CRPC/BNSS notes

Hierarchy of courts:

HC-any punishment
Sessions and additional sessions judge-any punishment, death permission by HC.
CJM-any punishment not above 7 years
JMFC-not more than 3 years, not above 50,000, community service
JMSC-not more than 1 year, not above 10,000, community service

Section 4
Section 6 of BNSS-Following classes of courts shall be there-
1)Courts of session
2)JMFC(Judicial magistrate first class)
3)JMSC(Second class)
4)Executive magistrate

Section 7-Territorial divisions-

• talks about the territorial divisions and how it can altered by the State government with the
permission of the HC.
• Every State shall be a sessions division or shall consist of sessions divisions.
• Every sessions divisions shall be a district or consist of districts.

Section 8-Court of sessions

• State government to establish a sessions court for every sessions divisions.
• The sessions judge to be chosen by HC.
• HC may appoint Additional Sessions judge.
• HC may appoint sessions judge of one court to be the additional sessions judge of the court.
• If there is no sessions judge, any urgent application can be dealt by additional judge(HC
permission).
• The court to sit at place allocated by HC but if the accused and defence for the general
convenience of parties agree, then they can sit somewhere else.
• Sessions judge to allocate cases to additional judges.
• Sessions judge can also provide for a additional judge, or a CJM to handle a urgent application.
Under section 9 and 10 of CRPC.
Also, BNSS does not have mention for metropolitan magistrates like CRPC under section 8.
It also does not mention assistant sessions judge like BNSS.

Section 9-Courts of JM
• The state government in consultation with HC, shall built one or more courts of JMFC and JMSC.
Proviso-The State gov. with HC may allocate special courts for certain matters with JMFC and
JMSC, and then no other court except for these will have the jurisdiction to deal with those matters.
• The presiding officers to be appointed by HC.
• If necessary or expedient, the HC may declare JMFC or JMSC to be a civil judge.
Under section 11 of CRPC.

Section 21-Courts by which offences are triable-

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• Any offences under Bhartiya Nyaya Sanhita can be tried by HC, sessions court, or any court
under first schedule.
Proviso-sexual offences by women judge only.
• Any offences mentioned under any other law, shall be tried by court mentioned under it and if not
mentioned, then by HC or by court under first schedule.
Under section 26 of CRPC.

Section 22-Sentences which may be passed by HC & Sessions-

• HC judge can pass any sentence authorised by law.
• A sessions or additional sessions judge may pass any sentence but for death, permission by HC.
Under section 28 of CRPC.
CRPC under 28, mentions Assistant Judge, who can give punishments below 10 years.

Section 23-Punishments given by JMFC,JMSC,CJM.

CPRC under 29, JMFC could not give fines above 10,000 and JMSC could not give fines
above 5000.

Arrest how made-

DK basu v State of WB
Arnesh Kumar v. State of Bihar
Nalabathi Bahera v. State of Orissa

It can be made by-

1)Police
2)Private person
3)Magistrate

Section 43-Arrest How made-

• While making a arrest, a person or police shall touch or confine the accused unless there is
submission to custody by word.
Proviso-It shall be assumed that the women has given her oral consent for submission to custody
unless otherwise. Only a female officer shall arrest.
• If the person forcibly resists, police officer or person may use all means necessary.
• Police shall only handcuff for habitual offender, or someone who runs from custody, or someone
in for a heinous offence against the state or rape.
• This section does not give a right to cause the death of a person who is not accused of an offence
punishable with death or with imprisonment for life.
• Women shall not be arrested before sunset or sunrise. Otherwise permission from magistrate is
required along with a written report.

Under CRPC-Section 46

1)Arest by police:

Section 35-When police may arrest without warrant

(1)A police officer may arrest anyone without a warrant when-
A)in presence of a police officer, a cognizable offence is committed.

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B)Against whom an reasonable complaint has been made or credible information has been
received, or a reasonable suspicion exists, that he has committed a cognizable offence punishable
with less than 7 years or 7 years and fine, if following conditions are satisfied-
1. The police has reason to believe that such person has committed the offence.
2. Arrest is necessary(Arnesh Kumar checklist)-
• To prevent further offence.
• Proper investigation.
• Prevent tampering of evidence
• To prevent inducement from the offender to persons who know the facts of the case, as for
him to not disclose facts.
• As unless the person is arrested, he cannot be brought to the court.
The police shall write reasons for the same.
If not making arrest under this sub-section, still reasons are to be given.

C)When on credible information, the police has reason to believe the person has committed an
offence with imprisonment more than 7 years or with death sentence.
D)Someone who been proclaimed as an offender by state government or this act.
E)In whose possession a stolen property is found, and it may be reasonably suspected of having
committed a offence with reference to such thing.
F)Who obstructs a police officer in duty, or runs from custody.
G)Deserter from armed forces.
H)Someone who has been reasonably suspected to have committed an offence outside India, for
which he is also punishable in India.
I)Released convict for breach of rule.
J)For arrest, requisition has been received.
Proviso-Requisition to specify person and offence.

(2)No person in an non-cognizable offence shall be arrested except for order of magistrate.

(3)In all cases, where arrest no made under sub-section 1, the police shall send a notice directing
appearance of the person.

(4)When a notice is issued, person to comply.

(5)If person complies with notice, he need not be arrested unless police feels otherwise.

(6)Where such person fails to comply with the notice, he may be arrested with order of competent
court.

(7)No arrest to be made unless by prior permission of officer rank not below DSP, in case of
imprisonment less than 3 years and such person is infirm or is above sixty years of age.

Under CRPC, this is section 41. Under CRPC, sub-sections 3,4,5,6,7 are not there.

Arnesh Kumar v. State of Bihar(2014)-

Arnesh Kumar’s wife had filed false dowry allegations against him.(498A IPC)
He went for a anticipatory bail but it was denied by HC and sessions court.

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In an SLP to supreme court, directed the police to adhere to Section 41 of the Code of Criminal
Procedure, 1973, which provides a checklist to determine the necessity of an arrest. Additionally,
the court stated that a magistrate must assess whether a detained accused person should be kept in
further custody. This decision aimed to strike a balance between preventing misuse of the law and
protecting the rights of those accused.
The court issued directions to prevent unnecessary arrests by police officers and unwarranted
detention authorised by magistrates called as Arnesh Kumar Guildines and asked them to fulfil the
checklist under CRPC 41(1)(b)(ii).
This is now section 35(1)(b)(ii) under BNSS.

Section 36-Procedure of arrest and duties of police officer-

• Police should have accurate, visible and clear identification of name.
• A memo of arrest to be prepared, to be attested by a family member or a respectable member of
the locality. Secondly, to be signed by the person arrested.
• If the memo is not attested by a family member, the arrested person has a right to inform a
relative, friend or any person he wants too.
CRPC-41B

Nilabati Behera v. State of Orissa(1993)-One day, the petitioner’s son was arrested and next day,
he was found dead on the railway track, which was close to the police station. An unnatural death
case was registered, and in the post-mortem report several injuries by hard and blunt substances
were found.
She was aggrieved and filed a WP in the SC. She argued that the cause of death was custodial
violence. The state argued that death was because he escaped from lawful custody and was hit by
the train.The court held that Suman Behera’s death in police custody constituted a violation of his
right to life and personal liberty as guaranteed by Article 21 of the Indian Constitution. This
violation was established based on the evidence presented, including the post-mortem report
showing injuries on Suman Behera’s body and compensation was given to the mother.

DK Basu v. State of WB(1997)-DK Basu wrote a letter to the Supreme Court of India, bringing to
its attention news reports about deaths in police custody and lockups. In the letter, he highlighted
that such cases of custodial violence in WB and how they went unpunished, despite efforts made to
address the issue. The court took up this issue and asked all high courts to report on this. Looking at
the reports of all High courts, and the precedent of Nilabati Behera, reiterated that prisoners and
detainees should not be deprived of their Fundamental Rights under article 21. These guidelines
were incorporated in CRPC in 2008.
Guidlines-
1)Police while arresting should have proper name plates and uniform.(section 36,41B)
2)Arrest Memo to be maintained.(36,41B)
3)Case diary(Medical examination, arrest memo, FIR, Magistrate, Case number)
4)Nominated person-S 48/50A
5)Nominee Out of district-inform telephonically within 6-12 hours
6)Medical examination-when arrested and after 48 hours.
7)Police control room-Section 37/41C
8)Right to legal aid-Section 38/41D
9)Entire report to be submitted to magistrate

Section 37-Designated police officer-

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The state government shall
• establish a police control room in every district and at state level.
• designate a police officer in every district and in every police station, not below the rank of
Assistant Sub-Inspector of Police, to maintain names and addresses of the persons arrested,nature
of the offence with which charged, which shall be prominently displayed in any manner including
in digital mode in every police station and at the district headquarters.

CRPC-41C, Digital mode was not present under CRPC

Section 38-Right of an arrested person to an advocate-

Arrested person entitled to advocate of his own choice, except for the duration of the investigation.
CRPC-41D

Section 39-Arrest on refusal to give name and residence-

• When a person, in presence of a police officer commits a non-cognizable offence, refuses to give
his name and address or gives a false one, he may be arrested to ascertain the details.
• When it has been ascertained, he shall be released through a bail bond.
• If the true name and details are not ascertained within 24 hours of the arrest, or bail bond is not
furnished, he shall be presented to the nearest magistrate having jurisdiction.
CRPC-42

2)Arrest by Private person:

Section 40-Arrest by private person-

• A private person may arrest a person, who in his presence committed a cognizable, non-bailable
offence. Although, he needs to be given to a police officer within 6 hours of the arrest.
• If the police officer believes the person comes under 35(1)-Arnesh Kumar checklist, they shall
arrest him.
• If the person has committed a non-cognizable offence, and gives wrong details about him and
address, he shall be dealt with section 39. Otherwise, if there is is no sufficient reason to believe
that he has committed any offence, he shall be at once released.
CRPC-43

3)Arrest by Magistrate:

Section 41-Arrest by Magistrate-

• When an offence is committed in presence of the magistrate, whether executive or judicial, in
local jurisdiction, he may arrest or order arrest of the offender.
• Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his
presence, within his local jurisdiction, of any person for whose arrest he is competent at the time
and in the circumstances to issue a warrant.
CRPC-44

Section 46-No unnecessary restraint-

The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.
CRPC-49

Section 47-Person arrested to be informed of grounds of arrest and of right to bail-

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• Police to communicate the particulars for which the person is arrested.
• Police to inform person that he is entitled to bail, unless non-bailable offence.
CRPC-50

Section 48-Obligation of person making arrest to inform about arrest, etc., to relative or
friend-
• Police officer to inform a nominated person about arrest.
• Officer to make person aware of right under sub section 1.
• Entry of the fact as to who has been informed to be kept in a book.
• Magistrate to ensure sub-section 2 n 3 has been complied.
CRPC-50A

Section 51-Examination of accused by medical practitioner at request of police officer-

• When a person is arrested and there are reasonable grounds for believing that an examination of
this person will afford evidence as to the commission of an offence, it shall be lawful for a
registered medical practitioner, acting at the request of any police officer to conduct an
examination to ascertain the facts.
• Female to be examined by a female practitioner or under supervision of a female practitioner.
CRPC-53

Section 52-Examination of a person accused of rape-

1)When a person is arrested for committing rape or for attempt and there are reasonable ground for
believing that an examination of this person will afford evidence as to the commision of the offence,
it shall be lawful for a registered medical practitioner employed in a government hospital or by
a local authority and in the absence of such a practitioner within the radius of sixteen kilometres
from the place where the offence has been committed, by any other registered medical
practitioner, acting at the request of any police officer.
2)Practitioner to without any delay prepare a report with the following-
I)name and address of accused.
ii)age
iii)marks of injury
iv)the description of material taken from the person of the accused for DNA profiling
v)other material particulars in reasonable detail
3)The report to have proper conclusion and reasons for it.
4)Time of examination(start and end)
5)Medical practitioner to forward it to investigating officer, who shall forward it to the magistrate.
CRPC-Section 53A

Section 53-Examination of arrested person by medical officer-

• Person to be medically examined as soon as arrested by central or state medical officer.
Proviso-medical examiner may take another examination if he opines so.
Female to be done by female.
• Medical officer shall prepare a record , mentioning therein any injuries or marks of violence upon
the person arrested, and the approximate time when such injuries or marks may have been
inflicted.
• When a report has been made post examination, it should be shared with the arrested person or
the person nominated by him.
CRPC-Section 54
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Section 54-Identification of person arrested-
• When a person is arrested, and for his proper investigation, identification by other persons is
necessary. The court having jurisdiction on request of the police officer may direct the person to
subject himself for identification.
Proviso-If person is mentally or physically disabled, magistrate shall himself do the identification
under audio-visual means.
CRPC-54A

Section 55-Procedure when police officer deputes subordinate to arrest without warrant-
• When any officer in charge of a police station or any police officer making an investigation
requires any officer subordinate to him to arrest without a warrant (otherwise than in his
presence) any person who may lawfully be arrested without a warrant, he shall deliver to the
officer required to make the arrest an order in writing, specifying the person to be arrested and the
offence or other cause for which the arrest is to be made and the officer so required shall, before
making the arrest, notify to the person to be arrested the substance of the order and, if so required
by such person, shall show him the order.
• It shall not effect the power of arrest under section 35.
CRPC-55

Section 56-Health and safety of the accused-

Duty of the person having custody to take care of the accused.
CRPC-55A

Section 57-Person arrested to be taken before Magistrate or officer in charge of police station-
A police officer making an arrest without warrant shall, without unnecessary delay , send the person
arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a
police station.
CRPC-56

Section 58-Person arrested not to be detained more than twenty-four hours-

No police officer shall detain in custody a person arrested without warrant for a longer period than,
under all the circumstances of the case is reasonable. It shall not exceed 24 hours except for a
special order of magistrate under 187, excluding time of journey from place of arrest to magistrate
court.
CRPC-57

Section 187-Procedure when investigation cannot be completed in twenty-four hours-

1)Whenever a person is arrested, and it appears that the investigation cannot be completed within 24
hours, and there are grounds for believing that the accusation or information is well-founded. In
such a case, a police officer not below the rank of sub-inspector shall transmit the copy of the entry
of the diary relating to the case, and shall also send the accused.
2)The magistrate to whom the accused has been forwarded irrespective of the jurisdiction, after
taking into consideration whether such person has not been released on bail or his bail has been
cancelled, authorise, from time to time, the detention of the accused in such custody as such
Magistrate thinks fit, for a term not exceeding fifteen days in the whole, or in parts, at any time
during the initial forty days or sixty days out of detention period of sixty days or ninety days.
• if he has no jurisdiction to try the case or commit it for trial, and considers further detention
unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
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3) The Magistrate may authorise the detention of the accused person, beyond the period of fifteen
days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the
detention of the accused person in custody under this sub-section for a total period exceeding-
i)90days-imprisonment of life or death
ii)60 days-any other offence.
Explanation-At the expiry of this period, the accused will remain in custody till bail is furnished.

4) No Magistrate shall authorise detention of the accused in custody of the police under this section
unless the accused is produced before him in person for the first time and subsequently every time
till the accused remains in the custody. This can be done in person or through audio-visual means.
Explanation-If any question arises whether an accused person was produced before the Magistrate
as required under sub-section (4), the production of the accused person may be proved by his
signature on the order authorising detention or by the order 20 certified by the Magistrate as to
production of the accused person through the audio-video electronic means.
Proviso-woman under eighteen years of age, the detention shall be authorised to be in the custody
of a remand home or recognised social institution
Proviso-detained only in police station or judicial custody or place declared as prison by gov.

5)JMFC cannot give detention unless empowered by HC.

6)When magistrate not available, police can go to Executive magistrate and give him the case diary
and accused. He can only authorise 7 days of detention. After which for further detention, a
competent magistrate needs to pass a order.
Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to
the nearest Judicial Magistrate, the case diary given by police officer.
7)Magistrate authorising detention to record his reasons for the sam.e
8)Any magistrate other than CJM, to send the copy of his order and reasons for making it to the
CJM.
9) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded
within a period of six months from the date on which the accused was arrested, the Magistrate shall
make an order stopping further investigation into the offence unless the officer making the
investigation satisfies the Magistrate that for special reasons and in the interests of justice the
continuation of the investigation beyond the period of six months is necessary.
10)Sessions judge may overturn order under sub-section 9 if satisfied that further investigation is
required.

CRPC-167

*Summon trial above (sub-section 9) is one of three trials.

1)Summon trial for non-cognizable offences having punishment below 2 years.
2)Warrant trial for non-cognizable/cognizable offences having punishment below 7 years.
3)Sessions trial for cognizable offences having punishment above 7 years.

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