held the application to be invalid dismissing the prayer for
the transfer.
In Sukhdev Singh Sodhi vs The Chief Justice And Judges of The PEPSU High Court, the
court held that the power of transferring of cases with the Supreme Court does not extend to
transfer of any contempt proceeding which is pending before the High Court.
The power of transfer of cases and appeals is not only discretionary but is also limited as
Section 406 does not clothe the Supreme Court with the power to transfer investigation
pending before one police station to another for the only reason being the forwarding of FIR
to the court. In cases where the Supreme Court is of the opinion that the application made is
frivolous in nature and is devoid of any substantial claim then it may order the party which
came up with the application to pay compensation of not more than one thousand rupees to
the party which opposed such application.
In Kaushalya Devi v. Mool Raj, the Supreme Court held that in cases where the application
of transfer of the case is made but the Magistrate dealing with the case opposes the
application by himself filing an affidavit then the transfer of the case, without any doubt in
the complete interest of justice because in all such cases the essentials of fair and impartial
trial are already put to peril which is signified by the personal involvement of the judge
himself.
To uphold the spirit of justice: The ultimate goal of any judicial system on the earth
is the deliverance of justice and protection of the rights of every person. The courts
are highly revered institutions of justice with people having high expectations of
justice which is sought after by the aggrieved party. Therefore, the court is under high
moral obligations for keeping the machinery of justice, equity and good conscience
alive.
Recommendations made by the superior judicial officers: The courts while
deciding whether to transfer the cases and appeals from one court to another takes into
consideration the inquiries and findings as revealed by the reports carried on by the
senior judicial officers such as Chief judicial magistrate or any sessions judge.
Upon request by the trial court: Where the court before which the matter is pending
deems the case to be outside its scope of jurisdiction due to involvement of a
substantial question of law which is outside its purview. It may request the higher
judiciary to transfer the case.
Lack of complete jurisdiction: In certain cases, the court has limited jurisdiction
over the subject matter of the case before it. In such cases of shared or limited
juridical issues, the court trying the case has the liberty of transferring the case to the
court which possesses the conclusive jurisdiction of trying the matter. This process
ensures that complete justice has been done to the parties before the court.
Differences between the party and the judicial officer: In circumstances where
there is already a presence of differences between the judicial officer and any of the
party the chances of an unfair and partial trial being carried out are relatively higher.
Therefore, the party apprehending such consequences of carrying on of the trial is
granted the opportunity by the judicial system to apply for transfer of the case.
Infringement of principles of natural justice: Where the proof of continued
contravention of the principles of natural justice by any court or judicial officer is
rendered by a party to the Supreme Court, then in order to uphold the principles of
natural justice, the court may order the transfer of the case.
The very purpose of Criminal law is the free and fair dispersal of justice which is not
influenced by any extraneous considerations. Section 407 of the Code of Criminal Procedures
enables the party to seek for transfer of case anywhere within the state while Section 406 of
the Code enables the party to seek transfer of the case anywhere in the country.
The right to a fair and impartial trial which is guaranteed under Article 21 of the Indian
Constitution can not be exercised by any of the party to the suit if the case is tried by any of
the courts which is subordinate to it; Certain questions pertaining to the present matter in the
court are of unusual difficulty; The transfer of the appeal or the case is made inevitable by
any of the provisions under the Code; The order of transfer will be in the interest of the
general convenience of the parties or witnesses involved in the suit.
The above statement, written by Warren E. Burger, in an address to the American Bar
Association point to the importance of timely justice in a free society. The biggest problem
that Indian justice system is facing is the huge backlog of cases. Noted jurist Nani Palkiwala
rightly said, “The law may or may not be an ass, but in India, it is certainly a snail”. More
than three crore cases are languishing in the Courts for various reasons. .One of the major
reason behind this abysmally low disposal of cases by Judiciary is the lack of number of
judges in the respective courts. Apart from huge backlog of cases, the conviction rate in our
country is also very low hence the credibility of judgment is doubted. Judicial process is
additionally time consuming, cumbersome and expensive.
All these problems call for an alternative. A way that would lead to speedy trial and efficient
sentencing. A proposed alternative to this would be bringing the opportunity of plea
bargaining into the Indian Criminal Justice System.
Plea Bargaining can be described as “pre-trial negotiations between the accused and the
prosecution during which the accused agrees to plead guilty in exchange for certain
concessions by the prosecution.”They are also referred as plea agreement, plea deal or
copping a plea. The procedure for a plea bargain is simple – A bargain or deal is struck
between the accused and the prosecution whereby, the accused will agree to plead guilty to
the charge when enquired by the trial Judge and in return will get a lesser sentence or plead
guilty to one or more charge in return for the promise that the other charges will be dropped
against him. The trial Judge takes an active part in this process.
In the US, plea bargaining was introduced in the 19th Century and has proved to be very
successful. It has been an integral part of their justice system. Though Plea Bargaining has
not specifically been mentioned in their Constitution, its legality has been upheld in their
judicial pronouncements. Today, almost 90 to 95% of criminal cases in the US are disposed
off by plea bargaining rather than jury trial.
1. Only for those offences that are punishable with imprisonment below 7 years.
2. If the accused has been previously convicted for a similar offence by any court, then
he/she will not be entitled to plea bargaining.
3. Plea Bargaining is not available to offences which might affect the socioeconomic
conditions of the country. For eg, for offences under the Dowry Prohibition Act,
1961, Commission of Sati Prevention Act, 1987, Juvenile Justice (Care and protection
of Children) Act, 2000
4. It is also not available if the offence if committed against a woman or child below 14
years.
5. Plea Bargaining is not available for serious offences such as murder, rape
Withdrawal of one or more charges against an accused in return for a plea of guilty
Reduction of a charge from a more serious charge to a lesser charge in return of a plea
of guilty
Recommendations by prosecutor to sentencing judges for lesser sentence in lieu of
plea of guilty.
It may happen in many cases that the accused entering into plea bargaining may not do so
voluntarily. Therefore, to ensure that the plea bargaining has happened in a proper way and
justice has been ensured, the Court must adhere to the following minimum requirements,
1. ”In the case of Babu vs State of Kerala, The Court observed that Public Prosecutors
are ministers of justice who is duty bound to assist the judge in the administration of
justice. (PUBLIC PROSECUTOR UNDER FUNCTIONARY)
2. In the case of V.C. Shukla vs. State, Justice Desai, while delivering the conclusive
judgement opined, “the purpose of framing a charge is to give intimation to the
accused of clear, unambiguous and precise notice of the nature of the accusation that
the accused is called upon to meet in the course of a trial.” ( CHARGE)
3. The charge sheet made by the Police correlates and mentions the complaint of that
private individual on which the criminal proceedings have taken place. Submission of
the Charge sheet by the police officer reflects that the initial investigation and
preparation regarding the same case are done and now Magistrate can take offence
committed under his consideration as stated in Rama Shankar v. State [AIR 1956 All
525] (POLICE REPORT)
4. Abhinandan Jha v Dinesh Mishra (AIR 1968 SC 117) It has been opined that the
Magistrate is not entitled to order an investigation by a senior police officer in charge
of the police station. In this case, the court observed that the creation of the opinion by
the police officer by whom or under whom the investigation took place, is the final
step in the investigation and that final step is to be taken by the police and not by any
other authority. Thus, there is no power expressly or impliedly given under the
provisions to a magistrate to call upon the police to submit a charge-sheet. When the
police officer has sent a report under Section 169 that there is no case can be made
from the following report to send the accused for trial, in that case the charges are to
be made by the Magistrate to keep in mind the report submitted by the police as per
Section 228 and Section 240 of CrPC. (INVESTIGATION)
5. 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. (TRIAL)
6. The principle of natural justice should be considered in respect of both the parties.
Right to a speedy trial is recognized in the case Huissainara khatoon vs Home
Secretary, State of Bihar, the court held- “the trial is to be disposed of as
expeditiously as possible”. (RIGHT OF AN ARRESTED PERSON)
7. Amiya kumar v. state of west Bengal 1978 Cri.LJ 288 In the instant case, it was held
that section 438 of the code empowers both the high court and the session’s court to
grant the anticipatory bail. Both the high court and the Sessions court have the
competency to grant this bail. If the Sessions court rejects the petition filed by the
applicant for the anticipatory bail then he can’t file the petition for the same in the
high court. (PROCEDURE OF BAIL)
8. In the case of K. Satwant Singh v. State Of Punjab AIR 1960 SC 266, that the
sections of joinder of charges are not compelling in nature. 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. (JOINDER OF CHARGES)
9. 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.
(JURISDICTION OF CRIMINAL COURTS)
10. In the case of State of Himachal Pradesh V. Krishan Lal Pradhan, 1987, the Supreme
Court held that there was sufficient relevant material on record and the prima facie of
the case was established by one judge. But the succeeding judge came to the decision
on the same materials that no charge could be established and therefore, an order of
discharge was passed. But it was held by the Supreme Court that no succeeding judge
can pass an order of discharge. (WARRANT TRIAL)
11. In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court held that
under Section 366(2) of CrPC the court while passing the conviction shall grant the
jail custody of the convicted person under a warrant i.e. the person shall be kept in
custody and not as a punishment. The ‘safe keeping’ in jail custody is the limited
jurisdiction of the jailor. It is a trusteeship in the hands of the Superintendent, and not
an imprisonment in a real sense. (SUBMISSION OF DEATH SENTENCE)
12. Javer Chand and Ors. V. Pukhraj Surana, 1961 In this case, it was held that the Court
does not proceed further whenever an objection is raised in the court without passing
any order on such an objection. If there is an objection on the stamp duty of a
document, then objection will be decided then and there before proceeding further.
(GENERAL PROVISIONS AS TO INQUIRY AND TRIAL)