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CRPC law notes

Table of Contents
• 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)
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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
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Introduction to CRPC

Why do we need Criminal Procedure Law?

Anyone who has a rudimentary knowledge of criminal law will know that it deals
with what amounts to an offence and what are the penalties associated with such
offences. However, the nature of most criminal punishment is such that it
confines the individual liberty of a person. Imprisonment, if illegal, violates some
of the most basic freedoms and rights associated with a democracy. Thus, we
need a law that sets the state’s machinery running with respect to enforcing law
and order and imparting justice, and regulates the procedure followed by these
institutions. The Criminal procedure code refers to the working of these
institutions for the entire time period between when a crime has been committed
until the time the sentence against the crime is passed and the case is closed. It
refers to the machinery to be adopted by the State when a violation of the penal
law, i.e., offence under the Indian Penal Code, has been detected or reported. It
also lays down the principles and procedure that must be followed while
prosecuting and adjudicating other claims. The investigation, inquiry and trial of
the other offences are also governed by these provisions, subject to any other law
that may be in force which regulates the manner of investigation, inquiry or trial
of the matter.

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.
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Types of Criminal Offences:

• Bailable offence and Non-bailable offence

• Cognizable and Non-Cognizable offence

Functionaries under crpc

There are various functionaries under the Code of Criminal Procedure,1973 who
help to regulate the various provisions of the code. The functionaries are essential
for the proper functioning of the code. The various functionaries mentioned
under the code are the Police, Public Prosecutors, Assistant Public Prosecutors,
Additional Prosecutors, Prison authorities and the Defence counsel. The powers
and functions of the functionaries are clearly mentioned in the code.

Hierarchy of court ( section 6-23)

The setup of criminal courts in India is of 2 types i.e. District and Metropolitan
areas.

District

The setup of criminal courts in district areas is at 3 levels: –

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
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• 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

Chief Judicial Magistrate/Chief Metropolitan Magistrate exercises supervisory

authority or administrative authority of all the magistrates in sessions/division or
metropolitan areas.

Classes of criminal courts

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
Hierarchy of Criminal Courts

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.
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Lower Courts of India have been classified as follows:

Metropolitan Courts

• Chief Metropolitan Magistrate

• First Class Metropolitan Magistrate
District Courts

• Sessions Court
• First Class Judicial Magistrate
• Second Class Judicial Magistrate
• Executive Magistrate
Separation of Judiciary from the Executive

The Code under Section 3(4) separates the judiciary from the executive and states
that, subject to the provisions of the Code:

• Judicial Magistrate shall exercise the functions relating to matters in

which appreciation or shifting of evidence is involved or which involve
the formulation of any decision by which any person is exposed to a
penalty or punishment or detention in custody, inquiry or trial.
• Executive Magistrate shall exercise the functions regarding the matters
which are executive or administrative in nature, for example, the
granting or suspension or cancellation of a license, withdrawing from
prosecution or sanctioning a prosecution.
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
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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.

Court of Judicial Magistrate

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.

Chief Judicial Magistrate and Additional Chief Judicial Magistrate

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.

Sub-Divisional 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.

Special Judicial Magistrates

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
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empowered by the High Court to exercise the powers of a Metropolitan

Magistrate.

Local Jurisdiction of Judicial 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) cannot 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.

Subordination of judicial magistrate

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.

Courts of Metropolitan Magistrate

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.

Special metropolitan magistrates

The High Court may confer upon Special Metropolitan Magistrates the powers
which a Metropolitan Magistrate can exercise in respect to particular cases or
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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.

Subordination of Metropolitan Magistrate

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
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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.

Local jurisdiction of the executive magistrate

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.

Subordination of executive magistrate

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.

Police as functionary (sec 36)

There is no provision in the code that creates the police or police officers. It
assumes the existence of police and arms them with various responsibilities and
powers.

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
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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.

Public prosecutor (section 24 to 25 A)

A Public Prosecutor is considered as the agent of the state to represent the

interest of common people in the criminal justice system. The prosecution of the
accused is the duty of the state but not individually the duty of the aggrieved
party. They are appointed in almost all countries. The Public Prosecutor is defined
in Section 24 of Cr.P.C. They serve as the basic principle of Rule of Law i.e. auld
alteram partem (no person shall be condemned unheard).

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

The functions of the Public Prosecutor differ according to their designation.

• Public Prosecutor- supervise the function exercised by the Additional

Public Prosecutor in Session Court and High Court.
• Chief Prosecutor- supervise the functions exercised by Assistant Public
Prosecutor in Metropolitan Magistrate Court.
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• Additional Prosecutor- conduct criminal proceedings in the Session

Court.
• Assistant Public Prosecutor- they examine the charge sheet prepared by
agencies and submit the acquittal or discharge. They also are responsible
for the evaluation of evidence and filing revisions petitions. They also
conduct the criminal proceedings in the Court of Metropolitan
Magistrate.
• Director of Prosecution- it is the head office. They exercise the overall
control and supervision of officers of Directorate. They also look after
the Account Branches.
The objective of establishing a Directorate of Public Prosecutors is to supervise
and scrutinise the functions relating to various prosecution agencies at Assistant
Session level and Session level except at High Court.

Reasons for the Appointment of Public Prosecutor

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:

• Equality before law

• Protection against double jeopardy
• Protection against self-incrimination
• Protection against ex-post law
• Right to life and personal liberty except procedure established by law
• Presumption of innocence until proven guilty
• Arrest and detention must be in accordance with the provisions of
Cr.P.C.
• Equal protection of laws
• Speedy trial
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• Prohibition of discrimination
• Right of accused to remain silent

• Defence council as a functionary

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.

Basic concepts and definition

Bailable and non-bailable offences [2(a)]

Bailable offence is one where the defendant (the one who is defending himself in
a criminal case) may be able to secure his release upon the payment of bail. These
are the cases where the grant of bail is a matter of course and right. If a person is
held under a non-bailable presence, he cannot claim the grant of bail as a matter
of right. But the law gives special consideration in favor of granting bail where the
accused is under sixteen, a woman, sick or infirm, or if the court is satisfied that
it is just and proper for any other special reason to give rather than refuse bail.

Cognizable and non-cognizable offences (154)

Offences can be categorized into various types, but we will particularly focus on
two : Cognizable Offences and Non-cognizable Offences. Under Cr.P.C.,
Cognizable Offence is discussed under Section 154. Section 2(c) of Cr.P.C. defines
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it to be an offence in which the police officer can arrest the convict without a
warrant and can start investigation without the due permission of the court.
These are the offences that are usually very serious and generally heinous in
nature. For example: Rape, murder, kidnapping, dowry death etc. All cognizable
offences are non-bailable due to their serious and heinous nature. Section 2(1) of
Cr.P.C. defines Non-cognizable Offence. It refers to it as an offence for which a
police officer has no authority to arrest without a warrant. These are the offences
that are not serious or usually petty in nature. For example: assault, cheating,
forgery, defamation etc. Non-cognizable offences are usually bailable because of
their non serious nature.

Section 154

Information in cognizable cases.

• Every information relating to the commission of a cognizable offence, if

given orally to an officer in charge of a police station, shall be reduced to
writing by him or under his direction, and be read over to the informant;
and every such information, whether given in writing or reduced to
writing as aforesaid, shall be signed by the person giving it, and the
substance thereof shall be entered in a book to be kept by such officer in
such form as the State Government may prescribe in this behalf.
• A copy of the information as recorded under sub-section (1) shall be
given forthwith, free of cost, to the informant.
• Any person aggrieved by a refusal on the part of an officer in charge of a
police station to record the information referred to in subsection (1) may
send the substance of such information, in writing and by post, to the
Superintendent of Police concerned who, if satisfied that such
information discloses the commission of a cognizable offence, shall
either investigate the case himself or direct an investigation to be made
by any police officer subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of an officer in charge of
the police station in relation to that offence.
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
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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.

Police report [173(2)]

Section 2(r) of CrPC talks about the expression ‘police report’, according to which
a report is forwarded by a police officer to a Magistrate under Section 173(2). The
report should be in the manner that is prescribed by the State Government as per
the particulars mentioned in clause (a) to (g) of sub-section(2) of Section 173. The
police report submitted under this section is called the End Report. If this report
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constitutes an attempt of a crime by an accused person, that report is commonly

called the “charge-sheet” or the “challan”.

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.
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Types of Police Reports

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
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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.

• Internal affairs reports

Law enforcement department’s check-and-balance accountability, an officer is
often required to submit an inquiry into internal affairs. Those inquiries are
reported as complaints of misconduct on internal affairs reports. Every allegation
returns one of four findings: sustained (the accusation is proven); unsustained
(the accusation does not include sufficient proof to support or disprove it);
unfounded (the event did not occur or was not based on facts uncovered by the
investigation); or exonerated (the alleged incident did occur in fact, but the action
of the officer was considered to be reasonable and lawful).

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:

• Proceeding to the spot.

• Ascertainment of facts and circumstances of the case.
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• Discovery and arrest of the suspect.

• Collection of evidence which may include:

• Examination of persons concerned and reducing their statement to

writing.
• Search and seizure of places and things respectively considered
necessary.
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.
20

Procedure of inquiry

A brief to section 154

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.

Procedure of preliminary inquiry (Section 157)

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.

What is the need to send the report to the magistrate

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.
21

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

Mainly, there are four types of trial:

• Warrant Case- A warrant case associates itself to the case where the
crimes punishable with death, imprisonment for life or imprisonment for
a term exceeding two years are considered. Trial of warrant cases are
further classified into two more types namely:

1. Cases instituted by a police report- A police report is basically a report

which a Magistrate receives from a police officer under Sec. 173. The
police should send their report as soon as they complete the
investigation and the accused appears in front of a Magistrate before
starting the trial.
2. Cases established other than a police report- Here, no kind police report
or investigation is required. The Magistrate directly receives a complaint
which is filed before him.
The sections from 225-237 of the Criminal Procedure Code basically deals with
the warrant cases by a Court of Session.

• Sessions case- These are the cases where the offences subjected to
punishment by law is death, life imprisonment for a term more than
22

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
23

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]

Summons and warrants case [2(w), 2(x)]

“Summon” is a document that commands a person to whom it is served to appear

before the court and to answer the complaint made against him. Summon is
issued by the Magistrate to the accused under section 204(1) (a) of Cr.P.C, 1973.
“Summon case” means a case relating to an offence, not being a warrant case.

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).
24

Arrest, bail and pre-trial proceeding

Arrest and right of an arrested person [50(1), 50(2), 57, 303, 304]
Section 50 of CrPC says that every police officer or any other person who is
authorised to arrest a person without a warrant should inform the arrested
person about the offence for which he is arrested and other grounds for such an
arrest. It is the duty of the police officer and he cannot refuse it. Section 50A of
CrPC obligates a person making an arrest to inform of the arrest to any of his
friends or relative or any other person in his interest. The police officer should
inform the arrested person that he has a right to information about his arrest to
the nominated person as soon as he is put under custody.

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.

Right to be produced before the Magistrate without unnecessary delay

Section 55 of CrPC states that a police officer making an arrest without a warrant
should produce the arrested person without unnecessary delay before the
Magistrate having jurisdiction or a police officer in charge of the police station,
subject to the conditions of the arrest. Section 76 of CrPC states that the police
officer executing a warrant of arrest should produce the arrested person before
the court before which he is required by law to produce the person. It states that
the person should be produced within 24 hours of arrest. While calculating the
time period of 24 hours, it must exclude the time which is required for the
journey from the place of detaining to the Magistrate Court. Article 22(2) of the
Constitution states that the police officer making an arrest should be produced
before the Magistrate within 24 hours of arrest. If the police officer fails to
25

produce before the Magistrate within 24 hours, he will be liable for wrongful
detention.

Rights to be released on Bail

Subsection(2) of Section 50 of CrPC states that when a police officer arrests any
person without a warrant for an offence other than non-cognizable offence; he
shall inform him that he has a right to release on bail and to make an
arrangement for the sureties on his behalf.

Rights to a fair trial

Any provision related to the right to a fair trial is not given in CrPC, but such rights
can be derived from the Constitution and the various judgements. Article 14 of
the Constitution of states that ”all persons are equal before the law”. It means
that all the parties to the dispute should be given equal treatment.

Right to consult a lawyer

• Section 41D of CrPC states the right of the prisoners to consult his lawyer
during interrogation.
• Article 22(1) of the constitution states that the arrested person has a
right to appoint a lawyer and be defended by the pleader of his choice.
• Section 303 of CrPC states that when a person is alleged to have
committed an offence before the criminal court or against whom
proceedings have been initiated, has a right to be defended by a legal
practitioner of his choice.

Right to free Legal Aid

Section 304 of CrPC states that when a trial is conducted before the Court of
Session, and the accused is not represented by the legal practitioner, or when it
appears that the accused has no sufficient means to appoint a pleader then, the
26

court may appoint a pleader for his defence at the expense of the State. Article
39A obligates a state to provide free legal aid for the purpose of securing justice.
This right has also been explicitly given in the case of Khatri (II) VS State of Bihar.
The court held that “to provide free legal aid to the indigent accused person”. It is
also given at the time when the accused is produced before the Magistrate for the
first time along with time commences. The right of the accused person cannot be
denied even when the accused fails to apply for it. If the state fails to provide
legal aid to the indigent accused person, then it will vitiate the whole trial as void.
In the case of Sukh Das vs Union Territory of Arunachal Pradesh [6], the court
held:- “The right of an indigent accused cannot be denied even when the accused
fails to apply for it”. If the state fails to provide legal aid to the indigent accused
person it will vitiate the whole trial as void.

Right to keep silence

Right to keep silent is not recognized in any law but it can derive its authority
from CrPC and the Indian Evidence Act. This right is mainly related to the
statement and confession made in the court. Whenever a confession or a
statement is made in the court, it is the duty of the Magistrate to find that such a
statement or the confession was made voluntarily or not. No arrested person can
be compelled to speak anything in the court. Article 20 (2) states that no person
can be compelled to be a witness against himself. This is the principle of self-
incrimination. This principle was reiterated by the case of Nandini Satpathy vs P.L
Dani. It stated, “No one can force any person to give any statement or to answer
questions and the accused person has a right to keep silent during the process of
interrogation”.

Right to be Examined by the medical practitioner

Section 54 of CrPC states that when the arrested person alleges that examination
of his body will lead to a fact which will disapprove the fact of commission of an
offence by him, or which will lead to commission of an offence by any other
person against his body, the court may order for medical examination of such
accused person at the request of him (accused) unless the court is satisfied that
such a request is made for the purpose of defeating the justice.
27

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.
28

• 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.

Provision of bail under the code (436-450)

What is bail ?

The term ‘bail’ means a kind of security or bond which is given to release a person
from prison. It is a pro tem release of a criminal before his trial begins. The term
’bail’ is not defined anywhere in the Criminal Procedure Code, 1973, however, the
terms ‘bailable offense’ and ’non-bailable offense’ are defined in Section 2(a) of
Cr.P.C.

Evolution of the concept

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
29

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.

In which cases can you get your client bail?

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
30

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
31

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.

When the arrest is made with the issuance of the warrant

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.
32

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.

Appealability of the order (section 439 of the code)

33

Section 439 of the code states that any orders passed under section 436 of the
code shall be appealable.

• The order made by the magistrate to the session’s judge is appealable.

• In cases when the court of sessions passes an order to the court where
an appeal lies from an order made by such court.
Investigation incomplete (section 167 of the code)

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.
34

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-

• By assessing the severity of the crime in terms of harm to others.

• Suspected criminal history.
• The danger that the release of offenders could present to the
community.
• Suspected community links, family relations, and jobs. there exist two
types of bail bonds which are-

• Security Bond: A security bond views it as a payment bond or a value

bond depending on the financial status of the underlying company being
secured to it.
• Personal Bond: A conditional guarantee promising that the convicted
suspect must appear on all court days, the prisoner will not have to
comply but fulfills the value of the guarantee if the commitment to
appear is violated, the prisoner will not have to comply but will fulfill the
value of the guarantee. It is also known as a release if the pledge to
35

appear is violated. It is also known as a release or accept bond, where

there is no need to pay any fee for the bail.

Complaint to a Magistrate (200-203)

Examination of the complainant

Section 200 of CrPC says that a Magistrate, who is authorised to take account of
the offence took place on a complaint, shall consider upon the oath presented by
both complainant and witnesses if there is any and later the material obtained
from this examination shall be reduced to writing along with the sign of the
complainant and the witnesses and also of the Magistrate. According to the
definition provided in Section 2(d) of CrPC, a complaint can be in any of the forms
both oral or written. Nor does Section 200 or any other section require the
complainant to present a written complaint to the Magistrate personally.
Therefore, the complaints sent to the Magistrate through posts are valid and he
can take action on such complaints also. Whether the complaint is in the form of
writing or oral, Section 200 of Crpc makes it legally mandatory to be examined by
the Magistrate on oath. The mere objective of such an examination of the
complaint presented to the Magistrate is to establish whether there is any direct
or actual case against the person who is being accused of the offence in the
following complaint. Further, it aims to restrict the issue of process on a
complaint which is either false or inappropriate or may be intended only to harass
a person by accusing him of an offence. The provisions provided under Section
200 are not a mere formality but instead made by the legislature to protect and
guard the accused person against the unwarranted complaints. These provisions
are not discretionary but mandatory to be performed by the Magistrate. In some
cases, the non-examination or improper examination of the complaint by the
Magistrate has been considered merely non-uniform and not “ineffective of the
proceedings” in the absence of failure of justice towards the accused. It is also
considered that the non-examination of the complaint by the Magistrate may
cause harm to the complainant, not the person who has been accused by him.
There is no need for re-examination regarding the case ‘complaint by a public
servant or court’ and ‘Magistrate forwards the case to a different Magistrate
under Section 192’.
36

The procedure by Magistrate not competent to take cognizance of the case

According to Section 201 of CrPC, ‘‘If a complaint is made before a Magistrate

who is not competent to take cognizance of the case, then Magistrate will do
either of the two things as follows-

• 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.
Postponement of issue of process

According to Section 202, the order of investigation is called “Post Cognizance

Investigation” which is not the investigation done under Chapter 12 of
CrPC (Section 156(3)). Therefore, any report submitted under this order shall be
done as per Section 202 CrPC and not as that of Section 173(2) of CrPC. This
investigation under Section 202 CrPC is for the limited purpose as asked for by the
Judicial Magistrate. However, the Judicial Magistrate will not order investigation
under Section 202 if:

• The matter is exclusively triable by the Court of Session.

• When the complaint has been made by the public servant and the
matter is not exclusively triable by the Court of Session.
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
37

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.

Commencement of Proceeding before Magistrate (204-210)

Scrutiny of the complainant before issues of process

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.
38

According to this section, the Magistrate can take cognizance when:

1. After receiving a police complaint;

2. After receiving complaints of facts which constitutes any offence;
3. After receiving information from any person other than a police officer,
or upon his own knowledge, that such offence has been committed;
4. The Chief Judicial Magistrate can empower any Magistrate of the second
class to take cognizance of offences which are within his competence to
conduct an inquiry or a trial.
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

Framing of Charges and Joinder of Charges

39

Essential provision related to framing of Charges

• 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

Jurisdiction of the Criminal Courts in Inquiries and Trials (179)

• Section 177 – According to this section, the Court under whose

jurisdiction the offence has been committed only has the authority to
inquire into and try such case.
• Section 178 deals with the situations where the offence has been
committed in more than one place,
• When the place of commission of the offence is uncertain because it has
been committed in several places.
• Where an offence is partly committed in one local area and the rest in
another area.
• When the offence comprises several acts, committed in different local
areas.
If any of the above conditions are fulfilled, then such offence may be inquired into
or tried by a Court having jurisdiction over any of such local area.

Section 179, emphasises that fact that when an act is an offence because of
anything which has been done and as a consequence which has ensued, the said
offence may be inquired into or tried by a court of competent
jurisdiction. Section 180 deals with the place of trial when the act committed is
an offence because it is related to some other offence. According to it the offence
40

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
41

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-

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

• by a person, not being such citizen, on any ship or aircraft registered in
India.
42

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.

Types of trials: Sessions Trial, Warrant Trial, Summons Trial, Summary Trial

Warrant trial (238-250)

Process of a warrant trial

Cases instituted on a police report

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
43

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.

Initial steps in the trial

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.

Discharge of accused if allegations against him are baseless

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
44

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.

Explaining the charge to the accused

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.

Conviction on a guilty plea

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)

Evidence for prosecution

45

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.

Steps in evidence presentation of prosecution

• Fixing date for the examination of witnesses

• Examination of witnesses
• Presentation of evidence
• Record of the evidence
Evidence for the defence

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.

• Written statement of accused

46

• Examination of witnesses for the defence

• Record of the evidence

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.

The procedure for a summons case can be briefly stated as follows:

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.
47

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.

Record in summary trials

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:

• The serial number of the case;

• The date when the offence was committed;
• The date when the report or the complaint was filed;
• The name of the complainant, if any;
• The name, residence and parents’ name of the accused person;
• The offence about which the complaint has been made and any proven
offence (if it exists);
• The value of the property regarding which the offence has been
committed, if the case comes under Section 260(1) (ii) or Section 260(1)
(iii) or Section 260(1) (iv) of the Code;
• The plea of the accused person and his examination, if any;
• The finding of the Court;
• The sentence or any other final order passed by the Court;
•The date when the proceedings ended.
Judgment in cases tried summarily

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
48

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.

Session trial (225-237)

Process of session trial: Session Court deals with criminal matter at a district
level. To be more accurate these offences are of more serious nature, the session
court does not have the power to take cognizance only under Section 199 of the
CrPC it can take cognizance in all other cases the cognizance will be taken by
Magistrate and commit the trail.

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
49

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.

Second Stage of the Trial

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.

Third Stage of the Trial

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
50

Summon trial (251-259)

Explanation of the particulars of the offence

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.

Conviction on 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.

Procedure if the accused not convicted on plea

Section 254 provides about both prosecution and defence case if the accused not
convicted on plea under section 252 and 253.

Prosecution case
51

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.

Hearing of the defence: – (Defence Case)

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

52

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.

If the judgement is of acquittal-

• 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.
If the judgement is of conviction-

• 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.
53

• 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.
Judgment given by Metropolitan Magistrate under Section 355

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
54

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.

Compensation for wrongful arrests under Section 358

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
55

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.

Submission of Death Sentences for Confirmation (366-371)

Submission for conformation to High Court (Section 366)

Section 366 partially answers the question of who can pass a verdict. This section
provides that if a Session Court passes the death sentence against the accused(s)
then the High Court needs to confirm it before it comes into effect. Thereby, it is
necessary to submit the proceedings before the High Court and only after
confirmation from the High Court the execution can be brought into effect, and
not before that.

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.
56

Further Sections provide the powers the High Court has in regard to cases
submitted under Section 366 of the CrPC.

Power to direct further inquiry to be made or additional evidence to be taken

(Section 367)

Sub-section (1) of Section 367 of the CrPC provides that when the proceeding for
confirmation of the death penalty is submitted to the High Court and it notices
any point of innocence or guilt of the accused, it may either direct the Sessions
Court or itself to make further inquiry into it or take additional evidence into
consideration. It is usually done when the High Court feels that the Sessions Court
has missed some points or factors.

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.

Power to the High Court to confirm sentence or annul conviction (Section 368)

Section 368 provides that when a case is submitted to the High Court under
Section 366 of the Code of Criminal Code, the High Court may;
57

• 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.

Confirmation or new sentence to be signed by two judges (Section 369)

Section 369 provides that whenever a case is submitted to the High Court under
Section 366 of CrPC it shall be heard by a divisional bench i.e. at least by two or
more judges. For confirmation of:

• 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

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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.
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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.

State of Madhya Pradesh v. Budhram, 1995

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.

Execution, Suspension, Remission and Commutation of Sentences (432-435)

60

Execution of sentence of death

Execution of order passed under Section 368

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:

• Confirm the sentence given by the Session Court.

• Annul the conviction and convict the accused of the same charges as
that of the Session Court or may order for fresh proceedings on the
same or altered charges.
• May acquit the person, as the time for the appeal has not lapsed yet or
the appeal has been disposed of.
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.

Suspension and remission of sentences

Constitutional provisions

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:
61

• 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.

• Death sentence to any other punishment provided in the IPC.

• Imprisonment for life to any other imprisonment not exceeding fourteen
years or fine.
62

• Sentence of rigorous imprisonment for simpler imprisonment which the

person has been sentenced or a fine.
• Sentence for a simple sentence to a fine.
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.

Object and scope of appeals

Even though Criminal Procedure Code (CrPC), does not define appeal, legally it is
to be understood as judicial review done by a higher court of a decree, order or
judgment passed by a subordinate court. The Cambridge dictionary
defines appeal as “a request made to a court of law or to someone in authority to
change a previous decision.”

In case of no law for appeal

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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.

Appeals from convictions

Defendants convicted of an offence are not always satisfied with the judgment
and may think they have been wrongfully convicted. In such circumstances, they
may ask a higher court to review the judgment or order passed under Section 374
of the code. The typical hierarchy of the state consists of:

• The Trial Court or Court of Session;

• The High Court;
• The Supreme Court.

Appeal to the Court of Session

As per Section 374(3), when an order or decree for conviction is made in a trial
conducted by Metropolitan Magistrate or Assistant Session Judge or Magistrate of
the first class or Magistrate of the second class, then the convicted may appeal to
the Court of Session. If a sentence for conviction is made under Section 325 of the
code, i.e after referring to the Chief Judicial Magistrate, then such conviction can
also be appealed to the Court of Session. Lastly, when a convict is released on
probation of good conduct or after admonition under Section 360 of the code, the
order may be appealed to the Court of Session.

Appeal to the High Court

According to Section 374(2) of the Code, any person convicted may appeal to the
High Court against a judgment passed by the Sessions Judge or an Additional
Sessions Judge or on a trial held by any other court wherein a sentence of
imprisonment for 7 years or less was passed. For instance, when a judgment is
passed by the Sessions Judge, imprisoning the defendant for 5 years, then such a
defendant can appeal to the High Court if he thinks the judgment was unfair.
64

Appeal to the Supreme Court

Section 374(1) of the Code, allows any person convicted by the High Court in its
extraordinary original criminal jurisdiction to appeal for the same in the Supreme
Court of India. According to Section 379 of the Code, where the High Court on
appeal, reverse an order of acquittal of the defendant and convicted him with
imprisonment for not less than 10 years, life imprisonment or death penalty, the
convict may appeal to the Supreme Court.

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.

Reference and Revision (395-405)

The word “revision” has not been defined in CrPC, however, as per Section 397 of
CrPC, the High Court or any Sessions Judge have been empowered to call for and
examine the records of any proceeding satisfy oneself:

• as to the correctness, legality, or propriety of any finding, sentence or

order, whether recorded or passed, and
• as to the regularity of any proceedings of an inferior court.
Moreover, they have the powers to direct the execution of any sentence or an
order to be suspended. Not just this, but to even direct to release the accused on
bail or on his own bond if the accused is in confinement. They may even order an
inquiry subject to certain limitations.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
65

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
66

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”

Inherent Power of Court (482)

Section– 482 of the Code of Criminal Procedure

“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.
When can the inherent powers be exercised?

• 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).
67

• 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.

Transfer of Criminal Cases (406-411)

Section 406 of the Code of Criminal Procedure confers the power upon the
Supreme Court to transfer cases and appeals. The Code grants the widest
discretionary powers to the Supreme Court to transfer any case or appeal lying
before the High Court to any other High Court of any state in the country in order
to meet the ends of justice and fulfil the principle of natural justice. The
application requesting the transfer of any case or appeal pending before the High
Court can be moved to the Supreme Court by any of the following persons:

• Who is under the apprehension of unfair trial by the court; or

68

• Who is unable to find any proper justice being served to himself; or

• Attorney General or Advocate General of India.
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.
69

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.

Grounds for transfer of appeal and cases

• 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
70

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.

Circumstances in which HC may order the transfer of a case or appeal

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.

Plea Bargaining (265-A)

A sense of confidence in the courts is essential to maintain the fabric of ordered
liberty for a free people and three things could destroy that confidence and do
71

incalculable damage to society: The first being that people come to believe that
inefficiency and delay will drain even a just judgment of its value.

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.
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Procedure For Plea Bargaining

Plea Bargaining can happen in a number of ways:

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
Plea Bargaining Can Happen In The Following Ways –

• 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,
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• The hearing must take place in Court

• The Court must satisfy itself that the accused is voluntarily pleading
guilty and there is no existence of coercive bargaining to the prejudice of
the accused
• Any Court rejecting a plea bargaining application must be kept
confidential to prevent prejudice to the accused.
Case laws under crpc

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
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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
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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)