CRPC law notes

By Rachit Garg - March 10, 2021

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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.

Table of Contents
 0.1. What is an Offence?
0.2. Types of Criminal Offences:
0.3. Functionaries under crpc
0.3.1. Hierarchy of court ( section 6-23)
0.3.2. Police as functionary (sec 36)
0.3.3. Public prosecutor (section 24 to 25 A)
0.4. Basic concepts and definition
0.4.1. Bailable and non-bailable offences [2(a)]
0.4.2. Cognizable and non-cognizable offences (154)
0.4.3. Charge [2(b)]
0.4.4. Police report [173(2)]
0.4.5. Investigation [2(h)]
0.4.6. Inquiry [2(g)]
0.4.7. Trial
0.4.8. Summons and warrants case [2(w), 2(x)]
0.5. Arrest and right of an arrested person [50(1), 50(2), 57, 303, 304]
0.5.1. Right to be produced before the Magistrate without unnecessary delay
0.5.2. Rights to be released on Bail
0.5.3. Rights to a fair trial
0.5.4. Right to consult a lawyer
0.5.5. Right to free Legal Aid
0.5.6. Right to keep silence
0.5.7. Right to be Examined by the medical practitioner
0.5.8. Other Rights
0.6. Provision of bail under the code (436-450)
0.6.1. What is bail ?
0.6.2. Circumstances under which bail is given by police
0.6.3. Types of bail
0.6.4. Procedure of bail
0.7. Why do we need Criminal Procedure Law?
0.7.1. What is an Offence?
0.7.2. Types of Criminal Offences:
0.8. Functionaries under crpc
0.8.1. Hierarchy of court ( section 6-23)
0.8.2. Police as functionary (sec 36)
0.8.3. Public prosecutor (section 24 to 25 A)
0.9. Basic concepts and definition
0.9.1. Bailable and non-bailable offences [2(a)]
0.9.2. Cognizable and non-cognizable offences (154)
0.9.3. Charge [2(b)]
0.9.4. Police report [173(2)]
0.9.5. Investigation [2(h)]
0.9.6. Inquiry [2(g)]
0.9.7. Trial
0.9.8. Summons and warrants case [2(w), 2(x)]
0.10. Arrest and right of an arrested person [50(1), 50(2), 57, 303, 304]
0.10.1. Right to be produced before the Magistrate without unnecessary delay
0.10.2. Rights to be released on Bail
0.10.3. Rights to a fair trial
0.10.4. Right to consult a lawyer
0.10.5. Right to free Legal Aid
0.10.6. Right to keep silence
0.10.7. Right to be Examined by the medical practitioner
0.10.8. Other Rights
0.11. Provision of bail under the code (436-450)
0.11.1. What is bail ?
0.11.2. Circumstances under which bail is given by police
0.11.3. Types of bail
0.11.4. Procedure of bail
0.11.5. Bail bonds
0.12. Complaint to a Magistrate (200-203)
0.12.1. Examination of the complainant
0.12.2. The procedure by Magistrate not competent to take cognizance of the case
0.13. Commencement of Proceeding before Magistrate (204-210)
0.13.1. Examination of complainant
0.14. Framing of Charges and Joinder of Charges
0.15. Jurisdiction of the Criminal Courts in Inquiries and Trials (179)
0.16. Types of trials: Sessions Trial, Warrant Trial, Summons Trial, Summary Trial
0.16.1. Warrant trial (238-250)
0.16.2. Process of a warrant trial
0.16.3. Summary Trial
0.16.4. Session trial (225-237)
0.16.5. Summon trial (251-259)
0.17. Judgement and Sentences under the Code
0.17.1. Judgement (353-360)
0.18. Submission of Death Sentences for Confirmation (366-371)
0.18.1. Submission for conformation to High Court (Section 366)
0.18.2. Power to direct further inquiry to be made or additional evidence to be taken (Section 367)
0.18.3. Power to the High Court to confirm sentence or annul conviction (Section 368)
0.18.4. Confirmation or new sentence to be signed by two judges (Section 369)
0.19. General Provisions as to Inquiries and Trial
0.19.1. Mode of taking and Recording Evidence
0.19.2. Marking of Exhibits
0.19.3. Cases
0.20. Execution, Suspension, Remission and Commutation of Sentences (432-435)
0.20.1. Execution of sentence of death
0.20.2. Suspension and remission of sentences
0.21. Appeals (372-394)
0.21.1. Object and scope of appeals
0.21.2. Appeals from convictions
0.21.3. Appeal to the Court of Session
0.21.4. Appeal to the High Court
0.21.5. Appeal to the Supreme Court
0.22. Reference and Revision (395-405)
0.23. Inherent Power of Court (482)
0.24. Transfer of Criminal Cases (406-411)
0.25. Plea Bargaining (265-A)
0.25.1. Procedure For Plea Bargaining
0.25.2. Bail bonds
0.26. Complaint to a Magistrate (200-203)
0.26.1. Examination of the complainant
0.26.2. The procedure by Magistrate not competent to take cognizance of the case
0.27. Commencement of Proceeding before Magistrate (204-210)
0.27.1. Examination of complainant
0.28. Framing of Charges and Joinder of Charges
0.29. Jurisdiction of the Criminal Courts in Inquiries and Trials (179)
0.30. Types of trials: Sessions Trial, Warrant Trial, Summons Trial, Summary Trial
0.30.1. Warrant trial (238-250)
0.30.2. Process of a warrant trial
0.30.3. Summary Trial
0.30.4. Session trial (225-237)
0.30.5. Summon trial (251-259)
0.31. Judgement and Sentences under the Code
0.31.1. Judgement (353-360)
0.32. Submission of Death Sentences for Confirmation (366-371)
0.32.1. Submission for conformation to High Court (Section 366)
0.32.2. Power to direct further inquiry to be made or additional evidence to be taken (Section 367)
0.32.3. Power to the High Court to confirm sentence or annul conviction (Section 368)
0.32.4. Confirmation or new sentence to be signed by two judges (Section 369)
0.33. General Provisions as to Inquiries and Trial
0.33.1. Mode of taking and Recording Evidence
0.33.2. Marking of Exhibits
0.33.3. Cases
0.34. Execution, Suspension, Remission and Commutation of Sentences (432-435)
0.34.1. Execution of sentence of death
0.34.2. Suspension and remission of sentences
 0.35. Appeals (372-394)
0.35.1. Object and scope of appeals
0.35.2. Appeals from convictions
0.35.3. Appeal to the Court of Session
0.35.4. Appeal to the High Court
0.35.5. Appeal to the Supreme Court
0.36. Reference and Revision (395-405)
0.37. Inherent Power of Court (482)
0.38. Transfer of Criminal Cases (406-411)
0.39. Plea Bargaining (265-A)
0.39.1. Procedure For Plea Bargaining

What is an Offence?
An offence is a transgression of the law, by action or omission. That means there may be some
cases where the law requires you to abstain or refrain from performing a particular act. There may
also be cases where the law requires you to take a positive action, failing which you may be held
liable for the offence

Civil offences are against private persons (individuals like you and me) but criminal offences are
against the State. The State, represented by the Prosecutor, will argue the case against the
defendant. So now, the prosecutor will make the case against the suspect, by submitting the issue
sheet (pleadings) and the necessary evidence.

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

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.

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 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 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) can not be given a death penalty or a punishment of imprisonment for life.
Chief Judicial Magistrate or any other Court specially empowered under the Children Act, 1960
(60 of 1960) tries such type of cases.

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 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 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 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.

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

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 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 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 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.

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 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.

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.

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.

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 seven years, in such cases trial has to be dealt in
a Sessions court after the case has already been forwarded by a Magistrate to the Court or after
the commission of the crime. Sections as mentioned in the CrPC starting from 238-250 handle
the warrant cases by Magistrates. As decided in case of the Inspector of Police vs R. Jeeva Jothi
And Ors., the Magistrate showed some irregularities while conducting an enquiry of a case after
a final report was submitted by the inspector of police to him. As mentioned in the CrPC, that
when a Magistrate accepts a police report u/s 190(b), the Magistrate should take cognizance of
that particular offence also. Under section 209, a Magistrate when he has noted that the case
can be exercised only in the Court of Sessions, it is compulsory for him that the case should be
passed on to the correct authorities who have proper jurisdiction over the case after considering
the procedure and formalities as mentioned under section 207 and 208. In the present case, the
Magistrate considered all the materials and documents related to the case and discharged the
accused for the offences mentioned under section 307 and 450 of IPC, which a Magistrate is not
allowed to do so and carries no power for the same. And after the deletion, the Magistrate took
the case into his file and started a trial which is clearly prohibited under the law.

The Madras High Court in this case questioned the competency of the Magistrate and also stated
that the decisions taken and the procedure adopted by the Magistrate were unlawful and wrong in
nature and held that without further delaying the case, it should be sent to the Court of Sessions
with immediate effect.

Summons cases- These are the cases where those crimes where the punishment for the offence
is less than two years falls under the category of the summons cases, further in these cases
there is no requirement of framing the charges. The Court upon finding these cases issues a
‘notice’ as a material for the accusation and then sends it to the accused. If there is any kind of
possibility that the charges in summons cases are such that they might be converted into a
warrant case in the eyes of the Magistrate for serving the justice.

In the case of Gulabjeet Singh & Ors vs Ravel Singh, the issue was whether Section 258 can apply
to the proceedings started under Section 138 of the Negotiable Instruments Act[vii]? Section 258
simply states the proceedings can only be stopped when the cases are filed other than a
complaint, but when the prosecution has already established by the State, then this section would
not be applicable and further elaborated that in such cases where a private party has filed a
complaint then Sec. 258 wouldn’t be applicable. The petition was dismissed by the High Court of
Himachal Pradesh.
 Summary cases- Basically, summary trials are those kinds of trials where speedy justice has to
be given which means those cases which are to be disposed of speedily and the process of these
cases is quite simplified. One thing which is important to note here is that only small offences
are taken as a part of the summary cases, cases which are complicated in nature and are quite
big are reserved for summons or warrant trials. With this type of trial, one can easily point out
the concept of ‘justice delayed is justice denied’. A very important procedural part associated
with these kinds of trials is that in summary trials only proceedings are recorded and as such no
big part of proceedings are made. In summary trials the components related to evidences and
the disposition are simply recorded in a brief manner while in regular trials, the evidences and
all the substances related to the cases are carefully considered.[viii]

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).

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
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 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, 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.

Other Rights
Section 55A of CrPC states that it shall be the duty of the person, under whose custody the
arrested person is to take reasonable care of the health and safety of the accused. The arrested
person is to be protected from cruel and inhuman treatment. Section 358 of CrPC gives rights to
the compensation to the arrested person who was groundlessly arrested. Section 41A of CrPC
states that the police officer may give the notice to a person suspected of committing a cognizable
offence to appear before him at such date and place. Section 46 of CrPC prescribes the mode of
the arrest. i.e submission to custody, touching the body physically, or to a body. The police officer
should not cause death to the person while making an arrest unless the arrestee is charged with
an offence punishable with death or life imprisonment. Section 49 of CrPC states that the police
officer should not be more restrained than is necessary for the escape. Restraining or detention
without an arrest is illegal.

In D.K Basu vs State of West Bengal and others [8], this case is a landmark judgement because it
focuses “on the rights of the arrested person and it also obligates the police officer to do certain
activities”. The court also states that if the police officer fails to perform his duty then he will be
liable for contempt of court as well as for the departmental actions. Such matter can be instituted
in any High Court having the jurisdiction over the matter.

In spite of various efforts in protecting the accused from the torture and inhuman treatment, there
are still instances of custodial deaths and the police atrocities. So, the Supreme court issued 9
guidelines for the protection of accused persons and the amendment of various sections of CrPC:-
Section 41B– The police officer who is making an investigation must bear visible, clear and
accurate badge in which the name of the police officer along with his designation is clearly
mentioned. The police officer making an arrest must prepare a cash memo containing a date and
time of arrest which should be attested by at least one member who can be his family member or
any respectable person of a locality. The cash memo should be countersigned by the arrested
person. Section 41D:- The arrested person is entitled to have a right to have one friend, or relative
or any other person who is having interest in him informed about his arrest. The arrestee must be
informed about his right to have someone informed about his right immediately when he is put
under custody or is being detained.
 Entry is to be made in the diary which shall disclose the information relating to the arrested
person and it shall also include the name of the next friend to whom information regarding the
arrest is made. It also includes the name and the particulars of the police officers under whose
custody the arrestee is. An examination is to be conducted at the request of the arrestee and
the major and minor injuries if any found on the body must be recorded. The inspection memo
must be signed by the police officials and the arrested person.

The arrestee has the right to meet his lawyer during and throughout the interrogation.

Copies of all documentation are to be sent to the Magistrate for his record. It also includes a
memo of the arrest.

Section 41C:- The court ordered for the establishment of state and district headquarters, the
police control room where the police officer making an arrest shall inform within 12 hours of
arrest and it needs to be displayed on the conspicuous board.

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 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 believe that there are not sufficient
grounds to prove that the person has committed any non-bailable offense, then he can be
released. This has to be followed in case he appears in any other court other than the Court of
Sessions or the High Court.

Even so, this person can not be granted bail if there are reasons to believe that he is guilty of any
offense punishable with a death sentence or life imprisonment or he has earlier been convicted for
an offense which was punished with punishments of the same nature.

Section 439

It gives special powers to the High Court and the Court of Sessions regarding the same. It enables
these courts to release the people on bail for the offenses specified in Section 437(3) of CrPC. The
court can impose any condition which it thinks is necessary. It further provides that any condition
which the Magistrate imposes can be set aside if the High Court has granted bail after giving notice
to the public prosecutor. The bail, in this case, should be provided in case the offense can be tried
exclusively by the Court of Sessions and is punishable with life imprisonment.

Interim bail

Before the procedure for granting a regular bail or anticipatory bail, interim bail is provided. It is
given for a temporary period. The reason behind this is that the granting of bail by the High Court
or the Court of Session requires documents to be sent by the lower courts, which takes time. So,
for the time being, the provision of interim bail is provided. The Interim bail can be extended and if
its period expires then the person to whom it is granted has to be put in jail again.

Anticipatory bail

Section 438 of the Criminal Procedure Code, provides the direction for a person apprehending
arrest for any reason to believe.It provides that any person who anticipates that he can be
arrested in pursuance of any accusation of committing a non-bailable crime can apply for the grant
of anticipatory bail. Application has to be made to the High Court or the Court of Sessions.
According to this Section if a person is released then there are some conditions that will follow-
The person has to be present during the investigation whenever required, The person can not
induce any person to disable him to enclose the facts against him during the proceedings, The
person shall not leave India without the prior permission of the court. It was further provided that
if any person is arrested by a police officer without a warrant then he can be given bail.

Circumstances under which bail is given by police

When the arrest is made without a warrant
Section 43 of the Cr.P.C. provides for the arrest of any accused by a private person. The private
person after the arrest should bring the convicted person to the police station or hand him over to
the police officer as soon as possible. The police will if it thinks that the convicted person should be
released, release him. Section 56 of the Cr.P.C. enables the police officer to bail that person out
under the provision contained in this Section. Section 169 of Cr.P.C. state that the bail can only be
set when the investigation is made. Until then this Section does not provide bail. Bail can be given
by the officer-in-charge of the police station or the police officer who is investigating. Section 170
of Cr.P.C. confers authority to give bail, in the officer-in-charge of the police station in case the
person is accused of committing a non-bailable offense.

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.

Types of bail
In Gurbaksh Singh Sibbia v. State of Punjab the Supreme Court held that:- “The distinction
between an ordinary order of bail and an order of anticipatory bail is that whereas the former is
granted after arrest and therefore means release from the custody of the police, the latter is
granted in anticipation of arrest and is therefore effective at the very moment of arrest. Police
custody is an inevitable concomitant of arrest for non-bailable offences. An order of anticipatory
bail constitutes, so to say, an insurance against police custody following arrest for offence or
offences in respect of which the order is issued. In other words, unlike a post-arrest order of bail,
it is a pre-arrest legal process which directs that if the person in whose favor it is issued is
thereafter arrested on the accusation in respect of which the direction is issued, he shall
be released on bail.

Procedure of bail
Cases in which bail may be granted (whether release on bail is mandatory?)

In the case of bailable offence it is mandatory to grant bail to the arrested person and in case of
non-bailable offence it depends upon the discretion of the court. Section 436 of the code talks
about the cases in which bail can be taken and section 437 of the code talks about the cases in
which the bail may be taken in case of non-bailable cases.

Cases in which bail to be taken (section 436 of CR.PC)

In this case, if a person who is not guilty of any non-bailable offence and gets arrested without a
warrant by the police authority and is prepared to give bail, then it is the duty of the police
authorities to release him. The person arrested may be released on the bond without submitting
any sureties.

Introduction to CRPC
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.

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

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.

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 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 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) can not be given a death penalty or a punishment of imprisonment for life.
Chief Judicial Magistrate or any other Court specially empowered under the Children Act, 1960
(60 of 1960) tries such type of cases.

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 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 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 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.

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

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 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 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 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.

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 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.

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.

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.

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 seven years, in such cases trial has to be dealt in
a Sessions court after the case has already been forwarded by a Magistrate to the Court or after
the commission of the crime. Sections as mentioned in the CrPC starting from 238-250 handle
the warrant cases by Magistrates. As decided in case of the Inspector of Police vs R. Jeeva Jothi
And Ors., the Magistrate showed some irregularities while conducting an enquiry of a case after
a final report was submitted by the inspector of police to him. As mentioned in the CrPC, that
when a Magistrate accepts a police report u/s 190(b), the Magistrate should take cognizance of
that particular offence also. Under section 209, a Magistrate when he has noted that the case
can be exercised only in the Court of Sessions, it is compulsory for him that the case should be
passed on to the correct authorities who have proper jurisdiction over the case after considering
the procedure and formalities as mentioned under section 207 and 208. In the present case, the
Magistrate considered all the materials and documents related to the case and discharged the
accused for the offences mentioned under section 307 and 450 of IPC, which a Magistrate is not
allowed to do so and carries no power for the same. And after the deletion, the Magistrate took
the case into his file and started a trial which is clearly prohibited under the law.

The Madras High Court in this case questioned the competency of the Magistrate and also stated
that the decisions taken and the procedure adopted by the Magistrate were unlawful and wrong in
nature and held that without further delaying the case, it should be sent to the Court of Sessions
with immediate effect.

Summons cases- These are the cases where those crimes where the punishment for the offence
is less than two years falls under the category of the summons cases, further in these cases
there is no requirement of framing the charges. The Court upon finding these cases issues a
‘notice’ as a material for the accusation and then sends it to the accused. If there is any kind of
possibility that the charges in summons cases are such that they might be converted into a
warrant case in the eyes of the Magistrate for serving the justice.

In the case of Gulabjeet Singh & Ors vs Ravel Singh, the issue was whether Section 258 can apply
to the proceedings started under Section 138 of the Negotiable Instruments Act[vii]? Section 258
simply states the proceedings can only be stopped when the cases are filed other than a
complaint, but when the prosecution has already established by the State, then this section would
not be applicable and further elaborated that in such cases where a private party has filed a
complaint then Sec. 258 wouldn’t be applicable. The petition was dismissed by the High Court of
Himachal Pradesh.

Summary cases- Basically, summary trials are those kinds of trials where speedy justice has to
be given which means those cases which are to be disposed of speedily and the process of these
cases is quite simplified. One thing which is important to note here is that only small offences
are taken as a part of the summary cases, cases which are complicated in nature and are quite
big are reserved for summons or warrant trials. With this type of trial, one can easily point out
the concept of ‘justice delayed is justice denied’. A very important procedural part associated
with these kinds of trials is that in summary trials only proceedings are recorded and as such no
big part of proceedings are made. In summary trials the components related to evidences and
the disposition are simply recorded in a brief manner while in regular trials, the evidences and
all the substances related to the cases are carefully considered.[viii]

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).

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
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 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.

Other Rights
Section 55A of CrPC states that it shall be the duty of the person, under whose custody the
arrested person is to take reasonable care of the health and safety of the accused. The arrested
person is to be protected from cruel and inhuman treatment. Section 358 of CrPC gives rights to
the compensation to the arrested person who was groundlessly arrested. Section 41A of CrPC
states that the police officer may give the notice to a person suspected of committing a cognizable
offence to appear before him at such date and place. Section 46 of CrPC prescribes the mode of
the arrest. i.e submission to custody, touching the body physically, or to a body. The police officer
should not cause death to the person while making an arrest unless the arrestee is charged with
an offence punishable with death or life imprisonment. Section 49 of CrPC states that the police
officer should not be more restrained than is necessary for the escape. Restraining or detention
without an arrest is illegal.

In D.K Basu vs State of West Bengal and others [8], this case is a landmark judgement because it
focuses “on the rights of the arrested person and it also obligates the police officer to do certain
activities”. The court also states that if the police officer fails to perform his duty then he will be
liable for contempt of court as well as for the departmental actions. Such matter can be instituted
in any High Court having the jurisdiction over the matter.

In spite of various efforts in protecting the accused from the torture and inhuman treatment, there
are still instances of custodial deaths and the police atrocities. So, the Supreme court issued 9
guidelines for the protection of accused persons and the amendment of various sections of CrPC:-
Section 41B– The police officer who is making an investigation must bear visible, clear and
accurate badge in which the name of the police officer along with his designation is clearly
mentioned. The police officer making an arrest must prepare a cash memo containing a date and
time of arrest which should be attested by at least one member who can be his family member or
any respectable person of a locality. The cash memo should be countersigned by the arrested
person. Section 41D:- The arrested person is entitled to have a right to have one friend, or relative
or any other person who is having interest in him informed about his arrest. The arrestee must be
informed about his right to have someone informed about his right immediately when he is put
under custody or is being detained.

Entry is to be made in the diary which shall disclose the information relating to the arrested
person and it shall also include the name of the next friend to whom information regarding the
arrest is made. It also includes the name and the particulars of the police officers under whose
custody the arrestee is. An examination is to be conducted at the request of the arrestee and
the major and minor injuries if any found on the body must be recorded. The inspection memo
must be signed by the police officials and the arrested person.

The arrestee has the right to meet his lawyer during and throughout the interrogation.

Copies of all documentation are to be sent to the Magistrate for his record. It also includes a
memo of the arrest.

Section 41C:- The court ordered for the establishment of state and district headquarters, the
police control room where the police officer making an arrest shall inform within 12 hours of
arrest and it needs to be displayed on the conspicuous board.
 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 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 believe that there are not sufficient
grounds to prove that the person has committed any non-bailable offense, then he can be
released. This has to be followed in case he appears in any other court other than the Court of
Sessions or the High Court.
Even so, this person can not be granted bail if there are reasons to believe that he is guilty of any
offense punishable with a death sentence or life imprisonment or he has earlier been convicted for
an offense which was punished with punishments of the same nature.

Section 439

It gives special powers to the High Court and the Court of Sessions regarding the same. It enables
these courts to release the people on bail for the offenses specified in Section 437(3) of CrPC. The
court can impose any condition which it thinks is necessary. It further provides that any condition
which the Magistrate imposes can be set aside if the High Court has granted bail after giving notice
to the public prosecutor. The bail, in this case, should be provided in case the offense can be tried
exclusively by the Court of Sessions and is punishable with life imprisonment.

Interim bail

Before the procedure for granting a regular bail or anticipatory bail, interim bail is provided. It is
given for a temporary period. The reason behind this is that the granting of bail by the High Court
or the Court of Session requires documents to be sent by the lower courts, which takes time. So,
for the time being, the provision of interim bail is provided. The Interim bail can be extended and if
its period expires then the person to whom it is granted has to be put in jail again.

Anticipatory bail

Section 438 of the Criminal Procedure Code, provides the direction for a person apprehending
arrest for any reason to believe.It provides that any person who anticipates that he can be
arrested in pursuance of any accusation of committing a non-bailable crime can apply for the grant
of anticipatory bail. Application has to be made to the High Court or the Court of Sessions.
According to this Section if a person is released then there are some conditions that will follow-
The person has to be present during the investigation whenever required, The person can not
induce any person to disable him to enclose the facts against him during the proceedings, The
person shall not leave India without the prior permission of the court. It was further provided that
if any person is arrested by a police officer without a warrant then he can be given bail.

Circumstances under which bail is given by police

When the arrest is made without a warrant

Section 43 of the Cr.P.C. provides for the arrest of any accused by a private person. The private
person after the arrest should bring the convicted person to the police station or hand him over to
the police officer as soon as possible. The police will if it thinks that the convicted person should be
released, release him. Section 56 of the Cr.P.C. enables the police officer to bail that person out
under the provision contained in this Section. Section 169 of Cr.P.C. state that the bail can only be
set when the investigation is made. Until then this Section does not provide bail. Bail can be given
by the officer-in-charge of the police station or the police officer who is investigating. Section 170
of Cr.P.C. confers authority to give bail, in the officer-in-charge of the police station in case the
person is accused of committing a non-bailable offense.

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.

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)

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.

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 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’.

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
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.

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

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
which has been committed first has to be inquired into or tried, when two acts are done in
connection with each other and both are offences, by the court under whose jurisdiction either of
the act has been committed. In all such provisions, the emphasis is always on the place where the
offence has been committed, to find the jurisdiction. But, section 181 specifies conditions in case
of certain offences. According to section 181(1), the trial can also be commenced where the
accused is found, besides the place where the offence was committed. Section 181(1) talks
about the offences, when not committed in a single place. It deals with the following cases. Thug,
or murder committed while performing the act of thug, dacoity, or dacoity with murder etc- where
the offence is committed or where the accused is found.

Kidnapping or abduction of a person- the place from where the person was kidnapped/ abducted or
where the person was concealed or conveyed or detained. Theft, extortion or robbery – the Court
where the offence has been committed or where the stolen property is possessed, received or
delivered, has the jurisdiction to try such a case. Criminal misappropriation or criminal breach of
trust- where the offence has been committed or where any part of the property which is the
subject matter of the offence has been received or retained, required to be returned or accounted
for, by the accused. But the above section deals with offences when the offender is travelling, as
evident from the nature of the offences as specified under this section.

Section 182 deals with offences committed by letters etc. Under this section, if any offence
includes cheating, if the victim has been deceived by means of letters or telecommunication
messages, it shall be looked into by the Court under whose local jurisdiction such letters or
messages have been sent or received; and under the local jurisdiction of the Court in which the
property has been delivered by the person deceived or has been received by the accused person.

Section 183 deals with offences which have been committed during journey or voyage. When a
person commits an offence, during journey or against a person who is travelling, or the thing in
respect of which, the offence has been committed is in due course of its journey or voyage, the
offence has to be inquired into or tired by a Court through or into whose local jurisdiction that
person or thing has passed, during the journey. The place of trial for offences which are triable
together consists of two circumstances. When any person commits offences, such that he may be
charged with, tried at one trial for, each such offence according to the provisions of section 219,
section 220 or section 221. When the offences or offences have been committed by several
persons, in a manner that the Court may charge and try them together, according to the provisions
of section 223. In either of the circumstances, the Court which is competent to inquire and try
such do the same. section 185 deals with the power of the State Government, according to which
the government can direct that any cases or class of cases which have been committed for trial in
any district, may be tried in a sessions court. It has to ensure that such direction is not
inconsistent with any of the directions which have been already issued by any other Superior
Court, as per the Constitution, or as mentioned under the Code of Criminal Procedure or under any
other law for the time being in force.Section 186 addresses the situation wherein the cognizance
of a particular offence has been taken by two or more courts and confusion arises as to which of
the Courts shall inquire into or try that offence, in such a case, only the High Courts have the
authority to resolve the confusion. The criteria for resolving such issues are as follows.

If the same High Court supervises the courts involved, then by that High Court

If the same High Court does not supervise the courts involved then, by the High Court which
first commenced the proceedings as an appellate criminal court. Thereafter, all the other
proceedings in respect of that offence shall be discontinued.

Section 187 states the power of a Magistrate to issue summons or warrant for offences which
have been committed beyond his local jurisdiction. In such a situation the Magistrate has the
authority to order such a person to be produced before him and then send him to the Magistrate of
competent jurisdiction.

The conditions related to the offences when committed outside the territory of India have been
dealt with under section 188. According to this section, when an offence is committed outside
India-

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.

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 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 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

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

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.

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 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 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

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

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

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.

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 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 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.

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;
 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

Mode of taking and Recording Evidence

Section 272 to 283 of CrPC read with rules under Chapter XII of General Rules and Circular Order
Volume I, explains the Mode of taking and recording Evidence in criminal cases. The following are
the modes of recording evidence:

Section 273– It is mandatory to record all the evidence only in the presence of the accused when
his personal attendance has been dispensed, the evidence must be recorded in the presence of a
pleader.

Section 274– Magistrate shall record a memorandum of the substance of evidence in the court
language and must be signed by the Magistrate.

Section 275(1)– In all the warrant cases, the evidence of each witness shall be in writing by
Magistrate or under his direction if the Magistrate is unable to do so due to some physical or other
incapacities, under his direction and superintendence, by the officer of the court who is appointed
by the Magistrate on his behalf. The evidence under this subsection is to be recorded by audio-
video electronic.

Section 275(3)– This section permits the Magistrate to record evidence in question and answer
form.

Section 276– In Session Court, the recording should be done in a narrative form. The presiding
officer at his discretion can take down any part of the evidence in question and answer format
which has to be signed by him

Section 278– When the evidence of a witness is completed, it should be read over to the accused
or his pleader. This shouldn’t be done at the end of the day when all the witnesses have been
examined. The evidence if needed can be corrected by the accused.

Section 280– The presiding judge or magistrate is empowered to record the remarks.

Marking of Exhibits
Some evidence shall be submitted by the prosecution, this evidence has to be marked with the
number in the order in which they are submitted. The documents that are admitted on behalf of
defence shall be marked with capital letter alphabets. If in case neither party does not accept the
evidence then the evidence shall be marked as Ext C-I, C-II etc.

If more than one number of documents are of similar nature, then the small letter or small number
is added in order to distinguish each document in the series. After the evidence is proved and
admitted it shall be marked with a Roman number. Example MO-I, MO-II etc. the bench clerk of
the court shall prepare the list of articles which shall be signed by the Judge.

Cases
Javer Chand and Ors. V. Pukhraj Surana, 1961

In this case, it was held that the Court does not proceed further whenever an objection is raised in
the court without passing any order on such an objection. If there is an objection on the stamp
duty of a document, then objection will be decided then and there before proceeding further.

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)

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:

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.

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

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.

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 is to set
right a patent defect or an error of jurisdiction or law or the perversity which has crept in the
proceeding.”

The High Court has the power to take up a revision petition on its own motion i.e. suo moto or on
the petition by an aggrieved party or any other party. The Allahabad High Court held in the case of
Faruk @ Gaffar vs State Of U.P.[22] that “whenever the matter is brought to the notice of the
Court and the Court is satisfied that in the facts and circumstances of the case, a case is made out
for exercising the revisional powers suo motu, it can always do so in the interest of justice.”

There are certain statutory limitations that have been imposed on the High Court for exercising its
revisional powers as per Section 401 of CrPC, however the only statutory requirement to exercise
this power is that the records of the proceedings are presented before it, after which it is solely the
discretion of the Court:

An accused is to be given due opportunity to hear him and on order cannot be passed unless
this is followed.

In instances where a person has forwarded a revisional application assuming that an appeal did
not lie in such a case, the High Court has to treat such application as an appeal in the interests
of justice.

An application of revision cannot be proceeded with if it has been filed by a party where the
party could have appealed but did not go for it.

The High Court, as well as the Sessions Court, may call for record of any proceeding of any
inferior criminal Court situated within its jurisdiction for the purpose of satisfying itself as to the
correctness, legality of propriety of any finding, sentence, etc. Thus, the Sessions Judge could
examine the question in relation to the inadequacy of sentence in view of the powers conferred
on him by Section 397(1) of CrPC.

The difference between the powers of the High Court and the Sessions Court being that the
Sessions Judge can only exercise revisional powers which he has called for by himself, whereas the
High Court has the power to take up a revisional matter by itself or when it is brought to its
knowledge. The powers of a Sessions Court are the same as that of the High Court while dealing
with revisional cases. The Madras High Court in the case S. Balasubramaninan vs The State Of
Tamil Nadu held that “a Sessions Judge can entertain an application in revision against sentence
and enhance the sentence in revision in certain cases.” It has also been previously held by the
Hon’ble Supreme Court in the case Alamgir vs State of Bihar that “in respect of enhancement of
sentence in revision the enhancement can be made only if the Court is satisfied the sentence
imposed by the trial Court is unduly lenient, or that in passing the order of sentence, the trial court
has manifestly failed to consider the relevant facts”

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).

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

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.

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 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 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.

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,

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 Magistrate to keep in mind the report submitted by the
police as per Section 228 and Section 240 of CrPC. (INVESTIGATION)

5. In the case of Narotamdas L. Shah v. Pathak Nathalal Sukhram And Anr., the accused was held
liable for defamation to which the witnesses were cross examined and the Magistrate was of the
view that the case should be transferred while the accused demanded a re-hearing of the
witnesses to which the Magistrate said that the accused can only have this right when the case
is in trial and the case here was at the stage of enquiry only. The judge of the Sessions Court
was of the view that setting aside of the demand made by the accused was wrong. The Gujarat
High Court in this case held that trial in warrant cases starts when the accused has been
presented before the Magistrate and thus quashing the order of the Magistrate. (TRIAL)

6. The principle of natural justice should be considered in respect of both the parties. Right to a
speedy trial is recognized in the case Huissainara khatoon vs Home Secretary, State of Bihar,
the court held- “the trial is to be disposed of as expeditiously as possible”. (RIGHT OF AN
ARRESTED PERSON)

7. Amiya kumar v. state of west Bengal 1978 Cri.LJ 288 In the instant case, it was held that
section 438 of the code empowers both the high court and the session’s court to grant the
anticipatory bail. Both the high court and the Sessions court have the competency to grant this
bail. If the Sessions court rejects the petition filed by the applicant for the anticipatory bail then
he can’t file the petition for the same in the high court. (PROCEDURE OF BAIL)

8. In the case of K. Satwant Singh v. State Of Punjab AIR 1960 SC 266, that the sections of
joinder of charges are not compelling in nature. They only permit the joint trial of charges under
certain circumstances, and the courts may consider the same in the interest of the
administration of justice after thoroughly studying the facts and circumstances of each case.
(JOINDER OF CHARGES)

9. In the case of Reg vs. Benito Lopez(1), the issue related to the jurisdiction of English Courts
for the offences committed on the high seas by foreigners who are travelling in England borne
ships was questioned. It was held that the country which tried the accused did not go beyond its
jurisdiction. The decision highlighted the important principle of International Law that a person
is liable to be punished of all such offences, which he has committed irrespective of the place
where it is committed. (JURISDICTION OF CRIMINAL COURTS)
10. In the case of State of Himachal Pradesh V. Krishan Lal Pradhan, 1987, the Supreme Court held
that there was sufficient relevant material on record and the prima facie of the case was
established by one judge. But the succeeding judge came to the decision on the same materials
that no charge could be established and therefore, an order of discharge was passed. But it was
held by the Supreme Court that no succeeding judge can pass an order of discharge.
(WARRANT TRIAL)

11. In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court held that under
Section 366(2) of CrPC the court while passing the conviction shall grant the jail custody of the
convicted person under a warrant i.e. the person shall be kept in custody and not as a
punishment. The ‘safe keeping’ in jail custody is the limited jurisdiction of the jailor. It is a
trusteeship in the hands of the Superintendent, and not an imprisonment in a real sense.
(SUBMISSION OF DEATH SENTENCE)

12. Javer Chand and Ors. V. Pukhraj Surana, 1961 In this case, it was held that the Court does not
proceed further whenever an objection is raised in the court without passing any order on such
an objection. If there is an objection on the stamp duty of a document, then objection will be
decided then and there before proceeding further. (GENERAL PROVISIONS AS TO INQUIRY
AND TRIAL)

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

The 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.
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 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’.

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
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.

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.

Framing of Charges and Joinder of Charges

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
which has been committed first has to be inquired into or tried, when two acts are done in
connection with each other and both are offences, by the court under whose jurisdiction either of
the act has been committed. In all such provisions, the emphasis is always on the place where the
offence has been committed, to find the jurisdiction. But, Section 181 specifies conditions in case
of certain offences. According to section 181(1), the trial can also be commenced where the
accused is found, besides the place where the offence was committed. Section 181(1) talks
about the offences, when not committed in a single place. It deals with the following cases. Thug,
or murder committed while performing the act of thug, dacoity, or dacoity with murder etc- where
the offence is committed or where the accused is found.

Kidnapping or abduction of a person- the place from where the person was kidnapped/ abducted or
where the person was concealed or conveyed or detained. Theft, extortion or robbery – the Court
where the offence has been committed or where the stolen property is possessed, received or
delivered, has the jurisdiction to try such a case. Criminal misappropriation or criminal breach of
trust- where the offence has been committed or where any part of the property which is the
subject matter of the offence has been received or retained, required to be returned or accounted
for, by the accused. But the above section deals with offences when the offender is travelling, as
evident from the nature of the offences as specified under this section.

Section 182 deals with offences committed by letters etc. Under this section, if any offence
includes cheating, if the victim has been deceived by means of letters or telecommunication
messages, it shall be looked into by the Court under whose local jurisdiction such letters or
messages have been sent or received; and under the local jurisdiction of the Court in which the
property has been delivered by the person deceived or has been received by the accused person.

Section 183 deals with offences which have been committed during journey or voyage. When a
person commits an offence, during journey or against a person who is travelling, or the thing in
respect of which, the offence has been committed is in due course of its journey or voyage, the
offence has to be inquired into or tired by a Court through or into whose local jurisdiction that
person or thing has passed, during the journey. The place of trial for offences which are triable
together consists of two circumstances. When any person commits offences, such that he may be
charged with, tried at one trial for, each such offence according to the provisions of section 219,
section 220 or section 221. When the offences or offences have been committed by several
persons, in a manner that the Court may charge and try them together, according to the provisions
of section 223. In either of the circumstances, the Court which is competent to inquire and try
such do the same. Section 185 deals with the power of the State Government, according to which
the government can direct that any cases or class of cases which have been committed for trial in
any district, may be tried in a sessions court. It has to ensure that such direction is not
inconsistent with any of the directions which have been already issued by any other Superior
Court, as per the Constitution, or as mentioned under the Code of Criminal Procedure or under any
other law for the time being in force. Section 186 addresses the situation wherein the cognizance
of a particular offence has been taken by two or more courts and confusion arises as to which of
the Courts shall inquire into or try that offence, in such a case, only the High Courts have the
authority to resolve the confusion. The criteria for resolving such issues are as follows.

If the same High Court supervises the courts involved, then by that High Court

If the same High Court does not supervise the courts involved then, by the High Court which
first commenced the proceedings as an appellate criminal court. Thereafter, all the other
proceedings in respect of that offence shall be discontinued.

Section 187 states the power of a Magistrate to issue summons or warrant for offences which
have been committed beyond his local jurisdiction. In such a situation the Magistrate has the
authority to order such a person to be produced before him and then send him to the Magistrate of
competent jurisdiction.

The conditions related to the offences when committed outside the territory of India have been
dealt with under Section 188. According to this section, when an offence is committed outside
India-

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.

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 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 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

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

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.

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 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 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

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. 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

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.

Judgement and Sentences under the Code

Judgement (353-360)
Form and contents of the judgment under Section 353 In a judgement Ratio decidendi and
Obiter dicta form an integral part. Ratio decidendi is the binding statement in judgement and
Obiter Dicta is the “by the way” remarks delivered by the judge which is not necessary to the case
at hand. These two are very important as they define the legal principles which are useful to the
legal fraternity.

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.

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 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 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.

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;
 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

Mode of taking and Recording Evidence

Section 272 to 283 of CrPC read with rules under Chapter XII of General Rules and Circular Order
Volume I, explains the Mode of taking and recording Evidence in criminal cases. The following are
the modes of recording evidence:

Section 273– It is mandatory to record all the evidence only in the presence of the accused when
his personal attendance has been dispensed, the evidence must be recorded in the presence of a
pleader.

Section 274– Magistrate shall record a memorandum of the substance of evidence in the court
language and must be signed by the Magistrate.

Section 275(1)– In all the warrant cases, the evidence of each witness shall be in writing by
Magistrate or under his direction if the Magistrate is unable to do so due to some physical or other
incapacities, under his direction and superintendence, by the officer of the court who is appointed
by the Magistrate on his behalf. The evidence under this subsection is to be recorded by audio-
video electronic.

Section 275(3)– This section permits the Magistrate to record evidence in question and answer
form.

Section 276– In Session Court, the recording should be done in a narrative form. The presiding
officer at his discretion can take down any part of the evidence in question and answer format
which has to be signed by him

Section 278– When the evidence of a witness is completed, it should be read over to the accused
or his pleader. This shouldn’t be done at the end of the day when all the witnesses have been
examined. The evidence if needed can be corrected by the accused.

Section 280– The presiding judge or magistrate is empowered to record the remarks.

Marking of Exhibits
Some evidence shall be submitted by the prosecution, this evidence has to be marked with the
number in the order in which they are submitted. The documents that are admitted on behalf of
defence shall be marked with capital letter alphabets. If in case neither party does not accept the
evidence then the evidence shall be marked as Ext C-I, C-II etc.

If more than one number of documents are of similar nature, then the small letter or small number
is added in order to distinguish each document in the series. After the evidence is proved and
admitted it shall be marked with a Roman number. Example MO-I, MO-II etc. the bench clerk of
the court shall prepare the list of articles which shall be signed by the Judge.

Cases
Javer Chand and Ors. V. Pukhraj Surana, 1961

In this case, it was held that the Court does not proceed further whenever an objection is raised in
the court without passing any order on such an objection. If there is an objection on the stamp
duty of a document, then objection will be decided then and there before proceeding further.

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)

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:

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.

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.

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

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.

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 that “the object of this provision is to set right a
patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding.”

The High Court has the power to take up a revision petition on its own motion i.e. suo moto or on
the petition by an aggrieved party or any other party. The Allahabad High Court held in the case of
Faruk @ Gaffar vs State Of U.P. that “whenever the matter is brought to the notice of the Court
and the Court is satisfied that in the facts and circumstances of the case, a case is made out for
exercising the revisional powers suo motu, it can always do so in the interest of justice.”

There are certain statutory limitations that have been imposed on the High Court for exercising its
revisional powers as per Section 401 of CrPC, however the only statutory requirement to exercise
this power is that the records of the proceedings are presented before it, after which it is solely the
discretion of the Court:

An accused is to be given due opportunity to hear him and on order cannot be passed unless
this is followed.

In instances where a person has forwarded a revisional application assuming that an appeal did
not lie in such a case, the High Court has to treat such application as an appeal in the interests
of justice.

An application of revision cannot be proceeded with if it has been filed by a party where the
party could have appealed but did not go for it.

The High Court, as well as the Sessions Court, may call for record of any proceeding of any
inferior criminal Court situated within its jurisdiction for the purpose of satisfying itself as to the
correctness, legality of propriety of any finding, sentence, etc. Thus, the Sessions Judge could
examine the question in relation to the inadequacy of sentence in view of the powers conferred
on him by Section 397(1) of CrPC.

The difference between the powers of the High Court and the Sessions Court being that the
Sessions Judge can only exercise revisional powers which he has called for by himself, whereas the
High Court has the power to take up a revisional matter by itself or when it is brought to its
knowledge. The powers of a Sessions Court are the same as that of the High Court while dealing
with revisional cases. The Madras High Court in the case S. Balasubramaninan vs The State Of
Tamil Nadu held that “a Sessions Judge can entertain an application in revision against sentence
and enhance the sentence in revision in certain cases.” It has also been previously held by the
Hon’ble Supreme Court in the case Alamgir vs State of Bihar that “in respect of enhancement of
sentence in revision the enhancement can be made only if the Court is satisfied the sentence
imposed by the trial Court is unduly lenient, or that in passing the order of sentence, the trial court
has manifestly failed to consider the relevant facts”

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).

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

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.

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 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 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.

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,

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 Magistrate to keep in mind the report submitted by the
police as per Section 228 and Section 240 of CrPC. (INVESTIGATION)

5. In the case of Narotamdas L. Shah v. Pathak Nathalal Sukhram And Anr., the accused was held
liable for defamation to which the witnesses were cross examined and the Magistrate was of the
view that the case should be transferred while the accused demanded a re-hearing of the
witnesses to which the Magistrate said that the accused can only have this right when the case
is in trial and the case here was at the stage of enquiry only. The judge of the Sessions Court
was of the view that setting aside of the demand made by the accused was wrong. The Gujarat
High Court in this case held that trial in warrant cases starts when the accused has been
presented before the Magistrate and thus quashing the order of the Magistrate. (TRIAL)

6. The principle of natural justice should be considered in respect of both the parties. Right to a
speedy trial is recognized in the case Huissainara khatoon vs Home Secretary, State of Bihar,
the court held- “the trial is to be disposed of as expeditiously as possible”. (RIGHT OF AN
ARRESTED PERSON)

7. Amiya kumar v. state of west Bengal 1978 Cri.LJ 288 In the instant case, it was held that
section 438 of the code empowers both the high court and the session’s court to grant the
anticipatory bail. Both the high court and the Sessions court have the competency to grant this
bail. If the Sessions court rejects the petition filed by the applicant for the anticipatory bail then
he can’t file the petition for the same in the high court. (PROCEDURE OF BAIL)

8. In the case of K. Satwant Singh v. State Of Punjab AIR 1960 SC 266, that the sections of
joinder of charges are not compelling in nature. They only permit the joint trial of charges under
certain circumstances, and the courts may consider the same in the interest of the
administration of justice after thoroughly studying the facts and circumstances of each case.
(JOINDER OF CHARGES)

9. In the case of Reg vs. Benito Lopez(1), the issue related to the jurisdiction of English Courts
for the offences committed on the high seas by foreigners who are travelling in England borne
ships was questioned. It was held that the country which tried the accused did not go beyond its
jurisdiction. The decision highlighted the important principle of International Law that a person
is liable to be punished of all such offences, which he has committed irrespective of the place
where it is committed. (JURISDICTION OF CRIMINAL COURTS)
10. In the case of State of Himachal Pradesh V. Krishan Lal Pradhan, 1987, the Supreme Court held
that there was sufficient relevant material on record and the prima facie of the case was
established by one judge. But the succeeding judge came to the decision on the same materials
that no charge could be established and therefore, an order of discharge was passed. But it was
held by the Supreme Court that no succeeding judge can pass an order of discharge.
(WARRANT TRIAL)

11. In the case of State of Punjab vs Kala Ram @ Kala Singh (2018), the Court held that under
Section 366(2) of CrPC the court while passing the conviction shall grant the jail custody of the
convicted person under a warrant i.e. the person shall be kept in custody and not as a
punishment. The ‘safe keeping’ in jail custody is the limited jurisdiction of the jailor. It is a
trusteeship in the hands of the Superintendent, and not an imprisonment in a real sense.
(SUBMISSION OF DEATH SENTENCE)

12. Javer Chand and Ors. V. Pukhraj Surana, 1961 In this case, it was held that the Court does not
proceed further whenever an objection is raised in the court without passing any order on such
an objection. If there is an objection on the stamp duty of a document, then objection will be
decided then and there before proceeding further. (GENERAL PROVISIONS AS TO INQUIRY
AND TRIAL)

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