2022

End-Term Examination
CODE OF CRIMINAL PROCEDURE
Answer 1

Section 541 of the CrPC talks about the fact that the accused in a non-
bailable offence cannot be held in detention for more than 24 hours
however, Section 1672 of the code allows the authorities to obtain a special
order from the magistrate to detain the accused beyond 24 hours if they feel
that it’s imperative for investigation. In case of non-bailable offences, the
total period of detention the magistrate can authorise is ninety-days.
However, the said provision also says that after the period of ninety-days,
the accused, if prepared, can furnish bail. This condition is followed by a
pre-requirement i.e., the accused needs to furnish bail before the charge-
sheet is submitted by the police. If no bail was granted under section 167(2) 3
prior to the submission of the charge-sheet, the accused could seek bail only
under section 4974 i.e., there is no default bail post-submission of the
charge-sheet. In the cases of Sanjay Dutt v. State5 and the Aslam Babalal
Desai6 case, it was held that if an accused person fails to exercise his right to
be freed on bail due to the prosecution's failure to file the charge-sheet
within the maximum period allowed by law, he cannot claim that he had an
indefeasible right to do so at any time, even if the charge-sheet has been
filed in the meanwhile. However, if he uses his right within the time limit
set by law and is freed on bond as a result, he cannot be re-arrested simply
because the charge-sheet has been filed. An exact opposite instance is that
of Sudha Bhardwaj v. NIA7, wherein the period of judicial custody also got
over however, the police did not submit the charge-sheet. In the particular
case, Sudha Bhardwaj got default bail under section 167 of the act since she
furnished it before the authorities submitted the charge-sheet. Her ninety-
day period got over and there was no lawful order of extension of her period
of detention. Since she asked for bail between the expiry of the period of
detention and submission of the charge-sheet, bail was granted.

Drawing a contrast to the case at hand, the police presented Bittu before the
magistrate in the prescribed period i.e., 24 hours, post which the police
asked for a special permission for investigation. The magistrate granted the
authorities a period of ninety-days considering Bittu was accused of rape,
which is a non-bailable offence. Though the ninety-day period got over and
the police still didn’t file the charge-sheet, Bittu had the opportunity to get
default-bail only if he furnished it under section 167(2) and he would’ve
been granted it, similar to the Sudha Bhardwaj case. Taking into account
that the police took almost a week to file the charge-sheet and Bittu did not
ask for bail, it’s a missed-opportunity on Bittu’s side. The police finally
filed the charge-sheet on 4th February i.e., 6 days post his judicial custody
got over however, his team of lawyers asked for bail on the afternoon of
when the report was submitted by the authorities, therefore, his plea for

1
The Code of Criminal Procedure, 1973, §54, No. 02, Acts of Parliament, 1973 (India).
2
The Code of Criminal Procedure, 1973, §167, No. 02, Acts of Parliament, 1973 (India).
3
The Code of Criminal Procedure, 1973, §167, No. 02, Acts of Parliament, 1973 (India).
4
The Code of Criminal Procedure, 1973, §497, No. 02, Acts of Parliament, 1973 (India).
5
Sanjay Dutt v. State II, (1994) 5 SCC 410.
6
Aslam Babalal Desai v. State of Maharashtra, (1992) 4 SCC 272.
7
Sudha Bhardwaj v. National Intelligence Agency, 2021 SCC Bom 3679.

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default bail will be rejected. Now that default-bail under section 167(2) is
out of the picture, Bittu will have to prepare and furnish bail under section
437 of the code.

Answer 2

Anticipatory bail, as explained by section 4388 of the CrPC, is a pre-arrest

bail, meaning it is granted before the person is arrested. This concept was
first laid down in the case of Gurbaksh Singh Sibbia v. State of Punjab 9
wherein the court laid down 8 guidelines to be followed by the High Courts
and Session’s court while adjudicating on the matter of anticipatory bail.
With due course of time, various confusions arose while deciding on the
matters related to anticipatory bail. In the case of Gurbaksh Singh, it was
held that it’s upon the courts to judicate upon the duration of bail which may
even be from when the charge-sheet is filed till the trial ends. The
aforementioned case linked anticipatory bail under Article 2110 of the
constitution however in Jai Prakash Singh v. State of Bihar 11 and State of
M.P. v. Ram Krishna Balothia12, it was held that the aforementioned is not
an essential ingredient of Article 21. This confusion was elucidated in the
case of Sushila Aggarwal v. State13 wherein it was held that failing to
include article 21 when interpreting section 438 is incorrect, and that
anticipatory bail is pro-liberty because it permits someone who is going to
be arrested to approach the court to avoid being arrested. It protects people
from arbitrary arrests and police humiliation, which Parliament
acknowledged as a widespread problem. As a result, the court determined
that cases in which the sessions court or high court was required to grant
anticipatory bail for a limited period of time or to await the outcome of an
investigation in order to avoid bypassing the regular court, or that
anticipatory bail should not be granted in certain types of serious offences,
were not good law. When an accused is granted anticipatory bail, he stays
free until the charge-sheet is filed, meaning that the court has no grounds to
order his arrest and that he has cooperated with the investigation. Unless
there are compelling reasons to do so, such as the accused's behaviour
suggesting he is fleeing justice, evading the court's authority or jurisdiction,
intimidating or attempting to intimidate witnesses, or violating any
condition imposed while granting anticipatory bail, the law does not require
a person to surrender to the court upon receiving a summons for trial. The
bail may be extended until the completion of the trial if the terms of an
anticipatory bail issued are met. It was held in the case of Siddhram Mhetre
v. State of Maharashtra14 that the courts should not impose restrictions on
the ambit and scope of Section 438 CrPC as they were too wide and can't be
8
The Code of Criminal Procedure, 1973, §438, No. 02, Acts of Parliament, 1973 (India).
9
Gurbaksh Singh Sibbia v. State of Punjab, 1978 CriLJ 20 (AB).
10
INDIA CONST. art. 21.
11
Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379
12
State of M.P. v. Ram Krishna Balothia, (1995) 3 SCC 221.
13
Sushila Aggarwal v. State (NCT of Delhi) (2020) 5 SCC 1.
14
Siddhram Mhetre v. State of Maharashtra, (2011) 1 SCC 694

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considered a good law however this was overruled in the Sushila Aggarwal
case. Having respect to the offence, the particular facts, the role of the
offender, circumstances pertaining to him, his likelihood of subverting
justice and his possibility of avoiding or fleeing prosecution, the court
seized of the application under Section 438 may impose conditions.
Drawing a contrast to the case at hand, Bittu was accused of a non-bailable
offence wherein its allowed to seek anticipatory bail from the court under
Section 438 of the Code of Criminal Procedure however the court declined
his petition for bail and gave him a 30-day protection period, post which, he
got arrested. Taken into consideration the case of Sushila Aggarwal,
granting anticipatory bail for a limited period of time, or not granting
anticipatory bail are not good law. The main inference which can be drawn
from the aforementioned case is that the court cannot limit the protection
granted to Bittu for a limited period of 30 days.

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 SECTION-II

Answer 5

The Code of Criminal Procedure grants several rights to citizens under

arrest. The very first is the Right to be informed of the grounds for arrest as
mentioned under Section 5015 of the CrPC. This is one of the fundamental
rights wherein its essential for the arresting person to communicate the
grounds for the arrest to the arrested person without delay, irrespective of
the fact whether it is an arrest with or without the warrant. This is an
important procedure since it allows the detained individual to correct any
mistake, misapprehension, or misunderstanding in the arresting authority's
mind, as well as ask for a writ of habeas corpus, bail, and other expedient
arrangements for his defence under Article 22(1)16 of the constitution. The
cases of Joginder Kumar v. State of U.P.17 and D.K. Basu v. State of West
Bengal18 established this rule under Section 50-A of CrPC wherein it
became obligatory for the police officer to inform the friend/relative of the
arrested person as well as make an entry in the register maintained by the
police. It is also essential to notify the arrested individual as it was held in
the Satish Chandra Rai case that the arrest would be illegal if the arrested
person is not notified about the substance of the warrant. Sections 50, 55 19,
and 7520 recognise the right to be informed of the grounds of arrest in
circumstances where the arrest is made according to a warrant of arrest or
by a police officer without a warrant. If a Magistrate makes an arrest
without a warrant under Section 4321 and 4422, the case is not covered by
Sections 50, 55, or 75, nor by any other provision of the Code requiring the
Magistrate to make an arrest.
The second is to inform the arrested person regarding bail as mentioned
under Section 50(2)23. If a police officer arrests someone without a warrant
for a non-bailable offence, he must inform the person detained that he is
entitled to bail and that he can arrange for sureties on his behalf. Those who
are uninformed of their rights to be released on bond in the case of bailable
offences will surely benefit from this. As a result, this provision may, in
some little way, strengthen people's relationships with cops and reduce
public unhappiness.
15
The Code of Criminal Procedure, 1973, §50, No. 02, Acts of Parliament, 1973 (India).
16
INDIA CONST. art. 22(1).
17
Joginder Kumar v. State of Uttar Pradesh, 1994 AIR 1349.
18
D.K. Basu v. State of West Bengal, AIR 1997 SC 610.
19
The Code of Criminal Procedure, 1973, §55, No. 02, Acts of Parliament, 1973 (India).
20
The Code of Criminal Procedure, 1973, §75, No. 02, Acts of Parliament, 1973 (India).
21
The Code of Criminal Procedure, 1973, §43, No. 02, Acts of Parliament, 1973 (India).
22
The Code of Criminal Procedure, 1973, §44, No. 02, Acts of Parliament, 1973 (India).
23
The Code of Criminal Procedure, 1973, §50(2), No. 02, Acts of Parliament, 1973 (India).

4
The third is to be take the arrested person before the magistrate without
delay. Sections 56 24and 7625 require that whether the arrest is made with or
without the warrant, the arresting authority needs to present the person
under arrest to the magistrate without unnecessary delay. The delay
shouldn’t be later than 24 hours excluding the travel time from place of
arrest to court. It is also important that the arrested person is confined only
in the police station and not any place else before he is presented before the
magistrate.
Fourth is the right of not being detained for more than 24 hours under
section 5726. The arresting authority, as mentioned before, cannot detain the
arrested individual for more than 24 hours until and unless a special order
has been provided by the magistrate under section 167 27. This is a
fundamental right which has been given under article 22(2) 28 of the
constitution. This right is crucial since it was established to prevent arrests
for the purpose of extracting information. and as under Mohd. Suleman v.
King Emperor29, designed with the goal of allowing early access to a court
official who is not affiliated with the police on all bail and discharge issues.
It was mentioned in Khatri v. State of Bihar30 that the police officer will be
held guilty of wrongful detention if they fail to produce the arrested person
to the magistrate withing 24 hours.
Fifth is the right to consult a legal practitioner and this is quite important as
it was held in the Suk Das31 case that failure to comply with this duty, as
well as failure to advise the accused of his or her right, would invalidate the
trial. Section 303 also states that anyone facing legal action under the Code
has the right to be represented by a pleader of his choice. An accused
person's right to consult with a lawyer begins the moment he is
apprehended.
In Khatri v. State of Bihar, the SC ruled that it is necessary to offer free
legal assistance to the accused not only during the trial but also before he is
brought before the court for the first time under the Constitution's
requirement. However, an indigent accused's constitutional entitlement to
free legal representation may be illusory unless he is immediately and
properly informed about it by the court when he is brought before it.
Lastly, under Section 54, it’s the right of the arrested to be examined by a
medical practitioner and Section 5332 compels the arrested to undergo
medical examination to facilitate investigation. The Delhi High Court issued

24
The Code of Criminal Procedure, 1973, §56, No. 02, Acts of Parliament, 1973 (India).
25
The Code of Criminal Procedure, 1973, §76, No. 02, Acts of Parliament, 1973 (India).
26
The Code of Criminal Procedure, 1973, §57, No. 02, Acts of Parliament, 1973 (India).
27
The Code of Criminal Procedure, 1973, §167, No. 02, Acts of Parliament, 1973 (India).
28
INDIA CONST. art. 22(2).
29
Mohd. Suleman v. King Emperor, (1425-25) 30 CWN 985, 987.
30
Khatri (2) v. State of Bihar, (1981) 1 SCC 627.
31
Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401.
32
The Code of Criminal Procedure, 1973, §53, No. 02, Acts of Parliament, 1973 (India).

5
orders requiring magistrates to inquire the arrested person if he has any
complaints of torture or maltreatment while in police custody due to the
magistrates' failure to comply with this key rule.
Non-compliance to any of the provisions mentioned above results in
departmental action.

Answer 6

Though there is no proper definition of an F.I.R., Section 15433 of the CrPC

talk about information in respect to cognizable offences. It is the
information supplied to the police orally or in writing about the commission
of a cognizable offence in order to set the police in motion to investigate the
case. If the report is given orally, it must be written down. In Lalita Kumar
v. Government of U.P.34, the SC stressed on the importance of the F.I.R. and
said that Section 154 is mandatory in nature for the commencement of the
investigation.
When we talk about a ‘second F.I.R.’, there is a test of sameness which is
brought into the picture. The court concluded in the case of Surender
Kaushik35 that it is not permissible to file a complaint that would bolster the
facts in a first-instance FIR. Multiple complaints against the same defendant
are likewise prohibited. If two complaints are about the same incident in the
same occurrence or are part of the same transaction, the subject matter is the
same. It was even mentioned in the Anju Chaudhary Case36 that when two
incidents occur at different times with different people involved, there is no
commonality, the purpose is different, and they arise from different
circumstances, the Court will be unable to conclude that they are part of the
same transaction, and thus a common FIR or subsequent FIR, as well as a
common trial, will not be allowed. If the claims in the FIR are distinct and
have a different spectrum, it will be treated as a counter-complaint rather
than an attempt to improve the allegations filed in the first place.
There are, however, certain instances wherein the second FIR is permissible.
First, that it is permissible to file a cross FIR and a FIR based on
counterclaims. In Upkar Singh v. Ved Prakash37, the court stated that the
right of the victim(s) in the instance of a false F.I.R. is jeopardised if a
second F.I.R. on the same offence and against the same individual is
banned. Whether or not a second FIR can be filed is determined by the
nature and circumstances of the incident. In the case of second FIRs, the

33
The Code of Criminal Procedure, 1973, §154, No. 02, Acts of Parliament, 1973 (India).
34
Lalita Kumari v. Govt. of UP and Others AIR 2012 SC 1515.
35
Surender Kaushik v. State of Uttar Pradesh, (2013) 5 SCC 148.
36
Anju Chaudhary v. State of UP (2013) 6 SCC 384.
37
Upkar Singh v. Ved Prakash, (2004) 13 SCC 292.

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courts have clarified and applied the 'Sameness Test,' holding that while a
better version of the same offence cannot be used as a basis for a second
FIR, rival versions of the same incident in several FIRs might. To determine
the similarity of episodes, the Court must evaluate the occurrences' links to
one another or the transactions of occurrence. The court in the
aforementioned case brought the judgement of T.T. Anthony38 into the
picture and said that because an investigation in this regard would have
already begun, and further complaints against the same accused would
amount to an improvement on the facts mentioned in the original complaint,
any further complaint by the same complainant against the same accused,
subsequent to the registration of a case, is prohibited under the CrPC, as laid
down by this Court in the aforementioned case. This rule, however, does not
apply to a counterclaim brought by the accused or on his behalf asserting a
different version of the incident. As a result, if there are two competing
versions of the same episode, the Investigating Agency will file two
separate FIRs, and the investigation will be conducted under both of them
by the same investigating agency, allowing a counter claim to be filed in
relation to the same incident with a different version of events. Another
instance was mentioned in the case of Babubhai v. State of Gujarat39, where
the accused presents a different version or counterclaims which also has to
be investigated by the authorities.
Second is the permissibility of the second F.I.R. when there is a separate
transaction. In Awadesh Kumar Jha v. State of Bihar, it was said that if
distinct events occur after the first F.I.R. is filed, they cannot be considered
part of the same transaction for purposes of further investigation under
Section 17340 of the code.
Third instance is when a new discovery is made in relation to the case.
Nirmal Singh Kahlon v. State of Punjab 41 held that a second fir can be
maintained if additional facts are discovered in the case. The court said that
the second FIR would be maintainable not just because of the various
versions, but also because fresh discoveries based on factual grounds would
be made. Police authorities may make further discoveries at a later time.
These instances do not, however, include cases in which the investigation
was started on a false premise. When an investigation is started on the basis
of a false case, the situation will be governed by criminal procedures under
Section 48242 of the CrPC. In this situation, a new FIR might be filed to
begin the inquiry.

38
T.T Antony v. State of Kerala 2001 6 SCC 181.
39
Babubhai v. State of Gujarat, (2010) 12 SCC 254.
40
The Code of Criminal Procedure, 1973, §173, No. 02, Acts of Parliament, 1973 (India).
41
Nirmal Singh Kahlon v. State of Punjab, AIR 2009 SC 984.
42
The Code of Criminal Procedure, 1973, §482, No. 02, Acts of Parliament, 1973 (India).

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