UNIT-V

INTRODUCTION:-Offences can be classified into two classes on the basis of

bail:

Bailable offences: – Bailable offences are of general nature and in these

offences it is right of accused to be released on bail. Sec.436 of Cr.P.C.
pertains to Bailable offences.

Non-Bailable offences: – These offences are of severe nature and bail

cannot be claimed as right in them. In such cases bail depends upon the
discretion of the court. Sec. 437 relates to Non-bailable offences, under
section 437 and 439 relates to non-bailment offence.

Grant of Bail in Non-bailable offences: – Sec. 437 provides that when any
person accused of or suspected of commission of any non bailable offence is
arrested or detained without warrant by an Officer I/C of a Police station or
appears or is brought before a court other than the High Court or court of
Session he may be released on bail.

Thus section 437 empowered a Magistrate to take bail in non bailable

offences. The provision of this makes it clear that bail in non bailable offences
depends upon the discretion of the court.

When bail shall be Granted:- Sec. 437(1) of the code lays down the following
situations in which bail shall not be granted by the Magistrate:-

i) When the Magistrate believes that there are reasonable grounds

of guilty of offence punishable.

ii) If person has been previously convicted of an offence punishable

on two or more times.

CONDIIONS FOR BAIL

1 Sec. 437(3) of the code provides that where a person accused or suspected
of the commission of an offence punishable which may extend to seven year
or more or of an offence defined in IPC and any such offence the accused is
released on bail the court however may impose any condition which the court
considers necessary:-

1. That such person shall attend in accordance with conditions mentioned in

the bond executed by him.

2. Such person shall not commit an offence of the similar to an offence of

which he is accused or is suspected.

ARREST OF A PERSON
Introduction: – Generally, a person is arrested by the order of the magistrate
or by a warrant. A police officer cannot arrest a person arbitrarily or without
the order of magistrate or without warrant. But this rule has few exceptions to
it which means that under certain circumstances a person can be arrested
without the order of the magistrate or without warrant.

Arrest without warrant:- Sec. 41 of the Criminal Procedure Code 1973

provides that a police officer can arrest a person without the orders or warrant
of the magistrate in following situations:

(8) When any person has been concerned in any cognizable offence or
against whom a reasonable complaint has been made or credible information
has been received or a reasonable suspicion exists. Of his having been so
concerned.

(9) When any person has in his possession without lawful excuse any
implement of house-breaking.

(10) When any person in whose possession anything is found which may
reasonably be suspected to be stolen property and who may reasonably be
suspected of having committed an offence with reference to such things.

(11) When any person obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape from lawful custody.

(12) When any person is reasonably suspected of being a deserter from

any of the armed forces of the union.

(13) When any person being a released convict, commits a breach of any
rule made under sub-section (5) of section 356;

(14) When for any persons arrest any requisition, whether written or oral,
has been received from another police officer, provided that the requisition
specifics the person to be arrested.

Thus, in this way a police officer under sec 41(1) can arrest any person
without the order or warrant of a magistrate.

CHARGE
INTRODUCTION: – The object of the rule embodied in the sec. 218 of Cr. P.
C., is to ensure a fair trial and to see that the accused is not bewildered or
perplex to confuse by having been asked to defend several unconnected
charges or distinct offences lumped together in one charge or in separate
charges. We will read the rules relating to joinder of charges described in
different part of this section. There is no exception to the rule that there should
be separate charge for each offence. The detail study of this section is as
under:-

DEFINITION: – For every distinct offence of which any person is accused

there shall be a separate charge and every charge shall be tried separately.
Where the accused person by an application in writing, so desires and the
Magistrate is of opinion that such person is not likely to be prejudiced thereby,
Magistrate may try together all or any number of the charges famed against
such person.

1. Effect of Contravention of Sec.218:- The effect of the contravention of the

provisions of this sec. has been considered by the Supreme Court in following
number of cases:- Sushil Kumar v/s Joy Shankar-1971: It was held that
charges under 408 and 477A of IPC could be tried together. In this case
several persons accused on several items of embezzlement were tried jointly.
There was no failure of justice in consequence of the joinder of charges had
occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that
the provisions of sec. 218 to 224 would indicate that separate charge and
separate trial for such distinct offence is the normal rule and joint trial is an
exception when the accused have committed separate offence.”

2. Failure to Explain injuries on the accused:- When the prosecution fails to

explain satisfactorily the injuries sustained by the accused there are number
of judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-
1975: It was held that the accused had inflicted the injuries on the members of
the prosecution party in exercise of the right of self-defence.

3. Three offences of the same kind within year may be charged together:-
under section 219 of Cr. P. C. when a person is accused of more offences
than one of the same kind committed within the space of twelve months from
the first to the last of such offences, he may be charged with and tried at one
trial for any number of them not exceeding three. Provisions of section are
only enabling provisions, it applies where offences are of the same kind but it
does not apply where offences are not of the same kind such as criminal
breach of trust and falsification of accounts. Rahmat v/s State of U. P.-1980.

Trial for than one offence:- If in one series of Acts so connected together as to
form the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one trial for every such

APPEALS & ITS LIMITATION PERIOD

INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied
from judgment finding and orders of the trial court. Under section 372 of the
Cr.P.C., it is provided that relation to appeal it is necessary to know that no
appeal shall lie from any judgment or order of a criminal court except as
provided by this code or any other law for time being in force, case Garikapati
v/s Subhash coudhari-1957. However the provisions regarding making an
appeal are the following:-

1. Appeal from orders requiring security or refusal to accept or rejecting surety

for keeping peace or good behavior: – Any person who has been ordered to
give security for keeping the peace or for good behavior or who is aggrieved
by any order refusing to accept or rejecting a surety on the basis of sec.373.

2. Appeals from Convictions: – According to section 374 of code that any

person convicted on a trial by a H/C in its extraordinary original criminal
jurisdiction may appeal to Supreme Court similar any person convicted by
session judge or on a trial held by any other court which sentence or
imprisonment is more than 7 years may appeal to High court. Case Panchi v/s
State of U.P.-1998, In C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: – Under sec.377, the state Government

may in any case of conviction on a trial held by any court other than a H/C
direct the Public Prosecutor to present an appeal against the sentence on the
ground of its inadequacy to Court of Session if the sentence is passed by the
Magistrate or to the H/C if the sentence is passed by any other Court. When
an appeal is filed against the sentence on the ground of its inadequacy court
shall not enhance the sentence except after giving to the accused a
reasonable opportunity of sowing cause against such enhancement. Case of
Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378

the H/C has full power to review at large the evidence on which the acquittal is
based and to reach the conclusion that the order of acquittal should be
reversed as held in case of Mohandas v/s State of MP-1973, but exercising
his power the H/C should give proper weight and consideration to the view of
the trial judge as to the credibility of witnesses, presumption of innocence in
favour of the accused. And a right of the accused to the benefit of any doubt.
It was also held in State of U.P. v/s Gambir Singh-2005 case of appeal
against acquittal if on same evidence two views are possible, the one in
favour of accused must be preferred.

During the hearing of appeal from the order of acquittal it should be taken into
consideration that there is no miscarriage of justice, case Allahrakha K.
Mansuri v/s State of Gujrat-2002. The order of acquittal cannot be dismissed
merely on the ground that a second approach could have been applied in the
case and it means that the accused could have been convicted on
considering another view a case of Chandra Singh v/s State of Gujrat-2002.

COMPLAINT CASE
DEFINITION: – Sec. 200 says, that the preliminary procedure which a
Magistrate shall follow on receiving a complaint. It is obligatory to examine
the complainant and the witnesses and a summary dismissal without them is
not legal. The substance of such examination shall be reduced to writing and
shall be signed by the complainant and the witnesses and also by the
Magistrate. If a public servant acting or purporting to act in the discharge of
his official duties or a court has made the complaint or the magistrate makes
over the case for inquiry or trial to another Magistrate under sec.192.

1. Procedure by Magistrate not competent to take cognizance of the case: If

a complaint made to a Magistrate who is not competent to take cognizance of
the offence he shall return it for presentation to the proper court with an
endorsement to that effect or where the complaint is not in writing then he will
direct the complainant to the proper court as provided in sec.201 of
Cr.P.C.Case of Rajender Singh v/s State of Bihar, 1989.
2. To Postponement of issue of Process:- Sec.202 of the code provided that
where it appears to the magistrate that the offence complained is triable
exclusively by the court of Sessions or where the complaint has not been
made by a court unless the complainant and the witnesses present have been
examined on oath under sec.200. If an investigation is made by a person not
being a Police officer he shall have for that investigation all the powers
conferred by this code on an officer in charge of a police station except the
power o arrest without warrant. Sec. has provided to ascertain the following: i)
to ascertain the facts constituting the offence.

ii) To prevent abuse of process resulting in wastage of time of the court and
harassment to the accused.

iii) To help the magistrate to judge if there is sufficient ground for calling the
investigation and for proceeding with the case. Case: Balraj Khanna v/s
Motiram-1971.

3. Dismissal of Complaint: – A Magistrate may dismiss a complaint if after

considering the statement on oath of the complainant and of the witnesses
and the result of inquiry or investigation under sec.202. But where there is
sufficient ground for preceding the Magistrate cannot dismiss the complaint
under sec.203 of the code. If he finds that no offence has been committed, if
he distrusts the statement or if he distrusts the complainant may direct for
further inquiry. In such cases he may refuse to issue process. Case Sulab
Chandra v/s Abdula-1926. These are the provisions under sec.203 of Cr.P.C.

ANTICIPATORY BAIL
INTRODUCTION: – Anticipatory bail has an important place in the series of
Bail. Its main object is to protect the innocent persons from arrest under sec.
438 of the criminal procedure code-1973 lays down the provisions regarding
grant of anticipatory bail.

What is Anticipatory Bail: – In-spite of the fact that the Cr.P.C., has not
defined Anticipatory Bail but it means that when a person has a reason to
believe that he may be arrested on accusation of having committed a non-
bailable offence, he may apply to High Court or to the court of Session that in
the event of such arrest he shall be released on bail at that time it is
anticipatory bail. It is also called Apprehension Bail on the basis of provisions
laid down in sec. 438 of cr.P.C.

Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect a

person from arrest. A person against whom a warrant of arrest has been
issued shall first be arrested kept in custody for few days and then released
on bail, it means where there is no purpose for the arrest he shall not be
arrested.

When anticipatory Bail would be Accepted:- Section 438(1) says that, “when
any person has reason to believe that he may be arrested on an accusation of
having committed a non-bailable offence, he may apply to the High Court or
court of Session for a direction under this sec.438(1) and court if thinks it fit,
can direct that in event of such arrest he shall be released on bail.” Case of
Gurbaksh Singh v/s State of Punjab-1980, he was not granted anticipatory
bail merely on fear of arrest. In a similar case of Ashok kumar v/s State of
Rajasthan-1980, that anticipatory bail should not accepted until there is a
definite fear of arrest and such fact has come before the court. It is pertinent
to mention here that reason to believe does not mean mere fear, i.e. mere
‘fear’ is not sufficient cause. Grounds on which belief is based must be
capable of being examined.

1. Who shall accept the Anticipatory Bail

a. Sec. 438 (1) that the following authorities may accept the anticipatory bail
application: High Court, Court of Session.

That any accused of an offence and in custody be released on bail on

acceptance of bail application in the above said courts u/s 439 of Cr.P.C.

Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions

for grant of anticipatory bail. Those conditions have been mentioned in section
438(2). When the High Court or Court of Session make a direction with some
conditions in the light of the facts of the particular case as it may think fit for
bail:-

b. That the person shall not leave India without previous permission of the
court. b)That person directly or indirectly make an inducement threat or
promise to any person acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the court or to any police Officer. c. That the
person shall make himself available for interrogation by a police officer as and
when required.

POWERS OF CRIMINAL COURTS

INTRODUCTION: – Chapter III of the criminal procedure code deals with the
Powers of Courts to take cognizance of the offences. For this purpose the
offences are divided into two groups, i) Offences under IPC, and ii) offences
under any other law. The courts by which these two offences are triable are
specified below:-

Courts by which these two offences are triable: – As per provisions laid down
in section 26 of the cod, the courts by which offences are triable:-

3. a) Any offence under IPC-45 may be tried by High Court. B)

Session Court. c) Any other court by which such offence is shown in the first
schedule to be triable.

4. Any offence under any other law, when any Court is mentioned in this
behalf in such law, is tried by: i) High Court. ii) Any other court by which such
offence is shown in the first schedule.

Section 27: Jurisdiction in the case of Juveniles: Any offence not punishable
with death or imprisonment for life who at the date when he appears or is
brought before court under the age of 16 years may be tried by the court of
CJM or any other court which specially empowered.

Sentences which High Courts and Session Judges may pass: – As per
provision laid down in Sect. 28 of the code that:- (i) High Court may pass any
sentence authorized by law. (ii) Session Judge or ADJ may pass any
sentence authorized by law but any sentence of death passed by such judges
shall be subject to confirmation by the High Court.

Sentences which Magistrates may pass:- Sec.29 of Code, The court of CJM
may pass any sentence authorized by law except sentence of death or of
imprisonment for life or imprisonment for a term exceeding 7 years.

The court of Magistrate of First Class may pass a sentence of imprisonment

for a term not exceeding three years or of fine not exceeding Rs.10, 000.

The court of 2nd Class Magistrate may pass an imprisonment for a term not
exceeding One year or of fine not exceeding Rs.5000/- or of both.

Sentence of Imprisonment in default of fine:-The court of Magistrate may

award such term of imprisonment in default of payment of fine as authorized
by law under sec.30 of the code, not exceeding one fourth of the term of
imprisonment and also not excess of the powers.

SUMMARY TRIALS
On the basis of provisions under section 260 of the code, power to try
summarily: – notwithstanding anything contained in this code, Any CJM, Any
metropolitan Magistrate or any Magistrate of the first class specially
empowered in this behalf by the High Court, may if thinks fit try a summary
way in all or any of the following offences. Summary trial can also be done by
the magistrate of second class u/s 261 of the code; the High Court may confer
on any magistrate invested with the powers of a Magistrate of the second
class. If any from the above Magistrate’s thinks fit, may try in a summary way
for all or any of the following offences:-

1. Offences not punishable with death imprisonment for life imprisonment for
a term exceeding two years.

2. Theft under sec. 379, 380 and 381 of IPC where the value of the property
stolen does not exceed two thousand rupees.

3. Receiving of retaining of stolen property under sec.411, IPC, where the

value of the property does not exceed two thousand rupees.

4. Assisting in the concealment or disposal of stolen property under sec. 414

of IPC, where the value of such property does not exceed two thousand
rupees. 5. Offences under section 454 and 455 of IPC.

6. Insult with intent to provoke a breach of the peace under sec. 504 and with
imprisonment for term which may extend to two years or with fine or with both,
under sect. 506 of IPC. 7. Abetment of any of the foregoing offences. 8. An
attempt to commit any of the foregoing offences when such attempt is an
offence.

The mode of trial is sought to be altered under this sub-section the trial must
from its inception to be conducted in the regular manner, case of State v/s
D.N.Patel-1971. The Magistrate under this section as a discretion o try the
offences specified in this section in a summarily way.

Procedure of summary trials: – Under sec. 262 of the code is related to the
procedure for summary trial, shall be the same as in summons case except in
so far as it is modified by the provisions. In the case of summary trial the limit
of term of sentence of imprisonment is three months. However if the court is
considers it necessary that a longer sentence is necessary in the interest of
justice in any case the trial should be held as in a warrant case or as a
summon case according to the nature of the offence.

PLEA BARGAINING
Under section 265A of the code, described that the application of
the provisions of this section in respect of accused against whom the report
has been forwarded by the officer in charge of Police station under sec.173,
the offence appears to have been committed by him and the Magistrate has
taken cognizance of an offence on complaint other than an offence for which
the punishment of death or life imprisonment or imprisonment for a term
exceeding seven years and examining complainant and witnesses issued the
process as per law.

Application for plea bargaining: Sec.265B of the code lays that a person
accused of an offence may file application for plea bargaining in the court in
which the offence is pending for trial. The application accompanied by an
affidavit sworn by the accused stating therein that he has voluntarily preferred
after understanding the nature and extent of punishment provided under the
law for the offence the plea bargaining in his case and that he has not
previously been convicted by a court in a case which he had been charged
with the same offence.

FINALITY OF THE JUDGEMENT:- The judgment delivered by the court under

section 265G shall be final and no appeal except the special leave petition
under article 136 and writ petition under article 226 and 227 of the Indian
constitution shall lie in any court against such judgment.

POWER OF THE COURT IN PLE BARGAINING:- A court shall have for the
purposes of discharging its functions under the provisions in section 265H, all
he powers vested in respect of bail, trial of offences and other matters relating
to the disposal of a case in such court on the basis of above provisions.

QUESTION`1:- Discuss the Rights of an arrested person?

ANSWER:- Cr P C gives powers to the police for arresting a person with such
power Cr P.C also provides rights to an arrested person. Rights of an arrested
are as follows –
1. Right to know the grounds of arrest – Section 50(1) – According to this
provision, every police officer or other person arresting any person without
warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or any other grounds for such arrest.

In case of Udaybhan Shuki vs State of UP 1999 CrLJ, All HC held that right to
be notified of grounds of arrest is a precious right of the arrested person. This
allows him to move the proper court for bail, make a writ petition for habeas
corpus, or make appropriate arrangements for his defence.

2. Right to be informed of the provision for bail – Section 50(2) – Section

50(2), provides that where a police officer arrests any person other than a
person accused of a non-bailable offence without warrant, he shall inform the
person arrested that he is entitled to be released on bail and that he may
arrange for sureties on his behalf.

3. Right to be taken to magistrate without delay – Section 57 – of CrPC. It

says that, 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, and such period shall not, in the absence of a special order of a
Magistrate under Section 167, exceed twenty four hours exclusive of the time
necessary for the journey from the place of arrest to the Magistrate’s court.

In case of, Khatri (II) vs State of Bihar 1981 SCC, SC has strongly urged upon
the State and its police to ensure that this constitutional and legal requirement
of bringing an arrested person before a judicial magistrate within 24 hours
should be met. This allows magistrates to keep a check on the police
investigation. It is essential that the magistrates should try to enforce this
requirement and when they find it disobeyed, they should come heavily upon
the police.

Further, in case of, Sharifbai vs Abdul Razak, AIR 1961, SC held that if a
police officer fails to produce an arrested person before a magistrate within 24
hours, he shall be held guilty of wrongful detention.

4. Right to consult Legal Practitioner – Section 303- Under section 303 it

is mentioned that any person accused of offence before a Criminal Court or
against whom proceedings are instituted under this Code, may have right to
be defended by a pleader of his choice.

5. Right to free legal aid – Section 304 – Section 304 provides that where,
in a trial before the Court of Session, the accused is not represented by a
pleader, and where appears to the Court that the accused has not sufficient
means to engage a pleader, the Court shall assign a pleader for his defence
at the expense of the State. In Suk Das vs Union Territory of Arunachal
Pradesh 1986, SCC, SC has held that non-compliance of this requirement or
failure to inform the accused of this right would spoil the trial entailing setting
aside of the conviction and sentence. The right of an accused to consult his
lawyer begins from the moment of his arrest. The consultation with the lawyer
may be within the presence of a police officer, but not within the police
officer’s hearing. SC also held that it is the duty on all courts and magistrates
to inform the indegent person about his right to get free legal aid.

6. Right to be informed about the right to inform of his arrest to his

relative or friend – Section 50 A (1) provides that once the arrested person
is brought to the police station, the police officer must inform a relative or a
friend, or any other person of the arrested person’s choice, about his arrest.
He must also tell the place where the arrested person has been kept. Further,
as per Section 50 A (3) he must note down the name and address of the
person who was informed about the arrest. To make sure that there is no
violation of this right, section 50 A (4) makes it a duty of the magistrate to
verify that the provisions of this section were complied with. This allows the
arrested person and his well wishers to take appropriate legal steps to secure
his release.

7. Right to be examined by a medical practitioner – While Section 53

allows a police officer to get the accused examined by a registered medical
practitioner, Section 54(1) gives the accused a right to get himself examined
by a registered medical practitioner. According to Section 54 (1), when a
person who is arrested, whether on a charge or otherwise, alleges, at the time
when he is produced before a Magistrate or at any time during, the period of
his detention in custody that the examination of his body will afford evidence
which will disprove the commission by him of any offence or which Magistrate
shall, if requested by the arrested person so to do direct the examination of’
the body of such person by a registered medical practitioner unless the
Magistrate considers that the request is made for the purpose of vexation or
delay or for defeating the ends of Justice.

In case of Sheela Barse vs State of Maharashtra 1983 SCC, SC held that

the arrested accused person must be informed by the magistrate about his
right to be medically examined in terms of Section 54(1).

QUESTION 2:- Elaborate the trial of Warrant of cases by a Magistrate?

Answer:- There are two different procedures prescribed for trial of warrant
cases by a Magistrate:

1) Procedure of trial of warrant cases instituted on a police report.

2) Procedure of trial of warrant cases instituted otherwise than on a police

report.

Sections 238 to 243 both inclusive relate exclusively to the procedure of trials
in cases initiated on police report whereas sections 244 to 247, both inclusive,
relate exclusively to the procedure in cases initiated otherwise than on police
report. Section 248 relates to both.

1 .Cases instituted on a police report

Section 238 – Compliance with section 207

When in any warrant-case instituted on a police report, the accused appears

or is brought before a Magistrate at the commencement of the trial; the
Magistrate shall satisfy himself that he has complied with the provisions of
section 207 of the act.

A case instituted upon a police report means a case initiated on a charge-

sheet submitted by the police officer in a cognizable case. Any other case
initiated in any other manner is a case initiated otherwise-than on a police
report.

Before proceeding with the case, the Magistrate has to ascertain as to

whether the copies of documents require to be supplied to the accused
according to Section 207 have been complied with. If they have not been so
complied, the Magistrate should get them supplied and then proceed with the
case.

If a warrant case is tried as a summons case, the trial vitiates.

Section 239 – When accused shall be discharged

If, upon considering the police report and the documents sent with it under
section 173 and making such examination of the accused as the Magistrate
thinks necessary and after giving the prosecution and the accused an
opportunity of being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused, and record his
reasons for so doing.

If on the consideration of the documents and after the examination of the

accused and after hearing the prosecution and the defence, the Magistrate is
of opinion that there is a ground for presuming that the accused has
committed an offence triable under this chapter with such Magistrate is
competent to try and which he can adequately punish, he shall frame in
writing a charge.

The examination of the accused under sections 239 and 240 is meant only to
get explanation from the accused of the incriminating circumstances
appearing in the documents sent up under Section 173. It is discretionary with
the Magistrate to examine the accused. It is not obligatory to examine an
accused.

The Magistrate has to record reasons for discharging the accused. Failure to
record the reasons makes the order illegal. The recording of reasons for
discharge is essential so that the Higher Courts may be able to know as to be
of opinion that the charge should not be framed and the accused should be
discharged.

Section 240 – Framing of charge

If, upon such consideration examination and hearing, the Magistrate is of
opinion that there is ground for presuming that the accused has committed an
offence triable under this Chapter, which such Magistrate is competent to try
and which, in his opinion could be adequately punished by him, he shall frame
in writing a charge against the accused.

Then, the charge shall be read and explained to the accused, and he shall be
asked whether he pleads guilty of the offence charged or claims to be tried.

A Magistrate shall frame a charge if there is a ground for presuming that the
accused has committed an offence, the offence is triable under this chapter,
the Magistrate is competent to try it and the accused can be adequately
punished by him.

A Magistrate can frame a charge in a case where is ground for presuming that
the accused has committed an offence triable under this Chapter, that is to
say, The offence must be punishable to imprisonment for a period exceeding
two years. If the offence which appears to be triable as a summon case, no
charge should be framed, though the accused may be tried without framing
any charge as a summons case, similarly if the case is triable as a Sessions
trial, no charge can be framed by the Magistrate.

A Magistrate can frame a charge under Section 240 only when he is

competent to try the case. A Magistrate may not be competent to try the case
if the offence has been committed beyond the local jurisdiction of his Court.

The charge framed shall be read over and explained to the accused and he
should be asked whether he pleads guilty or not. Charge shall be read over
the accused and not the pleader. It has been held that the charge may be
explained to the counsel of the accused and he may be allowed to plead or
not to plead on behalf of the accused. But this view is not correct. The charge
has to be explained to the accused and the accused has to plead guilty or not.

Section 241 – Conviction on plea of guilty

If the accused pleads guilty, the Magistrate shall record the plea and may, on
his discretion, convict him thereon.

If the accused pleads guilty, the Magistrate should record his plea in his own
words and clearly.

The Magistrate has discretion to convict an accused on his plea of guilty. But
the plea of guilty must be clear. It is admission of all the facts on which the
charge is founded and also the admission of guilt in respect of them. When
the accused pleaded not guilty at the time of charge being read over to him
and the Magistrate proceeded to take evidence but afterwards the accused
accepted the guilt, it was held that he could not be convicted under Section
241.
The plea of the accused must be recorded as much as possible in the very
words of the accused so that the higher courts may determine whether the
plea of the accused really amounted to a confession of the guilt.

Section 242 – Evidence for prosecution

If the accused refuses to plead or does not plead, or claims to be tried or the
Magistrate does not convict the accused under section 241 the Magistrate
shall fix a date for the examination of witnesses.

Provided that the Magistrate shall supply in advance to the accused, the
statement of witnesses recorded during investigation by the police.

The Magistrate may, on the application of the prosecution, issue a summons

to any witnesses directing him to attend or to produce any document or other
thing,

On the date so fixed, the Magistrate shall proceed to take all such evidence
as may be produced in support of the prosecution:

Provided that the Magistrate may permit the cross-examination of any witness
to be deferred until any other witness or witnesses have been examined or
recall any witness for further cross-examination

When the accused does not plead guilty or claims to be tried or even on plea
of guilty the Magistrate does not convict him, he shall fix a date for the
examination of witnesses. It is for the benefit of the accused that this provision
for fixing a date has been provided. If the Magistrate after the statement of
accused not pleading guilty, straight way proceeds with the case, the accused
may be prejudiced and such proceeding certainly makes the trial illegal.

On the date so fixed, the Magistrate is bound to take all the evidence by the
prosecution. The provision of Section 242(3) is mandatory. There can be no
doubt that the Magistrate is bound to take all such evidence as may be
produced in support of the prosecution. A Magistrate is not competent to
acquit the accused without taking all the evidence which is offered by the
prosecution. If he does acquit without taking all the evidence, the order is
illegal.

Under section 242(3) which is in very wide term, the Magistrate is bound to
take all such evidence as may be produced in support of the prosecution.
There is ample authority in support of the view that if in the course of the trial,
the prosecution thinks it necessary to file additional documents or statements
of witnesses on which they proposes to rely, the non-supply of copies does
not prevent them from filing the documents or examining the witnesses.

It is not the bounden duty of the court to compel the attendance of the
witnesses suo moto and examine them under Section 311, even if the
prosecution does not care to produce them. The court may help the
prosecution in securing the attendance of the witnesses. The prosecution has
to give the list of the witnesses and pray for issue of summons and the
summons being infructuous, the prosecution has to approach the Court for
warrant etc. If the prosecution fails to take steps and does not produce
evidence, the court may close the prosecution evidence and proceed further
and may acquit the accused.

The term examination means the examination, cross-examination and re-

examination. Consequently, when a witness is examined by the prosecution
on the date fixed for taking evidence, the witness has to be cross-examined
by the accused. But in suitable cases the Magistrate may postpone the cross-
examination of a witness who has been examined by the prosecution till other
witness or witnesses have been examined. This provision is for the benefit of
the accused to give him opportunity to cross-examine all the witnesses in
continuation.

Section 243 – Evidence for defence

The accused shall then be called upon to enter upon his defence and produce
his evidence; and if the accused puts in any written statement, the Magistrate
shall file it with the record.

If the accused, after he had entered upon his defence, applies to the
Magistrate to issue any process for compelling the attendance of any witness
for the purpose of examination or cross-examination, or the production of any
document or other thing, the Magistrate shall issue such process unless he
considers that such application should be refused on the ground that it is
made for the purpose of vexation or delay or for defeating the ends of justice
and such ground shall be recorded by him in writing:

Provided that, when the accused has cross-examined or had the opportunity
of cross-examining any witness before entering on his defence, the
attendance of such witness shall not be compelled under this section, unless
the Magistrate is satisfied that it is necessary for the ends of justice.

The Magistrate may, before summoning any witness on an application under

Sub-Section (2), require that the reasonable expenses incurred by the witness
in attending for the purposes of the trial be deposited in Court.

2. Cases instituted otherwise than on police report

Section 244 – Evidence for prosecution

When, in any warrant-case instituted otherwise than on a police report the

accused appears or is brought before a Magistrate, the Magistrate shall
proceed to hear the prosecution and take all such evidence as may be
produced in support of the prosecution. The Magistrate may, on the
application of the prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or other thing.

Section 245 – When accused shall be discharged

If, upon taking all the evidence referred to in section 244 the Magistrate
considers, for reasons to be recorded, that no case against the accused has
been made out which, if unrebutted, would warrant his conviction, the
Magistrate shall discharge him.

Nothing in this section shall be deemed to prevent a Magistrate from

discharging the accused at any previous stage of the case if, for reasons to be
recorded by such Magistrate, he considers the charge to be groundless.

Section 246 – Procedure where accused is not discharged.

If, when such evidence has been taken, or at any previous stage of the case,
the Magistrate is of opinion that there is ground for presuming that the
accused has committed an offence triable under this Chapter, which such
Magistrate is competent to try and which, in his opinion, could be adequately
punished by him, he shall frame in writing a charge against the accused.

The charge shall then be read and explained to the accused, and he shall be
asked whether he pleads guilty or has any defence to make.

If the accused pleads guilty, the Magistrate shall record the plea, and may, in
his discretion, convict him thereon.

If the accused refuses to plead, or does not plead or claims to be tried or if the
accused is not convicted under Sub-Section (3) he shall be required to stale,
at the commencement of the next hearing of the case or, if the Magistrate for
reasons to be recorded in writing so thinks fit, forthwith whether he wishes to
cross-examine any, and if so, which, of the witnesses for the prosecution
whose evidence has been taken.

If he says he does so wish, the witnesses named by him shall be recalled

and, after cross-examination and re-examination (if any), they shall be
discharged.

The evidence of any remaining witnesses for the prosecution shall next be
taken and after cross-examination and re-examination (if any), they shall also
be discharged.

Section 247 – Evidence for defence.

The accused shall then be called upon to enter upon his defence and produce
his evidence; and the provisions of section 243 shall apply to the case.

3. Conclusion of trial

Section 248 – Acquittal or conviction

If, in any case under this Chapter in which a charge has been framed, the
Magistrate finds the accused not guilty, he shall record an order of acquittal.

Where, in any case under this Chapter, the Magistrate finds the accused
guilty, hut does not proceed in accordance with the provisions of section 325
or section 360, he shall, after hearing the accused on the question of
sentence, pass sentence upon him according to law.

Where, in any case under this Chapter, a previous conviction is charged

under the provisions of Sub-Section (7) of section 211 and the accused does
not admit that he has been previously convicted as alleged in the charge, the
Magistrate may, after he has convicted the said accused, take evidence in
respect of the alleged previous conviction, and shall record a finding thereon:

Provided that no such charge shall be read out by the Magistrate nor shall the
accused be asked to plead thereto nor shall the previous conviction be
referred to by the prosecution or in any evidence adduced by it, unless and
until the accused has been convicted under Sub-Section (2).

Section 249 – Absence of complainant

When the proceedings have been instituted upon complaint, and on any day
fixed for the hearing of the case, the complainant is absent, and the offence
may be lawfully compounded or is not a cognizable offence, the Magistrate
may, in his discretion, notwithstanding anything hereinbefore contained, at
any time before the charge has been framed, discharge the accused.

Section 250 – Compensation for accusation without reasonable cause.

If, in any case instituted upon complaint or upon information given to a police
officer or to a Magistrate, one or more persons is or are accused before a
Magistrate of any offence triable by a Magistrate, and the Magistrate by whom
the case is heard discharges or acquits all or any of the accused, and is of
opinion that there was no reasonable ground for making the accusation
against them or any of them, the Magistrate may, by his order of discharge or
acquittal, if the person upon whose complaint or information the accusation
was made is present, call upon him forthwith to show cause why he should
not pay compensation to such accused or to each or any of such accused
when there are more than one or, if such person is not present direct the
issue of a summons to him to appear and show cause as aforesaid.

The Magistrate shall record and consider any cause which such complainant
or informant may show, and if he is satisfied that there was no reasonable
ground for making the accusation, may, for reasons to be recorded, make an
order that compensation to such amount not exceeding the amount of fine he
is empowered to impose, as he may determine, be paid by such complainant
or informant to the accused or to each or any of them.

The Magistrate may, by the order directing payment of the compensation

under Sub-Section (2) further order that, in default of payment, the person
ordered to pay such compensation shall under go simple imprisonment for a
period not exceeding thirty days.

When any person is imprisoned under Sub-Section (3), the provisions of

sections 68 and 69 of the Indian Penal Code (45 of 1860) shall, so far as may
be, apply.

No person who has been directed to pay compensation under this section
shall, by reason of such order, be exempted from any civil or criminal liability
in respect of the complaint made or information given by him:

Provided that any amount paid to an accused person under this section shall
be taken into account in awarding compensation to such person in any
subsequent civil suit relating to the same matter.

A complainant or informant who has been ordered under Sub-Section (2) by a

Magistrate of the second class to pay compensation exceeding one hundred
rupees, may appeal from the order as if such complainant or informant had
been convicted on a trial held by such Magistrate.

When an order for payment of compensation to an accused person is made in

a case which is subject to appeal under Sub-Section (6), the compensation
shall not be paid to him before the period allowed for the presentation of the
appeal has elapsed, or, if an appeal is presented, before the appeal has been
decided; and where such order is made in a case which is not so subject to
appeal the compensation shall not be paid before the expiration of one month
from the date of the order.

The provisions of this section apply to summons-cases as well as to warrant

cases.

QUESTION 3:- Discuss the provisions of tender of pardon?

SECTION 306-Tender of pardon to accomplice

The purpose of this section is to grant pardon to an accused where a serious

offence is alleged to have been committed by many persons so that with the
help of the evidence of such accused, the offenders may be punished.

The pardon can be granted when the offences are triable by the Court of
Session or by a court of special Judge appointed under the Criminal Law
(Amendment) Act 1952 and the offences punishable with imprisonment which
may extend to 7 years or with a more severe sentence nor exclusively triable
by a Court of Session. The provision of this section cannot be enlarged.
Pardon can only be tendered with respect to the categories of offences
mentioned in the section and to none others. The jurisdiction to tender pardon
is strictly limited to the offences mentioned in the section.

The Chief Judicial Magistrate or a Metropolitan Magistrate or the Magistrate of

first class may grant pardon with the only difference that the Chief Judicial
Magistrate or a Metropolitan Magistrate may grant pardon in any case
whether they have taken cognizance of it or not. They may grant pardon at
any stage of investigation or inquiry into or trial of the offence even if the trial
is proceeding before the Court of Session. But the Magistrate of first class can
grant pardon only in the cases which he is enquiring or trying and he can
grant pardon only at any stage of the inquiry or trial. A Magistrate of First
Class cannot grant pardon at the stage of the investigation, nor can do so in a
case which is not before him for inquiry or trial.

The only conditions required for granting pardon are that the accused should
make a thorough and complete disclosure of all the facts within his knowledge
throwing light upon the offence or the offences about which he promises to
give evidence. The Magistrate granting pardon has power to add any
condition. The Magistrate may make a condition that if the approver fails to
make a full disclosure of the facts, he may be prosecuted.

It is discretionary with the Magistrate to grant pardon. But he should exercise

the power in exceptional circumstances. If no approver is examined as a
witness the other accused will go free, pardon may be granted. When there
are a number of witnesses, of fact, the pardon should not be granted to an
accused. In any case no pardon should be granted to the main offender.

It often happens that the police does not charge sheet one of the accused and
examines him as a witness. The evidence of such a witness is not irrelevant,
but such course should be deprecated.

The Magistrate granting pardon shall explain all the conditions to the accused.
He has to make it clear to the accused that if he does not fulfill the conditions
and if he conceals any material fact or if he tells anything false, he may be
tried. The Magistrate shall record his reasons and should also mention as to
whether the pardon was accepted. The Magistrate has also to supply a copy
of this procedure to the accused if asked for. If the manner of pardon is
substantially complied with, though it is not very regularly recorded, the
procedure is legal.

Before an accused can be examined against a co-accused not only that a

pardon should be tendered to him, but it is necessary that he should accept it.
If the pardon is not accepted by a person, his position remains that of an
accused. The acceptance of pardon need not be in writing. It may be
evidenced by the conduct. A person can be said to have accepted a pardon
only when he sticks to the conditions imposed.

The Magistrate tendering pardon has to record the reason for granting
pardon. The reasons that the accused is granted pardon so that evidence
may be available against the other accused is a good reason. The giving of
the reason is not a condition precedent for granting a pardon. It is only a
matter of procedure and the failure to record reason is only an irregularity
which does not affect the pardon. It has been held that recording of reason is
mandatory provision. If the reasons are not recorded the order of Magistrate
can be quashed.
The expression ‘any person supposed to have been directly or indirectly
concerned in or privy to an offence’ does not necessarily mean a person
against whom a charge sheet has been submitted nor is it necessary that he
should know exactly what crime has been committed. The ground of granting
a pardon is not the extent of complicity of a person in the offence. The fact
that the person concerned does not implicate himself to the same extent as
he does others is no bar in granting a pardon.

The pardon granted is not limited to the offences for which the trial is being
held, rather it extends to all the offences which were so connected with the
offence for which the pardon was tendered. The approver on acceptance of
the pardon is required to make a complete disclosure of all the facts within his
knowledge bearing upon the offence or offences as to which he gave
evidence. Pardon protects the offender from being prosecuted for the offence
for which pardon is granted.

In some cases pardon once granted and accepted cannot be withdrawn.

If the person to whom pardon is tendered has not been released on bail prior
to granting him pardon, he shall be detained in custody until the termination of
the trial. The provision to keep him in custody is mandatory and neither the
Magistrate nor the Judge nor even the High Court can grant him bail.

Custody, under this section, means a judicial custody. A person who is

granted pardon has not to be sent to police custody. He has to be kept in
judicial lock-up.

Even if the pardon has been refused at one stage, a further request can be
entertained and considered only if fresh or additional facts are placed by the
parties concerned.

A tender of pardon and its acceptance is a matter entirely between court

concerned and the person to whom it is made. The other person against
whom an investigation or enquiry is going on in connection with the same
offence have no right to object to the making the tender of pardon.

Under the old Code, it was held by the Delhi High Court that the order
tendering the pardon was an administrative order and so it was not revisable.
This case was over ruled and the order was revisable. Under the present law,
The order tendering the pardon and order declining to tender pardon are
interlocutory orders and so no revision lies.

There are two ways open to the prosecution to examine a co-accused against
the others without granting him pardon. The public prosecutor may withdraw
from the prosecution against that accused under Section 321, get him
discharged and then examine him. The second course open to the
prosecution is to separate the case of that particular accused from that of the
other accused and then examine him in the case against the other accused.
The police carrying investigation may make an accused a witness by giving
him assurance that he would not be prosecuted. A person liable to be
summoned under Section 319 is a competent witness if not summoned as an
accused under that Section 55.

The release of the approver on bail by the High Court does neither affect
pardon granted to him nor the trial.

SECTION 307-Power to direct tender of pardon

At any time after commitment of a case, but before judgment is passed, the
Court to which the commitment is made may, with a view to obtaining at the
trial the evidence of any person supposed to have been directly or indirectly
concerned in, or privy to, any such offence, tender a pardon on the same
condition to such person.

SECTION 308-Trial of person not complying with conditions of pardon

The prosecution of an approver can be started only on the certificate of the

public prosecutor to the effect that the person has not complied with the
conditions of the pardon by willfully concealing anything essential fact or by
giving false evidence. The sole basis for the prosecution of the approver is the
certificate of the public prosecutor.

The provision of this section pre-supposes that the pardon which had been
tendered was accepted and thereafter the approver has willfully concealed
anything essential or has given false evidence. There must be acceptance of
the pardon and the person must be examined. If the pardon has not been
accepted, the trial of the approver without certificate is illegal and it is also
illegal to try him with other accused.

The approver may be tried for the offence in respect of which pardon has
been tendered, or the other offence which might have been committed in
connection with the same matter and for giving false evidence.

The trial of a person who has not complied with the condition of the provision
must not be held jointly with other accused of the case, but if the pardon has
not been accepted by him, he may be jointly tried.

The trial for perjury cannot be started without the sanction of the High Court.
The High Court is not bound to accord the sanction in each and every case.
The High Court before granting sanction should consider all the
circumstances in the case and decide the main question whether the previous
statement or the confession was true and voluntary. If it is of opinion that the
previous statement and confession was true, the sanction may be accorded. If
the statement at the time of pardon is not true, the inference may be that the
statement was obtained by force and sanction is not to be granted.

For the trial of an approver only the sanction of the High Court is needed.
Neither an enquiry under Section 340 nor a complaint by the Court under
Section 195 is needed. The approver shall be tried on the charge-sheet
submitted by the police.

At the trial of the approver, the statement at the time of accepting the pardon,
the statement made by the approver under section 164 after accepting the
pardon and the statement at the committal proceeding and at the trial shall be
relevant against the accused at his trial for perjury. The statement to be
admissible under this section should be made after the acceptance of the
pardon.

The accused has a right to plead at the trial that he fulfilled the conditions of
the pardon and if he so pleads, the burden to prove that he did not comply
with the pardon either by willful concealment of essential fact or giving false
evidence, lies on the prosecution.

A Sessions Judge or Magistrate trying an approver has to ask the approver

whether he pleads that he had complied with the conditions of the pardon.
The Judge has to put this question before he examines the witnesses; failure
to follow this procedure would vitiate the trial. Sub-sections (4) and (5) of
Section 308 make it clear that in the trial of an approver who has forfeited the
pardon, the question whether he pleads that the conditions of pardon have
been complied with by him has to be first decided before he is tried for original
offence. It is imperative for the Sessions Courts to ask the accused whether
he pleads that the conditions of pardon have been complied with before the
charge for the original offence is read out. If he so pleads, a clear finding on
the question of compliance or non-compliance of the conditions of pardon
would be condition precedent to his protection for the original offence after he
forfeits his pardon.

The Court has power to record the plea of the approver and for the sake of
justice, it has to record it in full.

The court after recording the plea of the approver will proceed with the trial,
but before passing any judgment, it has to decide whether or not the approver
has complied with the conditions of the pardon.

If the Court comes to the conclusion that the prosecution could not prove that
the approver did not comply with the conditions of the pardon, it has to pass a
judgment of acquittal. Only when the finding is against the approver, he may
convict the accused.

Question4. What do you mean by FIR? In what circumstances a

Magistrate can make an order for investigation of an offence? OR What
are the ingredient of FIR? What are the effects of delay in filing FIR?

INTRODCTION:-First information report and investigation plays an important

role in administering of criminal justice. It is expected that it should be
recorded with utmost care and caution. It should be recorded without any
delay so that manipulation of facts does not arise. FIR & Investigation
determines that a prima facie case exist against the accused or not. Sections
154 of Cr.P.C.-1973 described in detail about FIR, but fi word is not as such
written in tis section.

ESSENTIAL ELEMENTS OF F.I.R.

Although the definition of FIR is no given in the Cr.P.C. however it may be as

follows:-

i) It is information which is given at the first stage to the Police Officer

In- charge of the Police station.

ii) Information must relate to a cognizable offence.

iii) It is on the basis of this information that investigation into the offence
commences.

v) The FIR could be in any type i.e. written or oral. It can also be given
on telephone. Sunil v/s State of MP, 1997.

It is essential that a detailed explanation of the happening should be given in

FIR. In a case of Navratan Mahanto v/s State of Bihar-1980, the court
observed that the prosecution cannot be dismissed merely on the basis that
FIR does not contains the complete explanation of happening as only gist of
the happening in factual position needs to be mentioned.

Section 154 says- As soon as the Officer-in-charge receives information of

commission of a cognizable offence entry to this effect shall & immediately be
made in the Register maintained for this purpose without delay.

If any information is given orally, it should be recorded and then to read and
obtained the signature of the person giving information.

In a case of State of A.P v/s P. Ramulu, 1993, the court observed that FIR
cannot be refused to be recorded on the ground that the offence was
committed not within the jurisdiction.

There should be no delay in registering FIR (Gnash Bhawan Pated v/s State
of Maharashtra, 1979.).

CIRCUMSTANCES WHEN MAGISTRATE ORDERS FOR

INVESTIGATION: – Investigation begins with the FIR. If the FIR is regarding
any non-cognizable offence then such information shall be recorded in the
register maintained for this purpose and the person who is giving the
information will be referred to the Magistrate. In other words investigation
cannot be done without the order of the Magistrate.

Section 155 of the Code of criminal procedure provides that:-

1. No Police Officer shall investigate a Non-cognizable case without the
order of the Magistrate having power to try such case or commit the case for
trial.

2. Any Police officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as an
Officer–in-charge of a police station may exercise in cognizable case.

3. Where a case relates to two or more offences of which at least one is

cognizable, the same shall be deemed to be a cognizable case,
notwithstanding that the other offences are non-cognizable.

4. An investigation in a non-cognizable offence made under the order of

Magistrate is treated as in investigation under chapter-XII and the report will
be submitted to the Magistrate under section 173(2).

In cases of cognizable Offences, there is no need of the orders of the

Magistrate to begin the investigation. However it has also been made clear
by the Supreme Court a new provision under the code under section 155(4)
which incorporates a view of Supreme Court that where a case relates to two
or more offences of which at least one is cognizable the case shall be
deemed to be a cognizable case, in-spite of the fact that other offences are
non-cognizable, where there are both cognizable and non-cognizable
offences mixed together the Police Officer can investigate even if there is
single cognizable offence.

Question 5. Discuss the provisions relating to Information to the police

and their powers to investigate.
INTRODUCTION: – Section 154 speaks of information relating to the
commission of a cognizable offence given to an officer-in-charge of a Police
Station. This section has a three-fold object that to inform the District
Magistrate and Supdtt. Of Police who are responsible for maintaining peace
and safety of the District. It is also pertinent to brought it in the notice of
judicial officers before whom the case is ultimately tried. And the most
important to safeguard the accused against subsequent variations or
additions.

1. INFORMATION IN CONIZABE 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. Every such information, whether given in writing
or reduced to writing as aforesaid, shall be signed by the person giving it. The
officers receiving make the entries of the substance thereof in the prescribed
Register available with him.

2. Copy of the Information as recorded shall be given forthwith free of cost

to the informant.

3. Refusal to record the information:- If any officer-in-charge of police station

refuses to record the information the informant may send to substance of such
information to the Supdtt. Of Police concern who further on his satisfaction will
investigate the case himself or direct to his subordinate.

4. The information given to Police Office and reduced to writing as required

under the section is called FIR. When any information discosing cognizable
offence is laid before the Officer I/c of a Police Station, he has no option but
to register the case of that base as held in State of Haryana v/s Ch.Bhajan
Lal-1992.In a case of Gurpreet Singh v/s State of Punjab-2006:- It was held
that merely non-disclosure of the names of witnesses in the daily diary as well
as mortuary register cannot affect the prosecution of case.

Case State of A.P. v/s V.V. Panduranga Rao-2009: It was held that statement
given on telephone is to be treated as FIR because cryptic telephonic
message of cognizable offence received by Police would not constitute FIR.
The mere fact that the telephonic message was first in point of time does not
by itself clothe it with character of FIR.

5. Where FIR is lodged and what Object:- Generally the information about
the offence committed is given to the Police Station of the place concern, but
it does not mean that it cannot be lodged elsewhere. In a case of Punati
Raube v/s State of A.P.-1993: The police constable refused to record the
compalaint on the ground that the said police station had no territorial
jurisdiction over the place of crime. Any lack of territorial jurisdiction could not
have prevented the constable from recording information about the cognizable
offence and forwarding the same to concern police station.

6. The object of FIR: the main object of the FIR is to complain of any of the
offence to a Police officer so that criminal law could be applied. Where the
FIR was found o have been written after the inquest report was prepared the
court held that it has lost its authenticity in the case of Balaka Singh v/s State
of Punjab-1975.

7. IMPORTANCE OF FIR:- On consideration its important from every angle

it is noticed that FIR is a very important from the occurrence of an offence. It
should be given immediately after the offence is committed. The delay in
giving information is viewed with grave suspicion as held in the case of
Modivalappa -1966. There is no need to give the names of witnesses or other
minute detail.

8. Duty to register FIR:- In a case of Rajender Singh Katoch v/s Chandigarh

Administration & Others-2008, that although the officer-in-charge of Police
station is legally bound to register a FIR in term of sec.154. It was also held in
Aleque Padamsee and Others v/s Union of India-2007:- that in case of
inaction of police officials in registering FIR person aggrieved can adopt
modalities contained in sec.190 read with 200 Cr.P.C by laying complaint
before the magistrate concern to take cognizance of offence.

9. Delay in filing FIR: – Delay in giving FIR can be condoned if there is

satisfactory explanation as held in Apren jospeh v/s State of Kerla-1973.
Whether the delay is so long as to throw a cloud of suspicion on deeds of the

prosecution case must be depend upon a variety of actors, Case Ram Jog v/s
State of UP-1974.

10. Delay in lodging FIR in rape cases:- In State Of Himachal Pradesh v/s
Shreekant Shekari-2004: That mere delay in lodging FIR does not anyway
render prosecution version brittle.

11. Powers to investigate:-Under section156 the police is empowered to

investigate into a cognizable offence without order of a Magistrate or without a
formal first information report. If the police do not investigate the Magistrate
can order for the investigation as in case of Abhyanand Jha v/s Dinesh
Chandra-1968. Sec. 156(2) provides that no proceeding of a Police Officer in
any such case shall at any stage be called in question on the ground that the
case was one which such officer was not empowered under this sec. to
investigate, case Hari Singh v/s State of UP-2006. Sec.156(3) Any magistrate
is empowered under sec.190 may order such an investigation , case
Bateshwar Singh v/s State of Bihar-1992.

Question 6. Brief the Jurisdiction of criminal Courts in inquiries &Trials.

OR “Every offence shall ordinarily be inquired and tried by court within
the local limits of whose jurisdiction It was committed.” Explain the
statement and state its exception.

INTRODUCTION: – A Magistrate within whose local jurisdiction the offence is

committed is competent to take cognizance and to try the case. The
jurisdiction of the Magistrate does not come to an end by transfer of the
locality, where the crime was committed to another district. The court having
jurisdiction to try the offences committed in pursuance of the conspiracy can
try the offence of conspiracy even if it was committed outside its jurisdiction
under section 177.

It makes it clear that an offence shall be inquired and tried by a court

within the local limits of whose jurisdiction the offence was committed.
B.Patnaik v/s Smt.Binand, 1970, it was held that court decided that offences
shall be tried by a court within the local limits of whose jurisdiction the offence
was committed.

1. Place of inquiry or trial in certain matters:- Sec.178, when it is uncertain in

which of several local areas an offences was committed. The offence is
committed partly in one local area and partly in another. Where an offence is
continuing one and continues to be committed in more local areas than one.
Then it may be inquired or tried by a court having jurisdiction over any of such
local areas. State of M.P. v/s K.P.Ghiyara-1957.

2. Offence triable where act is done:- An act is an offence by reason of

anything which has been done and of a consequence which has ensued the
offence may be inquired into or tried by a court within whose local jurisdiction
such thing has been done or such consequence has ensued under sec. 179.
Case Lal chand v/s State -1961is suitable example a gang was created for
dacoity in a district but was committed in another district, it was decided that
the case can be tried by the court of any of the two districts.

3. Place of trial act is offence by reason of relation to other offence:- When

an act is an offence by reason of its to any other act which is also an offence
or which would be an offence if the door were capable of committing an
offence the offence which is done first may be inquired into or tried by a court
within whose local jurisdiction either act was done, under sec.180. Munna Lal
v/s State of Rajasthan-1964: committing theft and receiving stolen property,
such matter can be tried by a court of any of the two places.

4. Place of trial in case of certain offences:-Any offence of being a thug or

murder committed by a thug of dacoity, of dacoity with murder of belonging to
a gang of dacoits or of escaping from custody may be inquired into or tried by
a Court within whose local jurisdiction the offence was committed or the
accused person is found. Under sec.181. Jaswant Singh v/s Emperor, 1918,
in a matter of abduction of married woman for the purpose of unlawful
intercourse, it can be tried that court within whose local jurisdiction the woman
was detained.

5. Offences committed by Letters etc:- Any offence which includes cheating

may if the deception is practiced by means of letters o telecommunication
message be inquired into or tried by any court within whose local jurisdiction
such letters or messages were sent or were received and may offence of
cheating and dishonesty including delivery of property may be inquired into or
tried by a court within whose local jurisdiction the property was delivered by
the person deceived or was received by the accused person under sec.182.
Tekumalla Muneiah v/s C.B.Ammanamma, 1991: it was a case of bigamy the
court held the complainant could be entertained by the court having territorial
jurisdiction over that place.

6. Offence committed on journey or voyage:- When an offence is committed

while the person by or against whom or the thing in respect of which the
offence is committed is in the course of performing a journey or voyage the
offence may be inquired into or tried by a court through or into whose local
jurisdiction that person or thing passed in the course of that journey or
voyage, u/sec.183.

7. Place of trial for offences triable together:- Sec.184 says, where the
offence committed by any person are such that he may be charged with and
tried at one trial for each such offence by virtue of the provisions of seec.219
or sec.220 or sec.221. The offence or offences committed by several persons
are such that they may be charged with and tried together by virtue of the
provision of sec.223.Case: Pursottam Dalmiya v/s State of W.B.-1961.

8. Offences Committed Outside India:- When offences is committed outside

India by a citizen of India, whether on the high seas or elsewhere or by a
person not being such citizen on any ship or aircraft registered in India, he
may be dealt with in respect of such offence as if it had been committed at
any place in India at which he may be found.

Question7. DISCUSS THE JOINDER OF CHARGES UNDER CODE OF

CRIMINAL PROCEDURE.

INTRODUCTION:- The object of the rule embodied in the sec. 218 of Cr. P.
C., is to ensure a fair trial and to see that the accused is not bewildered or
perplex to confuse by having been asked to defend several unconnected
charges or distinct offences lumped together in one charge or in separate
charges. We will read the rules relating to joinder of charges described in
different part of this section. There is no exception to the rule that there should
be separate charge for each offence. The detail study of this section is as
under:-

DEFINITION: – For every distinct offence of which any person is accused

there shall be a separate charge and every charge shall be tried separately.
Where the accused person by an application in writing, so desires and the
Magistrate is of opinion that such person is not likely to be prejudiced thereby,
Magistrate may try together all or any number of the charges famed against
such person.

1. Effect of Contravention of Sec.218:- The effect of the contravention of the

provisions of this sec. has been considered by the Supreme Court in following
number of cases:- Sushil Kumar v/s Joy Shankar-1971: It was held that
charges under 408 and 477A of IPC could be tried together. In this case
several persons accused on several items of embezzlement were tried jointly.
There was no failure of justice in consequence of the joinder of charges had
occurred. In V.N. KAMDAR v/s DELHI MUNICIPALITY-1973: It was held, “that
the provisions of sec. 218 to 224 would indicate that separate charge and
separate trial for such distinct offence is the normal rule and joint trial is an
exception when the accused have committed separate offence.”

2. Failure to Explain injuries on the accused:- When the prosecution fails to

explain satisfactorily the injuries sustained by the accused there are number
of judicial pronouncements on this point. Case State of Gujrat v/s Bai Fatima-
1975: It was held that the accused had inflicted the injuries on the members of
the prosecution party in exercise of the right of self-defence.

3. Three offences of the same kind within year may be charged together:-
under section 219 of Cr. P. C. when a person is accused of more offences
than one of the same kind committed within the space of twelve months from
the first to the last of such offences, he may be charged with and tried at one
trial for any number of them not exceeding three. Provisions of section are
only enabling provisions, it applies where offences are of the same kind but it
does not apply where offences are not of the same kind such as criminal
breach of trust and falsification of accounts. Rahmat v/s State of U. P.-1980.

4. Trial for than one offence:- If in one series of Acts so connected together
as to form the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one trial for every such
offence as provided under section,220 of the Cr. P.C. Case Krishna Murthy
v/s Abdu Subhan- 1965. Case of Kanshiram v/s Jhunjhunwala-1935, with the
same it was necessary to ascertain whether they are so connected together
as to constitute a whole which can properly be described as a transaction.

5. Where it is doubtful what offence has been committed: – Sec.221

provides for the cases where it is doubtful what offence has been committed.
It applies to the cases in which the facts are not doubtful but the application of
law to the facts is doubtful as held in a case of Abdul Hamid -1935. This sec.
applies where the doubt is about the nature of the offence and not about the
facts as held in case Jatinder Kumar v/s State of Delhi-1992.

6. When the offence proved included in offence charged: – Sec.222

considered the conviction of minor offence included in the offence charged in
either of two cases, where the offence charged consists of several particulars
and combination is proved but the remaining particulars are not proved as
held in Maung Ba v/s the King-1938. And where the facts are proved which
reduce the offence charged to a minor offence as held in case of, Emperor
v/sAbdul Wahab-1945.

7. What persons may be charged jointly:- Under sec.223 joint trail of several
persons is permissible and applies only to trials and not to inquires. A joint
trial of several persons under this section is not vitiated merely by the facts
that at the end of the trial the facts found happen to be different from those on
the basis of which the charges were originally framed as held in case of
Trilokchand v/s Rex-1949. It was also held in case of A.R.Autulay v/s
R.S.Nayak-1988.

8. Withdrawal of remaining charges on conviction on one of several

charges: – When a charge containing more heads than one is framed against
the same person and when a conviction has been had on one or more of
them, the complainant or the Officer conducting the prosecution may with the
consent of the Court withdraw the remaining charge or charges. The court of
its own accord may stay the inquiry into or trial of such charges. Court may
proceed with the inquiry into or trial of the charge or charges so withdrawn.

Question 8. Discuss the provisions of trail before a Court of Session.

INTRODUCTION: – The procedure of trial of offences before court has been

described in section 225 to sec. 237 of the Criminal Procedure Code-1973.
Here it is important that any matter does not come directly for trial before the
Court of Sessions. Such matter is committed for trial to Court of Session. Any
matter is committed to Court of Session when it has the exclusive jurisdiction
to try such offence.

1. CONDUCTION OF TRIAL:- In every trial before a Court of Session,

the prosecution shall be conducted by a Public Prosecutor as laid down in
sec.225 of the code.
2. OPENING THE CASE FOR PROSECUTION:- When the accused
appears or brought by before the Court in pursuance of a commitment of the
case under section 209 the prosecutor shall open his case by describing the
charge brought against the accused and stating by what evidence he
purposes to prove the guilt of the accused under sec. 226 of Cr. P. C. case of
Hukam Singh v/s State of Rajasthan-2001.

3. DISCHARGE: – If upon the consideration of the record of the case

and the documents submitted therewith and after hearing the submission of
the accused and the prosecution in this behalf, the Judge considers that there
is not sufficient ground for proceeding against the accused he shall discharge
the accused and record his reasons for doing so. As held in case of
T.V.Sharma v/s R.Meeriah-1980. It is called charge arguments; court has to
consider the complete case carefully before giving order to discharge State of
J&K v/s Romeshchandra-1997. These are the provisions of sec.227.

4. Framing of charge: – While framing charges court shall only see

that there is a prima facie case against accused or not. At this juncture there
is no need for praising witnesses as held in case of State of M.P. v/s S.B.
Johri-2000. Where the judge frames any charge, the charge shall be read
and explained to the accused and accused shall be asked whether he pleads
guilty of the offence charged or claims to be tried as provided in section 228 of
Cr. P.C.

5. Conviction on Plea of Guilty: – If the accused pleads guilty the

judge shall record the plea and may in his discretion convict him thereon. The
plea of guilty only amounts to an admission that the accused committed the
acts alleged against him. It was held in case of Tyron Nazarath v/s State of
Maharashtra-1989. This is more so in case persons tried jointly when some
plead guilty and the others claim to be tried, case of Bantra Kunjana-1960.
These are provisions available in sec. 229 of Cr.P.C.

6. Date for Prosecution Evidence:- If the accused refuses to plead or

does not plead or claims to be tried or is not convicted under sec.229, the
Judge shall fix a date for the examination of witnesses and may on the
application of the prosecution issue any process for compelling the
attendance of any witness or the production of any document or other thing.
Case Mukipad Mandal v/s Abdul Jabbar-1973, it is the duty of court to take all
necessary steps to compel the attendance of witnesses. The accused cannot
be acquitted on the ground of failure of the witnesses to appear before the
court, under sec. 230.

7. Evidence for Prosecution:- On the date fixed, the judge shall

proceed to take all such evidence as may be produced in support of the
prosecution sec.231. when any witness appears before the court there shall
be no delay as possible in his examination but if any delay happens in the
examination of any witness the merely on this ground the prosecution matter
cannot be suspended case of Bunty urf Guddu v/s State of M.P-2004.
8. Acquittal: – If after taking the evidence for the prosecution
examining the accused and hearing the prosecution and he defence on the
point the Judge considers that there is no evidence that the accused
committed the offence the judge shall record an order of acquittal under sec.
232. The accused can either be convicted or acquittal but not discharged.

9. Entering Upon Defence :- Where th accused is not acquitted under

sec.232 he shall be called upon to enter on his defence and adduce any
evidence he may have in support thereof. It the accused puts in any written
statement the judge shall file it with the record. If the accuse applies for the
issue of any process for compelling the attendance of any witness or
production of any document or thing the judge shall issue such person unless
he considers such application for the purpose of vexation or delay or for
defeating the ends of justice. Case State of MP v/s Badri Yadav-2006. These
are the provisions in sec.233.

10. Arguments:- When the examination of witnesses for the defence is

complete the prosecutor shall sum up his case and accused shall be entitled
to reply. During his process where any point of law is raised by the accused
the prosecutions mazy with the permission of judge make his submissions
with regard to such point of law under sec. 234. It is called arguments.

11. Judgment:-After hearing both the parties the judge shall give a
judgment in the case under sec.235.Case:Alluddin Mian Sharif Mian v/s State
of Bihar-1989.

12. Previous Conviction: – If the accused is charge of previous

conviction and the accused does not admit that then judge may take evidence
in respect of the alleged previous conviction and record a finding thereon
under sec. 236.

13. Procedure in cases instituted under Sec. 199:-Sec.237 of the code

provides the procedure for trial of such matters which have been instituted
under sec.199 (2). Sec.199 (2) provides for prosecution of defamation
matters. If any matters of defamation is alleged to have been committed
against the President of India, Vice-President, Governor of State,
Administrator of UT, Minister of Union or State or Any other Public servant. If
during trial court finds scope of acquittal he may pass such orders.

Question 9. For every distinct offence of which any person is accused

there shall be a separate charge and every such charge shall be tried
separately. Explain are there any exceptions to this rule, if so what?

INTRODUCTION:- Provisions relating to charge are aimed at giving complete

information to the accused about the offence of which he is being charged. It
gives the accurate precise information about the accusations made against
him. Every charge shall state the offence with which the accused is charged.
The charge shall be written in the language of the Court. The language of the
charge should be specific and clear.
WHAT IS CHARGE: – Sec.2 (b) of Cr.P.C.-1973 provides the definition of
charge but it is neither definition as per dictionary meaning nor it is directing
any meaning. It only says that, “Charge induces any head of charge when the
charge contains more heads than one.” Charge is such a written statement of
the information of offence against the accused person which contains the
grounds of charge along-with time, place, person and things in relation to
which offence is committed. The charge is a precise formulation of the specific
accusation of an offence against the accused person. Accused prepares his
defences on the basis of it.

Components of Charge:- Sec.211 says that:-

1. Every charge shall state the offence with which the accused is charged.

2. If the law which creates the offence gives it any specific name, the same
may be described by that name, like theft, robbery, dacoity or murder etc.

3. If law does not give any specific name so much of the definition of the
offence must be stated for giving the notice to accused.

4. The Law and section of the law against which the offence is committed
shall be mentioned in the charge.

5. The fact that the charge is made is equivalent to a statement that every
legal condition required by law to constitute the offence is fulfilled.

6. The charge shall be written in the language of the court. Case of Krishan
v/s State of Kerla-1958.The court said that charge should be in Court’s
language.

7. The previous conviction if any of the accused must be stated in the

charge i.e. place, date and the fact of the offence.

According to Sec. 212:- Particulars as to time place and person:-

1. The time of commission of the offence be given in the charge.

2. The place of commission of the offence may also be recorded in

charge.

3. The person against whom or thing in respect of which it was

committed.

4. The manner of committing offence must be stated in the charge u/s

213.

5. The words must be of sense of law under which offence is punishable

u/s214.
Effect of Errors: – Section 215 of the code says that there should be no error
in stating either the offence or the particulars required to be stated in the
charge, there should also be no omission to state the offence or those
particulars which at any stage of the case as material unless the accused was
in fact misled by such error or omission which may results the failure of
justice. Then such charge shall be considered faulty and the trial on the basis
of such charge shall also be faulty.

Court May alter the charge: Under sec.216, any court may alter or add to any
charge at any time before the judgment is pronounced.

Recall of Witnesses when charge altered:- under section 217, whenever the
charge is altered or added to by the Court after the commencement of the trial
the prosecutor and the accused shall be allowed to recall or re-summoned
and examine the alteration and addition any witness who may have been
examined.

Separate charges for distinct offence: – The object of sec.218 is to ensure a

fair trial and to see that the accused is not bewildered by having been asked
to defend several unconnected charges or distinct offences lumped together
in one charge, case of Aftab Ahmad Khan v/s State of Hydrabad-1954.

Same offences of same kind within one year may be charged together: – sec.
219 provides that offences punishable under sec.379 and 380 IPC shall be
deemed to be offences of the same kind. Criminal breach of trust and
falsification of accounts, when the offence is committed by a single accused
and is not applicable where several persons are tried jointly.

Trial for than one offence:- Sec.220 provides If in one series of acts so
connected together as to form the same transaction, more offences than one
are committed by the same person, he may be charged with, and tried at one
trial for every such offence. Case State of Biahar v/s Simranjit Singh-1987.

Framing of charge where it is doubtful what offence has been committed:-

sec.221 of the code provides for the framing of charge in those matters where
there is doubt of what offence has been committed. In such matters, charge
shall be framed as follows:-

All offences committed as a result of the nature of Act.

All or any of such offences charged in the alternative with having committed
some one of the said offences. Goverdhan v/s Kanilal-1953.

When offence proved included in offences charged:- When a person is

charged with an offence consisting of several particulars or an offence and
facts are proved which reduce it to a minor will be convicted of the minor,
case of State of Maharashtra v/s Rajendra Jawanmal Gandhi-1997,
Sangarobina Sreenu v/s State of A.P.-1997. These are the provisions of
Sec.222 of the code.
Withdrawal of remaining charges on conviction on one of several charges:-
Sec.224 of the code says that when a charge containing more heads than one
is framed against he same person and when a conviction has been had one
or more of them the applicant or prosecution with the consent of court
withdraw the remaining charges or court of its own accord may stay the
inquiry or trial.

Question 10. What do you mean by Judgment? What are the contents of
judgment? Discuss the powers of High court to confirm death
sentence?

INTROUDCTION: – After hearing both the parties the Judge give a judgment
in the case. The judgement in every trial in any criminal court of its own
jurisdiction shall be pronounced in the open court by the presiding officer
immediately after the termination of the trial or at some subsequent time of
which notice shall be given to the parties or their pleaders.

1. Section 353 of the cr. procedure code-1973 provides:-The judgment in

every trial in any criminal court in its own jurisdiction shall be pronounced in
open court by the presiding officer immediately after the termination of the trial
or at some subsequent time of which notice shall be given to the parties or
their pleaders. Case Anthony v/s State-1993. It was also held in a case of
Yelchuri Manohar v/s State of A.P-2005, that electronic media cannot provide
any guiding factors.

2. Language and contents of Judgment: – That every judgment shall be

written in the language of the Court. It may also contain the point or points for
determination, the decision thereon and the reasons for the decision, as
provided in sec. 354 of the code. Case of Ram Bali v/s State of U.P. -2004.
The language and the contents of the judgment must b self-contained and
must also show that the court has applied its mind to the facts and the
evidence, as held in case of Niranjan V/s State -1978. Failure to signing of
judgment at the time of pronouncing it is only a procedural irregularity curable
as per instructions provided in the code.

3. Judgment of Metropolitan Magistrate: – That instead of recording a

judgment in the manner provided a metropolitan magistrate shall record the
serial number of the case, the date of commission of the offence along-with
the name of the complainant. The name of the accused person his parentage
and residence mentioning the plea and examination of accused. The date of
final order may also be recorded as provisions laid down in sec.355.

4. Order for notifying address of previously convicted offender: – Sec. 356 of

the code provides that, when any having been convicted by a court in India of
an offence punishable. If such conviction is set aside on appeal or otherwise
such order shall become void. State Govt., can make rules to carry out the
provisions relating to the notification of residence.

5. Order to pay compensation:-The quantum of compensation is to be

determined by taking into consideration the nature of the crime, injury suffered
and the capacity of the convict to pay in case of Manish Jalan v/s State of
Karnatka-2007. These are the provisions of the section 357.

6. Scheme for compensation to victim:-In every state with the coordination

with the central Govt., shall prepare a scheme for providing funds for the
purpose of compensation to the victim or his dependents who have suffered
loss or injury as a result of the crime and who require rehabilitation under
sec.357A.

7. Compensation to persons groundlessly arrested: – Sec. 358 provides that

whenever any person causes a police officer to arrest another person if it
appears to the Magistrate by whom the case is heard that there was no
sufficient ground of causing such arrest. The Magistrate may award such
compensation not exceeding 1000/- rupees as held in case of Parmod Kumar
v/s Golekha1986.

8. Order to pay costs in non-cognizable cases: – Sec.359 says that whenever

any complaint of a non-cognizable offence is made to a court, the court if it
convicts the accused can order to pay the penalty along-with cost incurred by
the complainant and in case of default of payment the accused can sentence
simple imprisonment for a period not exceeding 30 days.

9. Order to release on probation of good conduct after admonition:-Sec.360

says that this section is a piece of beneficent legislation. It applies only to first
offenders. It enables the court under certain circumstances to release the
accused who has been convicted on probation of good conduct as in a case
of Ved Parkash v/s State of Haryana-1981.

10. Special reasons to be recorded in certain cases: – Where in any case the
court could have dealt with an accused person under the provisions of
offenders Act a youthful offender may tried by any other law for the time being
in force for the treatment training or rehabilitation of youthful offenders as held
in case of Nanna v/s State of Rajasthan-1989, under sec. 361.

11. Court not to alter Judgment:- According to section 362 of the code that
any other law for the time being in force no court when it has signed its
judgment or final order disposing of a case shall alter or review the same
except to correct a clerical or arithmetical error, case of Naresh & others v/s
State of U.P.-1981.

12. Copy of the judgment to be given to the accused and other persons: –
Section 363 says that a copy of the judgment shall immediately after the
pronouncement of the judgment be given to him free of cost, as held in case
of Ladli Parsad Zutsi-1932.

13. Judgment when to be translated: – Sec.364 provides that the original

judgment shall be filed with the record of proceedings and where the original
is recorded in different language from that of court and so requires it may be
translated in to the language of the Court.
14. Court of Session to send copy of finding and sentence to District
Magistrate: – In the case tried by the court of session or a CJM the court or
such magistrate as the case may be shall forward a copy of its or his finding
and sentence if any to the District Magistrate as said in sec. 365 of the code.

14 Submission of death sentences for confirmation:-Sec.366When a Court of

Session passes a sentence of death the proceedings shall be submitted to
H/C, it cannot be executed unless it is confirmed by H/C. Sec.371 procedure
laid down that the Proper officer without delay after the order of confirmation
or other order has been made by H/C send a copy of the order under seal of
H/C duly attested to S.Court

Question 11. Examine the law relating to appeal in criminal case. Make a
difference between Appeal & Revision in criminal cases.

INTRODUCTION:-Appeal is an important remedy for person’s dissatisfied

from judgment finding and orders of the trial court. Under section 372 of the
Cr.P.C., it is provided that relation to appeal it is necessary to know that no
appeal shall lie from any judgment or order of a criminal court except as
provided by this code or any other law for time being in force, case Garikapati
v/s Subhash coudhari-1957. However the provisions regarding making an
appeal are the following:-

1. Appeal from orders requiring security or refusal to accept or rejecting surety

for keeping peace or good behavior: – Any person who has been ordered to
give security for keeping the peace or for good behavior or who is aggrieved
by any order refusing to accept or rejecting a surety on the basis of sec.373.

2. Appeals from Convictions: – According to section 374 of code that any

person convicted on a trial by a H/C in its extraordinary original criminal
jurisdiction may appeal to Supreme Court similar any person convicted by
session judge or on a trial held by any other court which sentence or
imprisonment is more than 7 years may appeal to High court. Case Panchi v/s
State of U.P.-1998, In C.Gopinathan v/s State of Kerala-1991

3. Appeal by State against sentence: – Under sec.377, the state Government

may in any case of conviction on a trial held by any court other than a H/C
direct the Public Prosecutor to present an appeal against the sentence on the
ground of its inadequacy to Court of Session if the sentence is passed by the
Magistrate or to the H/C if the sentence is passed by any other Court. When
an appeal is filed against the sentence on the ground of its inadequacy court
shall not enhance the sentence except after giving to the accused a
reasonable opportunity of sowing cause against such enhancement. Case of
Nadir Khan v/s State-1976.

4. Appeal in case of Acquittal :- In an appeal against acquittal under sec.378

the H/C has full power to review at large the evidence on which the acquittal is
based and to reach the conclusion that the order of acquittal should be
reversed as held in case of Mohandas v/s State of MP-1973, but exercising
his power the H/C should give proper weight and consideration to the view of
the trial judge as to the credibility of witnesses, presumption of innocence in
favour of the accused. And a right of the accused to the benefit of any doubt.
It was also held in State of U.P. v/s Gambir Singh-2005 case of appeal
against acquittal if on same evidence two views are possible, the one in
favour of accused must be preferred.

During the hearing of appeal from the order of acquittal it should be taken into
consideration that there is no miscarriage of justice, case Allahrakha K.
Mansuri v/s State of Gujrat-2002. The order of acquittal cannot be dismissed
merely on the ground that a second approach could have been applied in the
case and it means that the accused could have been convicted on
considering another view a case of Chandra Singh v/s State of Gujrat-2002.

5. Appeal against conviction by H/C in certain cases :-Where an H/C has on

appeal reversed an order of manifest on record of acquittal of an accused
person and convicted him and sentenced him to death or to imprisonment for
life or to imprisonment for a term of ten years or more, he may appeal to the
Supreme Court under sec. 379.

6. Special right of appeal in certain cases:- In Shingara Singh v/s State of

Haryana-2004, when more persons than one are convicted in one trial and an
appealable judgment or order has been passed in respect of any of such
persons, under section 380.

7. Appeal to court of session how heard:- Appeal to the court of session

shall be heard by the sessions judges or by ASJ u/s 381.

8. Petition of appeal:-Every appeal shall be made in the form of a petition in

writing presented by the appellant or his pleader u/s 382.

Question 12. DIFFERENCE BETWEEN APPEAL & REVISION

APPEAL

1. Any person convicted on a trail held by H/C may appeal to S/C.

2. Any person convicted on a trial by a Session judge or on a trial held by

any other court for more than 7 years may appeal to the High Court

3. Any person convicted on a trial held by metropolitan Magistrate or

Magistrate Ist. Class may appeal to Session Judge.

4. If the appellant is in jail he present his petition of appeal through Officer I/c
jail.

5. Pending an appeal by accused person the appellate court shall suspend

the execution of order of sentence & if he is in confinement he be released on
bail.

REVISION
1. The correctness, legality or proprietary of any finding sentence or order of
any lower court.

2. The regularity of any proceedings of such court.

3. The powers of revision cannot be used through interlocutory orders.

4. During the hearing of Revision argue of the person applying for revision
should be considered seriously even though it they are too brief. Case Pal
George v/s state-02.

Question 13. What is bail? State the provisions of Bail under Cr.P.C. Can
a person get order to be released on Bail without judicial or Police
custody? Refer case law.

INTRODUCTION:-It is travesty of justice that many poor accused i.e. ‘little

Indians’ are forced into long cellular servitude for little offences because the
bail procedure is beyond their meagre means and trails don’t commence and
even if they do, they never conclude. Our bail system suffers from a property
oriented approach which means to proceed on the erroneous assumption that
risk of monetary loss is the only deterrent against fleeing from justice.

What is bail?-When any person who is accused of any offence other than
non-bailable offence, he shall be released on bail under sec.436 of the code
provided he has been arrested or detained without warrant by an Officer I/C of
Police station or he appears or is brought before a court and he must be
prepared any time whine in the custody or at any stage of the proceeding
before a court.

However the following are the provisions of getting Bail under Cr.P.C.
Offences can be classified into two classes on the basis of bail:-

i) Bailable offences: – Bailable offences are of general nature and in

these offences it is right of accused to be released on bail. Sec.436 of Cr.P.C.
pertains to Bailable offences.

ii) ii) Non-Bailable offences: – These offences are of severe nature

and bail cannot be claimed as right in them. In such cases bail depends upon
the discretion of the court. Sec. 437 relates to Non-bailable offences.

1. Grant of Bail in Non-bailable offences: – Sec. 437 provides that when any
person accused of or suspected of commission of any non bailable offence is
arrested or detained without warrant by an Officer I/C of a Police station or
appears or is brought before a court other than the High Court or court of
Session he may be released on bail. Thus section 437 empowered a
Magistrate to take bail in non bailable offences. The provision of this makes it
clear that bail in non bailable offences depends upon the discretion of the
court.
i) When bail shall be granted: – sec.437 (1) lays down two situation
in which bail shall not be granted by magistrate:1) reasonable grounds for
believing that he has been guilty of offence punishable with death or
imprisonment for life. 2. When offence is cognizable and he had been
convicted with death, imprisonment for life or imprisonment for 7 years or
more or he has been convicted on two or more occasion.

ii) There are exceptions to receive bail:- this section also provided
with few exceptions where magistrate can receive bail in following cases:-

a) Where the accused is under the age of 16 years.

b) If she is a woman.

c) Sick or infirm

Thus in the above cases the bail application can be accepted even though the
accused in guilty of offence punishable with death or imprisonment for life or
has been convicted earlier. Case Venkataramanappa v/s State of Karnatka-
1992.

Conditions for Bail:- Under sec. 437(3) that where a person accused or
suspected of the commission of an offence punishable with imprisonment
which may extend to 7 years or more or for an offence, abetment of or
conspiracy or attempt to commit any such offence is released on bail, the
court may impose any condition which the court considers necessary, as in
the case of Gurbaksh Singh v/s State of Punjab-1980:-

· In order to ensure that such person shall attend in accordance with

the conditions of the bond executed under this chapter.

· That such person shall not commit an offence similar to an offence

of which he is accused or suspected.

· That otherwise in the interest of Justice.

Can a person get order to be released on Bail without judicial or Police

custody:-

Where any person has reason to believe that he may be arrested on

accusation of having committed a non-bailable offence he may apply to the
High Court or the Court of Session for a direction under sec. 438 that in the
event of such arrest he shall be released on bail.

*It was held in Adri Dharam dass v/s State of W.B-2005; it was held that it is
exercised in case of an anticipated accusation of non-bailable offence. The
object of this section is that the moment a person is arrested if he has already
obtained an order from High court of Court of Session he shall be released
immediately on bail without being sent to jail.
*It was also held in Vaman Narain Ghiya v/s State of Rajasthan-2009,
direction u/s 438 that the applicant shall be released on bail whenever
arrested for whichever offence whatsoever such a blanket order should not be
passed.

It was further observed that direction under sec.438 is to be issued at pre-

arrest stage, with some conditions:-

i) That the person shall make himself available for interrogation by a Police
officer as and when required. ii) The person shall not directly or indirectly
make any inducement, threat or promise to any person acquainted with the
facts of the case. iii) That the person shall not leave India without the previous
permission of the court. iv) If such person is thereafter arrested without
warrant by Police on such accusation and is prepared either at the time of
arrest or at any time while in the custody of police station to give bail, he shall
be released on bail.

Question 14:-Discuss the provisions relating to revision to criminal

cases. Can High Court exercising revision powers?

INTRODUCTION: – Revision is also a judicial remedy which has been

mentioned in sec.397 of the code. The main object of revision is to examine
the purity, validity, relevancy or regulation or any order, finding or sentence.
This section gives powers to High Court and the Session Judge to call for and
examine the record of any proceeding before any inferior Criminal Court
within its or his local jurisdiction. The followings are the provisions regarding
when the revision shall be done:-

1. Calling for records to exercise powers of revision: – The High court or the
Session Judge may call for and examine the record of any proceeding before
any inferior criminal court of his jurisdiction for the purpose of satisfying as to
the correctness, legality or propriety of any finding, sentence or order
recorded or passed, u/s 397 of the code. Case Johar & Others v/s Mangal
Prasad and another-2008, it was held that trial court is not found to be passed
without considering relevant evidence or by considering irrelevant evidence.

In a case of Badri Lal v/s State of M.P.-1989: The powers under this section
are undoubtedly wide and the Session Judge can take up the matter suo
motu, it must be seen that the criminal law is not used as an instrument of
private vengeance.

Kuldeep Singh v/s State of M.P.-1989: It was held that the order framing
charge could not be lightly interfered with in revision.

In vinod kumar v/s Mohawati-1990: That the court of Session has similar
powers as of High Court in revision and as the High Court is authorized to
take additional evidence in revision.

In Gram Sabha Lakhanpur v/s Ram Dev-1993:- It was held that the
complainant may or may not have a legal right of being heard but the rule of
prudence and natural justice requires that the aggrieved party must be
afforded an opportunity of hearing.

In a case of Mahavir singh v/s Emperor-1944: The regularity of any

proceedings of such inferior court where the finding sentence or order is
illegal or improper and where the proceedings are irregular.

Case of T.B.Hariparsad v/s State-1977, it was held that the powers of revision
cannot be used through interlocutory orders passed in any appeal inquiry, trial
or other proceedings under sec. 397(2).

In a case of Paul George v/s State-2002, it was held that during the hearing of
Revision argue the person applying for revision should be considered
seriously even though if they are too brief.

2. Order of Inquiry:- Sec. 398 of the code provides powers of issuing order
of inquiry to High Court or court of Session. Accordingly on examining any
record under sec.397 or otherwise the High Court or Session Judge may
direct CJM by himself or by any of Magistrate subordinate to him to make
inquiry of any complaint which has been dismissed under sec.203 or the case
of any person accused of an offence who has been discharged.

3. Powers of Revision of Court of Session: – Sec.399 provides powers of

revision to court of session in the case of any proceeding the record of which
has been called for by himself. The session judge may exercise all or any of
the powers which may he exercised by the High Court.

Where an application for revision is made by or on behalf of any person

before the session judge the decision of the session judge shall be final and
no further proceedings by way of revision a the instance of such person shall
be entertained by the High Court or any other court. These powers of revision
have been provided to the Addl. Session Judge under sec.400.

4. Powers of Revision of High Court: – Sec.401 of the code provides powers

of revision to High Court that in case of any proceeding the record of which
has been called by itself or which otherwise comes to its knowledge, the High
Court may exercise any of the powers conferred on a court of appeal by sec.
386, 389, 390 and 391 or on court of session by sec. 307. Thus during
revision High Court shall be able to exercise all powers which an appellate
court can do. In case of Vimal Singh v/s Khuman Singh-1998: Supreme Court
restricted the area of revision generally the order of acquittal is not interfered.
Powers of revision can be exercised in following situations:-i)Where severe
illegality has occurred by trial court.

ii) Where the order of trial court has failed to provide justice.

iii) Where the trial court has tried a case which fall beyond its jurisdiction.

iv) Where the trial court has stopped taking evidence unlawfully.
Here it is pertinent to mention that any party has applied for revision believing
that no appeal lies there but an appeal lies there then the court shall consider
such application for appeal in the interest of justice u/s 401(2). The order of
acquittal cannot be reversed into an order of conviction in revision as held in
case of Singher Singh v/s State of Haryana-2004, u/s 401(3).

5. Power of High Court to withdraw or transfer revision cases:-whenever one

or more persons convicted at the same trial makes an application to High
Court for revision. The High Court shall direct that the applications for revision
made to it be transferred to the Session Judge who will deal with the same as
if it were an application made before him, under sec. 402 of this code.

6.Copy of the order to be send to lower court:- Sec. 405 of the code provides
that where any case is revised by High Court or court of session, it or he shall
in the manner provided by sec.388, certify its decision or order to the court of
by which the finding, sentence or order revised was recorded or passed and
the court to which decision or order is so certified shall thereupon make such
orders as are confirmable to the decision so certified and if necessary record
shall be amended in accordance there with.

Question 15.Discuss the provisions of Judgment. Can court alter its own
Judgment?

INTRODUCTION: – It must contain the judgment comes out from every trial in
any criminal court of its original jurisdiction which is to be pronounced in open
court by the presiding officer immediately after the termination of the trial.
Judgment can be delivered in whole or the operative part of the judgment and
explaining the substance of the judgment in a language which is understood
by the accused. The provisions however are as under:-

1. Contents of Judgement:- Section 353 of cr.P.C-1973 provides that the

judgement in every trial in any criminal shall be pronounced in the open court
by the presiding officer just after the completion of the trail or at some
subsequent time which notice shall be given to the parties or their advocates.
It can be delivered as a whole of the judgement or can by reading out the of
judgement. If may also be byreading the operative part of the judgement in
such language which easily be understood by the accused or his advocate.

a)Each and every page of judgment when it is made should be singed,

mentioning the date of delivery of the judgment in open court.

b) No judgment which is delivered by any criminal court shall be deemed to be

invalid by reason only of the absence of any party or his advocate on the day
or place notified for the delivery of the judgment.

c) As soon as the judgment is pronounced a copy of the same immediately be

made available for the perusal of the parties free of cost.
d)If the accused is in the custody he shall be brought up to hear the judgment
pronounced. And if the accused is not in custody he shall be required by the
court to attend to hear the judgement pronounced.

e) Where there are more accused than one and one or more of them do not
attend the court on date on which the judgement is pronounced. Presiding
officer to avoid delay in the disposal of the case pronounce the judgement
even their absence.

2.Language & contents of Judgement: – According to sec.354 the judgement

should be written in language of court which contains points for determination,
the decision thereon and the reasons for the decision. If it be a judgement of
acquittal, shall state the offence of which accused is acquittal and direct that
he be set at liberty. Sec.354(3) when all the murderers are to be sentenced
with death sentence will become a dead law as held in a case of Muniappan
v/s State of Tami Nadu-1981.

3 Order for notifying address of previously convicted offender: – When any

person having been convicted by a court in India of an offence punishable
which relates to criminal intimidation with imprisonment for a term of three
years or upwards is again convicted of any offence punishable Court may
order that his residence and any change of such residence after release be
notified. Such rules may provide for punishment for the breach thereof, under
sec.356.

4.Order to pay compensation: – When a court imposes a sentence of fine or a

sentence including sentence of death of which fine forms a part the court may
at the time of passing judgement the whole or any part of fine recovered to be
applied. In the payment to any person of compensation for any loss or injury
caused by the offence when compensation is in the opinion of the court
recoverable by such person in a civil court. At the time of awarding
compensation in any civil suit relating to the same matter the court shall take
into account any sum paid or recovered ass compensation on the provisions
laid down in this sec.357, in case of Mangilal v/s State of MP-2004. In Sube
singh v/s State of Haryana-2006, is a fit case to award compensation.

5. Special Reasons to be recorded in certain cases:- As per provisions laid

down in sec.361 of cr.P.C.,where in any case the court could have deal with
an accused person under sec.360 under the provisions of probation of
offenders Act or a young offender under children act or any other law for the
time being in force for the treatment, training or rehabilitation of young
offenders has not done so. It must be recorded in judgement giving special
reasons for having not done so, as held in a case of State of Himachal
Predesh v/s Lat Singh-1990.

6. Court not to alter judgement:- Provisions lays in the sec. 362 or by any
other law for the time being in force, no court when it has signed the
judgement or final order disposing of a case shall alter or review the same
except to correct clerical or arithmetical error. In case of Naresh & others v/s
State of U.P.-1981.
7. Copy of the Judgement to be given to the accused & other persons:-When
the accused is sentenced to imprisonment a copy of the judgement shall
immediately after the pronouncement of the judgement be given to him free of
cost. In case of Ladli Prasad Zutshi v/s State of Allahbad-1931, it was held
that even public has a right to obtain a copy of the judgement of any criminal
court. This has been provided in sec. 363 of Cr.P.C.-1973.

8. Judgement when to be translated: – As per instructions u/s 364 it is said

that the original judgement shall be filed with the record of the proceedings
and where the original is recorded in a language different from that of the
court and the accused so requires a translation thereof into the language of
the court shall be added to such record.

9. Court of Session to send copy of finding and sentence to District

Magistrate:- The cases tried by the court of Session or a CJM the court or
such Magistrate shall forward a copy of its or his finding and sentence if any
to the District Magistrate within whose local jurisdiction the trial was held as
provided in sec. 365 of Cr.P.C.-1973.

Question16: Analyse the provisions of grant of Anticipatory bail. Can

anticipatory bail be allowed in Murder case? If so when?

INTRODUCTION: – Anticipatory bail has an important place in the series of

Bail. Its main object is to protect the innocent persons from arrest under sec.
438 of the criminal procedure code-1973 lays down the provisions regarding
grant of anticipatory bail.

What is Anticipatory Bail: – In-spite of the fact that the Cr.P.C., has not
defined Anticipatory Bail but it means that when a person has a reason to
believe that he may be arrested on accusation of having committed a non-
bailable offence, he may apply to High Court or to the court of Session that in
the event of such arrest he shall be released on bail at that time it is
anticipatory bail. It is also called Apprehension Bail on the basis of provisions
laid down in sec. 438 of cr.P.C.

Object of the Anticipatory Bail:- The object of Anticipatory bail is to protect

a person from arrest. A person against whom a warrant of arrest has been
issued shall first be arrested kept in custody for few days and then released
on bail, it means where there is no purpose for the arrest he shall not be
arrested.

When anticipatory Bail would be Accepted:- Section 438(1) says that,

“when any person has reason to believe that he may be arrested on an
accusation of having committed a non-bailable offence, he may apply to the
High Court or court of Session for a direction under this sec.438(1) and court
if thinks it fit, can direct that in event of such arrest he shall be released on
bail.” Case of Gurbaksh Singh v/s State of Punjab-1980, he was not granted
anticipatory bail merely on fear of arrest. In a similar case of Ashok kumar v/s
State of Rajasthan-1980, that anticipatory bail should not accepted until there
is a definite fear of arrest and such fact has come before the court.

It is pertinent to mention here that reason to believe does not mean mere fear,
i.e. mere ‘fear’ is not sufficient cause. Grounds on which belief is based must
be capable of being examined.

Who shall accept the Anticipatory Bail:- Sec. 438 (1) that the following
authorities may accept the anticipator bail application:

i. High Court ii. Court of Session

That any accused of an offence and in custody be released on bail on

acceptance of bail application in the above said courts u/s 439 of Cr.P.C.

Conditions of Grant Anticipatory Bail:-Court can impose reasonable conditions

for grant of anticipatory bail. Those conditions have been mentioned in section
438(2). When the High Court or Court of Session make a direction with some
conditions in the light of the facts of the particular case as it may think fit for
bail:-

a. That the person shall not leave India without previous permission of the
court.

b. That person directly or indirectly make an inducement threat or promise to

any person acquainted with the facts of the case so as to dissuade him from
disclosing such facts to the court or to any police Officer.

c. That the person shall make himself available for interrogation by a police
officer as and when required.

d. That any such other condition as may be imposed under sec.437 if the bail
is granted under this section.

ANTICIPATORY BAIL IN MURDER CASE: – There is no set principle fixed

for grant of anticipatory bail. It is basically depends upon the facts and
circumstances of every case and the nature of the case. Generally the
anticipatory bail is not to be granted in the matters like murder, unnatural
death, dourly death.

A case of Samunder Singh v/s State of Rajasthan -1987, the court held that
the anticipatory bail cannot be accepted in dowry death cases especially
where father-in-law and mother-in-law caused unnatural death of the
daughter-in-law.

Similarly refusing to grant of anticipatory bail in the matters of atrocities to

schedule tribe and schedule caste was held to be constitutional in a case of
State v/s Ram kishore Batolia-1995.
Anticipatory bail has also been refused in the matters of FERA, a case of
Dukhishyam Venupanni v/s Arun Kumar Bajoria-1998.

Even the facts mentioned above the anticipatory bail can be granted in
Murder cases on the basis of following circumstances:-

i) When there is no apprehension about the absconding of the accused.

ii) When there is no apprehension of inducing or enticing witnesses by the

accused.

iii) When there is no apprehension of the accused for moving abroad.

iv) Where the offence is not the severe or deadly nature.

HEARING OF PROSECUTION
The prosecution must be provided an opportunity of hearing while considering
the anticipatory bail as held in the case of State of Assam v/s
R.K.Krishankumar-1998.

Question: Expalin and distinguish between the following—

(i) complaint and F.I.R. (ii) Cognizable and Non-Cognizable (iii) Bailable and
Non-bailable (iv) Compoundabel and Non-compoundable (v) Enquiry and Trial

Ans: The main point of difference between a first information report and a
police complaint is that an FIR relates to a cognizable offense whereas a
police complaint can be filed for both cognizable and non-cognizable class
Aof offenses. Though FIR is similar to a complaint, there are differences in
terms of offenses they deal with, punishments, legal consequences,
evidentiary value, etc. Further, the FIR is required to be lodged at the police
station nearby the place of commission of the crime, while the complaint can
be filed with a metropolitan magistrate or equivalent court as well, with a view
to requesting action on it.

According to Section 2(d) of the Code of Criminal Procedure, 1973, a

complaint is an allegation that some person has committed an offense.
Further, a complainant and a first informant need not be the same person.
Indian criminal laws do not provide any strict form for a complaint, and thus an
affidavit or a petition may also amount to a complaint in the court of law.
Whereas the FIR is usually in a pre-defined format.

When an informant approaches the police authorities to inform about the

commission of a cognizable offense it is called filing a complaint. This
information in the form of a complaint, when registered, in accordance with
154 of the Code of Criminal Procedure, 1973, becomes an FIR. In a way,
therefore, the complaint is a stage prior to the FIR.
A Magistrate can take cognizance of a complaint according to Section 190 of
the Code of Criminal Procedure, 1973. When a Magistrate takes cognizance
of an offense (upon receipt of a complaint or otherwise), he examines the
complainant in accordance with Section 200 by examining the facts and the
witnesses. If he finds that the complaint is with merits, the case is deemed
committed for trial and the magistrate issues either the summons or the
warrant under Section 204. If the offense is exclusively triable by the Court of
Session, the Magistrate commits the case to Court of Session under Section
209.

In the case of an FIR, the offense involved is of cognizable nature and thus
the police have authority to initiate the investigation in the said case without
prior permission from the Magistrate and then file a charge sheet. On the
other hand, when a Magistrate takes cognizance of an offense on the basis of
a complaint, he orders an investigation in the matter and can also direct the
police to lodge an FIR if he feels that the offense is of a serious nature. He
can act upon the complaint only if it reveals a prima facie commission of an
offense.

The Court, in the matter of P. Kunhumuhammed vs. the State of Kerala, held
that:

“The report of a police officer following an investigation contrary to S. 155(2)

[3] could be treated as complaint under S. 2(d) and S. 190(1)(a) if at the
commencement of the investigation the police officer is led to believe that the
case involved the commission of a cognizable offence or if there is a doubt
about it and investigation establishes only commission of a non- cognizable
offence”.

In the case of the FIR, the police is authorised to investigate the matter and
then search and seize the evidence they find. The police then proceeds to file
a charge sheet against the accused in the Court u/s 173 of the Code of
Criminal Procedure, 1973 at the end of in the investigation. The court then
decides upon the charges.

The Officer in charge of a police station, may on receipt of a complaint by an

informant that reveals a non-cognizable offence committed within the limits of
its jurisdiction, enter the substance of the case in the station diary and refer
the informant to approach the concerned Magistrate on whose order only can
the police investigate such cases with the same powers as exercised in a
cognizable case, except the power to arrest without warrant. Where a case
relates to two or more offences of which one is cognizable, then the case will
be considered to be a cognizable offence, notwithstanding the fact that other
offences are non-cognizable.
Question 17: Difference between Acquittal and Discharge
Ans: Difference between a discharge and acquittal
Discharge can be done before the charges are framed whereas
Acquittal can be done only when the trial concludes.

SESSION TRIAL

DISCHARGE: As per Section 227, if, upon consideration of the record

of the case and the documents submitted therewith, and after hearing
the submissions of the accused and the prosecution in this behalf, the
Judge considers that there is not sufficient ground for proceeding
against the accused, he shall discharge the accused and record his
reasons for so doing.

ACQUITTAL: If after evaluating the evidence given by the prosecution,

the judge considers that there is no evidence that the accused has
committed the offence, the judge acquits the Accused person under
Section 232.
However, if the offender is not acquitted under Section 232, he is
permitted to give his defence and evidence. After hearing the
arguments of both the parties, the court may acquit of convict the
person under Section 233.

TRIAL OF WARRANT CASES BY MAGISTRATE

DISCHARGE: As per Section 239, if, upon considering the POLICE

REPORT and the documents sent with it under section 173 and making
such examination, if any, of the accused as the Magistrate thinks
necessary and after giving the prosecution and the accused an
opportunity of being heard, the Magistrate considers the charge
against the accused to be groundless, he shall discharge the accused,
and record his reasons for so doing.
ACQUITTAL: As per Section 248, if, in any case under this Chapter in
which a charge has been framed, the Magistrate finds the accused not
guilty, he shall record an order of acquittal.

Discharge does not mean that the accused has not committed the
offence, It just means that there is not enough evidence to proceed
with the trial. Most importantly, If any evidence is gathered later on,
the accused may be tried again.
Acquittal means that the accused has been held innocent and the
accused cannot be tried again for the same offence once he has been
acquitted.

Acquittal Discharge

A person who has been

acquitted cannot be arrested A discharged person can be
for the same case in which he rearrested and committed for a
has been acquitted by the further enquiry.
Court.
When a Magistrate proceeds with
An acquittal may also result
less serious offence, it amounts to
from absence of the
a discharge of graver charge and
complainant, or withdrawal or a
the accused can be directed to be
compounding of offence.
committed.
An order of discharge simply
implies that there is no prima
An order of acquittal is a
facie evidence against the
judicial decision taken after full
accused to justify further enquiry
inquiry establishing the
in relation to the charge; such
innocence of accused.
order does not establish anything
regarding the guilt of the accused.
An acquittal bars second trial
on the same facts and for the
same offence, or on the same
facts for any other offence for
which different charges from
the one made against the
accused might have been made
under Section 221(1) of CrPC.

Q. Describe the constitution, functions and powers of various courts

according to the criminal procedure code. Who can pass sentence of
death?
Ans: Besides the High Court and the courts constituted under any law other
than the Code of Criminal Procedure, there are four classes of Criminal
Courts in India, namely : (I) Courts of Session, (2) Judicial Magistrate of
the First Class, and in any metropolitan area, Metropolitan Magistrates,
(3) Judicial Magistrate of the Second Class : and (4) Executive
Magistrate (Section 6).

Under the Constitution the Supreme Court has also been vested with certain
Criminal powers. Article 134 confers appellate jurisdiction on the Supreme
Court in regard to criminal matters and an appeal lies to it from a judgment in
a criminal proceeding of a High Court if the High Court : (i) has on appeal
reversed an order of acquittal of an accused person and sentenced him to
death; (ii) has withdrawn for trial before itself any case from any subordinate
court and has thereafter convicted and sentenced the accused person to
death; or (iii) certifies that the case is a fit one for appeal to the Supreme
Court.

Hierarchy of criminal courts as per CrPc

Court of Session: Section 9 of the CrPc talks about the establishment of the
Sessions Court. The State Government establishes the Sessions Court which
has to be presided by a Judge appointed by the High Court. The High Court
appoints Additional as well as Assistant Sessions Judges. The Court of
Sessions ordinarily sits at such place or places as ordered by the High Court.
But in any particular case, if the Court of Session is of the opinion that it will
have to cater to the convenience of the parties and witnesses, it shall preside
its sittings at any other place, after the consent of the prosecution and the
accused. According to section 10 of the CrPC, the assistant sessions judges
are answerable to the sessions judge.

The Additional/ Assistant Sessions Judge- These are appointed by the High
Court of a particular state. They are responsible for cases relating to murders,
theft, dacoity, pick-pocketing and other such cases in case of absence of the
Sessions Judge.

Courts of Judicial Magistrates: Section 11 of CRPC talks about

establishment of Courts of Judicial Magistrates. In every district (not being a
metropolitan area), there shall be established as many courts of Judicial
Magistrates of the first class and of the second class and at such places, as
the State Government may, after consultation with the High Court, by
notification, specify.

The State Government may, after consultation with the High Court establish,
for any local area, one or more special courts of Judicial Magistrate of the first
class or of the second class to try any particular case or particular class of
cases, and where any such special court is established, no other court of
Magistrate in the local area shall have jurisdiction to try any case or class of
cases for the trial of which such special court of judicial Magistrate has been
established.

The presiding officers of such courts shall be appointed by the High Court.
The High Court may, whenever it appears to be expedient or necessary,
confer the powers of a Judicial Magistrate of the first class or of the second
class on any member of the Judicial Service of the State, functioning as a
Judge in a civil court. [Section 11]

Chief Judicial Magistrates and Additional Chief Judicial Magistrates:

In every district (not being a metropolitan area) the High Court shall appoint
Judicial Magistrate of the first class to be Chief Judicial Magistrate.

The High Court may appoint any Judicial Magistrate of the first class to be an
Additional Chief Judicial Magistrate, and such Magistrate shall have all or any
of the powers of a Chief Judicial Magistrate under this Code or under any
other law for the time being in four as the High Court may direct.

The High Court may designate any Judicial Magistrate of the first class in any
sub-division as the Sub-divisional Judicial Magistrate and relieve him of the
responsibilities specified in this section, as occasion requires.

Subject to the general control of the Chief Judicial Magistrate, every Sub-
divisional Judicial Magistrate shall also have and exercise such powers of
supervision and control over the work of the Judicial Magistrate (other than
Additional Chief Judicial Magistrate) in the sub-division as the High Court
may, by general or special order, specify in this behalf. (Section 12).

Special Judicial Magistrate:

The High Court may, if requested by the Central Government so to do, confer
upon any person who holds or has held any post under the Government all or
any of the powers conferred or conferrable by or under this Code on a Judicial
Magistrate of the first class or of the second class, in respect to particular
cases or to particular classes of cases, in any local area, not being a
metropolitan area provided that no such power shall be conferred on a person
unless he possesses such qualification or experience in relation to legal
affairs as the High Court may by rules specify.

Such Magistrates shall be called Special Judicial Magistrates and shall be

appointed for such term, not exceeding one year at a time as the High Court
may, by general or special order, direct. The High Court may empower a
Special Judicial Magistrate to exercise the powers of a Metropolitan
Magistrate in relation to any metropolitan area outside his local jurisdiction
(Section 13).

Courts of Metropolitan Magistrate:

(1) In every metropolitan area, there shall be established as many Courts of
Metropolitan Magistrate, and at such places as the State Government, after
consultation with the High Court, by notification, specify.
The presiding officers of such Courts shall be appointed by he High Court.
The jurisdiction and powers of every Metropolitan Magistrate shall extend
throughout the metropolitan area. (Section 16)

Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate:

The High Court shall, in relation to every metropolitan area within its local
jurisdiction, appoint Metropolitan Magistrate to be the Chief Metropolitan
Magistrate for such metropolitan area. (Section 17).

Special Metropolitan Magistrate:

The High Court may if requested by the Central or State Government so to
do, confer upon any person who holds or has held any post under the
Government, all or any of the powers conferred or conferrable by or under this
Code on a Metropolitan Magistrate, in respect to particular cases or to
particular classes of cases, in any metropolitan area within its local
jurisdiction:

Provided that no such power shall be conferred on a person unless he

possesses such qualification or experience in relation to legal affairs as the
High Court may by rules specify. Such Magistrate shall be called Special
Metropolitan Magistrates and shall be appointed for such term, not exceeding
one year at a time, as the High Court may direct.

The High Court or the State Government, as the case may be, may empower
any Special Metropolitan Magistrate to exercise in any local area outside the
metropolitan area, the powers of a Judicial Magistrate of the first class
(Section 18).

Subordination of Metropolitan Magistrate:

The Chief Metropolitan Magistrate and every Additional Chief Metropolitan
Magistrate shall be subordinate to the Sessions Judge, and every other
Metropolitan Magistrate shall, subject to the general control of the Sessions
Judge, be subordinate to the Chief Metropolitan Magistrate (Section 19).

Executive Magistrate:
(1) In every district and in every metropolitan area, the State Government may
appoint as many persons as it thinks fit to be Executive Magistrates and shall
appoint one of them to be the District Magistrate.

The State Government may appoint any Executive Magistrate to be an

Additional District Magistrate and such Magistrate shall have such of the
powers of a District Magistrate under this Code or under any other law for the
time being in force as may be directed by the State Government (Section 20).

Special Executive Magistrates:

The State Government may appoint for such terms as it may think fit.
Executive Magistrates, to be known as Special Executive Magistrates, for
particular areas or for the performance of particular functions and confer on
such Special Executive Magistrates such of the powers as are conferrable
under this Code on Executive Magistrates, as it may deem fit. (Section 21).
The maximum sentences which may be passed by different Courts are noted
below:

Supreme Court:
It is the final Court of Appeal which can pass any sentence in accordance with
law.

High Court:
Any sentence authorized by law. [Section 28) (1)].

Sessions Judge and Additional Sessions Judge:

Any sentence authorized by law, but a sentence of death passed by them
shall be subject to confirmation by the High Court. [Section 28 (2)].

Assistant Sessions Judge:

Any sentence authorized by law, except a sentence of death or of
imprisonment for life or of imprisonment for a term exceeding ten years
[Section 28 (3)].

Chief Judicial Magistrate and Chief Metropolitan Magistrate:

Any sentence authorized by law except a sentence of death or of
imprisonment for life or of imprisonment for a term exceeding seven years.
[Section 29 (I)]

First Class Magistrate and Metropolitan Magistrate:

May pass a sentence of imprisonment for a term not exceeding three years,
or of fine not exceeding Rs. 10,000, or of both

Second class Magistrates:

May pass a sentence of imprisonment for a term not exceeding one year, or
of fine not exceeding Rs. 5,000, or of both

Q. Who can claim maintenance under section 125 of the code of criminal
procedure what will be consequence if a person does not obey the order.

Ans: INTRODUCTION As it is considered to be the sacred, fundamental and

natural duty of a Person to look after his wife, children and parents,
Section125 to section 128 of the code of criminal procedure (CRPC) gives
effect to this natural duty of Man and serve a special purpose to avoid
vagrancy. These provisions were enacted with an object of enabling
discarded Wives, helpless and deserted Children and destitute parents to
secure the Much needed Relief. Moreover, Section 125 is regarded as the
means of establishing social justice and to provide protection to Women and
Children which falls under the constitutional Mandate of Article 15 (3) of Indian
Constitution further reinforced by Article 39 of Indian constitution. So with
Changing times more and more people are fighting for their Rights and filing
cases under section 125 crpc for their right to Maintenance, hence many
difficulties which they face during their fight to acquire maintenance are
answered below to make their journey of acquiring maintenance from the one
having the liability of maintaining them.

The following persons can claim maintenance under 125 of CRPC

A. Wife of a person who is unable to maintain herself.

B. The legitimate or Illegitimate Minor Child of the person who is unable to

maintain itself.

C. The Legitimate or illegitimate child of a person who has attained majority

but due to the reason of any physical or mental abnormality or injury is unable
to maintain itself. The married daughters are excluded under this Clause.

D. The Father or Mother of the person who are unable to maintain

themselves.

Q. For every distinct offence of which any person is accused there shall
be a separate charge and every such charge shall be tried separately be
explain and give exception to this rule.

Ans: The charge is defined under Section 2(b) of the Code Of Criminal
Procedure, 1973. According to which, “charges means the head of the charge
when there are more than one charges”. To put it in a more straightforward
language, after the trial is initiated, the accused person is informed about the
allegations which have been raised against him and the provisions of the
Code under which he would be tried by the Court. The accusations put up
against the accused are thus known as ‘Charges’ in the legal language.

Joinder of Charges
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.

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 the Joinder
Of Charges.
The exceptions to Section 218

Exception 1
Three offences which are of the same kind, committed within a year may be
charged together: This section has been provided to avoid multiplicity of the
proceedings when the offences are of the same kind. It contains two
circumstances:

 According to Section 219(1), if a person has been accused of three

offences of the same kind then the person can be tried for all the
offences together if they have been committed within a span of twelve
months from the first to the last offence.

 Section 219(2) talks about the offences which are of the same kind,
also punishable with the same quantum of punishment.

Exception 2
 Offences which are committed in the course of the same transaction
and tried together. It consists of the following:

 If a person has committed a series of acts, which are so intrinsically

connected together that they form a single transaction, such series of
offences shall be charged and tried together. The word ‘transaction’
has not been defined under the Code

 In case of offences of Criminal breach of trust or dishonest

misappropriation of property and their companion offences of
falsification of accounts. Many a time, the offences of criminal breach
of trust or dishonest misappropriation of property are committed along
with the offence such as falsification of accounts etc., the latter offence
committed in order to fulfil the objective of the former offence. In such
cases, Section 220(2) enables the Courts to try such offences together.

 If a single act falls under within different and separate definitions of

offences, such different offences shall be tried together as mentioned
under Section 220(3). For e.g.: If a person X, wrongfully strikes a
person Y with a cane, then X can either be charged with and tried
separately of offences under Sections 352 and Sections 323 of the
Indian Penal Code or may be tried and convicted together.

 If the acts which form an offence, also constitute different offences

when separately taken and tried or taken in groups, such offences shall
be tried to be one in a single trial. For e.g.: If A commits the offence of
robbery on B, and while doing so he voluntarily causes hurt to B, then
A may be separately charged with, and convicted of the offences
mentioned under Sections 323, 392 and 394 of the Indian Penal Code.

Exception 3
Section 221 provides for the cases wherein there is some doubt related to the
circumstances and incidents which took place during the commission of the
offence. According to this section, if the accused has committed a series of
acts which lead to confusion regarding the facts should be proved, the
accused might be charged with any or all of such offences or charged for
alternative offences. In such cases, the accused is charged for one offence
and during the stage of evidence, if it is proved that he has committed a
different offence, he may be convicted for the same even though he was not
charged with the same.

Exception 4
Section 223 talks about the class of persons who can be tried jointly. This
section permits a joint trial of several persons under the specified
circumstances as there exists some nexus among the various offences
committed. The various classes shall not be treated as mutually exclusive and
could be combined together if necessary. According to this section, the
following classes of persons may be tried and charged together:

 The accused persons who have committed the same offence in the
course of the same transaction.

 The persons who have committed a particular offence and those who
have abetted the commission.

 The persons who are covered under the ambit of Section 219.

 The persons who in the same course of the transaction have

committed different offences.

 The persons who have committed offences such as theft, extortion,

cheating, or criminal misappropriation of the property along with the
persons who have received, retained, assisted in the disposal or
concealment of property, possession of which is illegal and has been
alleged to be illegal.

 The persons who have been accused of commission of offences under

Section 411 and section 414 of the Indian Penal Code or under those
sections in respect of stolen property, possession of which has already
been transferred by another offence.

 The persons who have been accused of any offence under Chapter XII
of the Indian Penal Code related to the counterfeit coins.

The accused persons whose cases have not been covered under any of the
classes of Section 223, cannot himself claim a joint trial. The proviso to this
Section puts a check on the discretionary power of the court.

The rules contained from Section 218 to Section 223 have been made for the
benefit of the accused. It is not required to treat the various classes of
sections as mutually exclusive. The Courts have been given the authority to
combine the provisions of more than two clauses. The joint trial of several
persons partly by applying one clause and by partly applying another clause
has also been authorised.

Power of court to order separate trial in cases wherein joinder of

charges or of offenders is permissible

 The general rule in case of charges is that there shall be a separate

charge for every distinct offence, which shall be tried separately. But,
Sections 219, 220, 221 and Section 223 carve out the exceptions to
this basic rule. In simpler words, a separate trial is a rule while a joint
trial is its exception.

 The provisions regarding the exceptions have only enabling nature,

and it is at the discretion of the Courts whether or not to apply them to
a particular case. In the case of Ranchhod Lal v. State of Madhya
Pradesh AIR 1965 SC 1248, it was held that it is at the discretion of the
court whether to apply Section 219, Section 220 and section 223 of the
Code Of Criminal Procedure, 1973 or resort to Section 218. The
accused has not been given this right to resort to joinder of charges.

 The question regarding the misjoinder of charges and joint trial for
distinct offences was answered by the Supreme Court in the case of
Union Of India v. Ajeet Singh (2013) 4 SCC 186. It was held by the
court that the principles underlying the provisions in the Code of
Criminal Procedure, 1973 only act as a guiding principle.

Conviction of an offence not charged when such offence is included in

the offence charged
According to Section 222, if the accused is charged with an offence consisting
of several particulars, some of which if combined and proved to form a minor
offence, then he may be convicted of such minor offence. Although the
meaning of the term ‘minor offence’ is not defined under the code, it means an
offence which has lesser punishment than the other offence of which the
accused has been charged.

Applicability of provisions related to joinder of charges in cases where

no charge has been formally made
It is not necessary in the summons cases to frame a formal charge. Mere
stating to the accused the particulars of the offences which he has been
charged with would suffice. In such cases, the question related to the
applicability of provisions of joinder of charges arises. Such a question has
not been expressly dealt with by the Code Of Criminal Procedure, 1973.

But, it has been established via a number of precedents like in the case of
Upendra Nath Biswas v. Emperor ILR (1913) 41 CaL 694, Indramani v.
Chanda Bewa 1956 Cri LJ 1218 that the provisions of joinder of cases are
equally applicable to the summons case also.

Withdrawal of remaining charges on conviction on one of several

charges
Section 224 of the Code Of Criminal Procedure, 1973 talks about the
withdrawal of remaining charges. It is applicable only in cases where the
accused has been convicted of one of several distinct charges before the
other charges have been tried.

Conclusion
The framing of charge is the most basic step of the process of initiation of a
trial in a criminal proceeding. Utmost care must be taken while the charges
are being framed as wrong framing may lead to denial of justice. Therefore,
one should abstain from wrongful framing and joinder of charges as such an
inefficiency would vitiate the very basic essence of a fair trial.

While framing the charges, the judge needs to take care of the fact that there
is an existence of a case prima facie and should give his reasons for
discharging the case in writing.

The sections which deal with different types of trials only mention that only the
duty of framing of charges has been vested upon the courts. The court may
alter/ add to any charge at any time before the judgment is pronounced.
Moreover, the provisions dealing with the joinder of charges are not strictly
applicable to the judges. There is an existence of discretion upon the judges
to either combine the charges or try each charge separately depending upon
the facts and circumstances of each case.

Q. Analyse the provisions about the grant of anticipatory bail can such a
bail be allowed in a murder case? If so when? Cite case laws.

Ans: Section 438 of the Code of Criminal Procedure empowers the High
Court and the Court of session to grant anticipatory bail, i.e., a direction to
release a person on bail issued even before the person is arrested. Section
438 of the Code of Criminal Procedure provides that:

(1) Where any person has reason to believe that he may be arrested on
accusation of having committed a non-bailable offence, he may apply to the
High Court or the Court of Sessions for a direction under this Section that in
the event of such arrest he shall be released on bail; and that Court may, after
taking into consideration, inter alia, the following factors, namely:

(i) The nature and gravity of the accusation;

(ii) The antecedents of the applicant including the fact as to whether he

has previously undergone imprisonment on conviction by a Court in
respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice; and

(iv) Where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested,
Either reject the application forthwith or issue an interim order for the grant of
anticipatory bail:

Provided that, where the High Court or, as the case may be, the Court of
Session, has not passed any interim order under this sub-section or has
rejected the application for grant of anticipatory bail, it shall be open to an
officer-in-charge of a police station to arrest, without warrant the applicant on
the basis of the accusation apprehended in such application.

(1-A) Where the Court grants an interim order under sub-section (1), it
shall forthwith cause a notice being not less than seven days notice,
together with a copy of such order to be served on the Public
Prosecutor and the Superintendent of Police, with a view to give the
Public Prosecutor a reasonable opportunity of being heard when the
application shall be finally heard by the Court.

(1-B) The presence of the applicant seeking anticipatory bail shall be

obligatory at the time of final hearing of the application and passing of
final order by the Court if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary in the
interest of justice.

(2) When the High Court or the Court of Sessions makes a direction under
sub-section (1), it may include such conditions in such direction in the light of
the facts of the particular case, as it may think fit, including:

(i) A condition that the person shall make himself available for
interrogation by a police officer as and when required;

(ii) A condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing such facts to the
Court or to any police officer;

(iii) A condition that the person shall not leave India without the
previous permission of the Court;

(iv) Such other condition as may be imposed under Section 437(3), as

if the bail were granted under that Section.

(3) If such person is thereafter arrested without warrant by an officer in charge

of a police station on such accusation, and is prepared either at the time of
arrest or at any time while in the custody of such officer to give bail, he shall
be released on bail, and if a Magistrate taking cognizance of such offence
decides that a warrant should be issued in the first instance against that
person, he shall issue a bailable warrant in conformity with the direction of the
court under sub-section (1).

The object of Section 438 of the Code is that a person anticipating arrest
under non-bailable offence is not obliged to go to jail till he is able to move the
Court for being released on bail, to relieve a person from unnecessary
apprehension or disgrace.

Section 438 of the Code contemplates an application for anticipatory bail has
to be filed either to High Court or to the Court of Session for a direction that in
the event of his arrest he shall be released on bail. This provision applies to
all non-bailable offences and is not confined to offences triable exclusively by
the Court of Session.

Section 438(2)(i) of the Cr. P.C. is very clear that while granting anticipatory
bail, the Court can lay down a condition that the accused shall make himself
available for interrogation by a police officer as and when required. The
purpose of such a provision is that anticipatory bail cannot be permitted to be
abused.

It is, therefore, implied that whenever the court imposes such a condition in its
order, and the accused called for interrogation or for certain investigation does
not appear before the investigating officer then it will be open for the State to
move the High Court for cancellation of bail.

Whereas ordinary bail is granted after arrest, anticipatory bail is granted in

anticipation of arrest and is effective at the very moment of arrest.

The anticipatory bail can be granted even after the criminal Court has taken
cognizance, and summons or warrant has been issued by the Court. The
anticipatory bail under Section 438 may be granted to government servants,
minors, women, old and infirm persons, handicapped persons, persons
having permanent disability, persons who are involved in pretty cases,
persons who are likely to be harassed in police custody. For other categories
of cases, the general law of bail is already provided in Section 439 of the
Code.

Granting anticipatory bail is an exceptional power and should be exercised

only in exceptional cases and not in general cases. Anticipatory bail has to be
granted in exceptional cases where it appears that a person might be falsely
implicated or a frivolous case might be launched against him, or there are
reasonable grounds for holding that a person accused of an offence is not
likely to abscond, or otherwise misuse his liberty while on bail that such power
is to be exercised. If a case for anticipatory bail is made out, it should not be
refused merely because the accused is required in police custody for
interrogation.

The operation of the order of anticipatory bail should not be limited in point of
time and if it is once granted must be held to be operative till the conclusion of
the trial, unless it is cancelled under Section 439 of the Code.

However, the Supreme Court has held that it is necessary that anticipatory
bail orders should be of a limited duration only and ordinarily on the expiry of
that duration or extended duration the Court granting anticipatory bail should
leave it to the regular Court to deal with the matter on the appreciation of
evidence placed before it after the investigation has made progress or the
charge-sheet is submitted.

The application for anticipatory bail must show that the applicant has reasons
to believe that he may be arrested for a non-bailable offence and grounds for
such belief must be capable of being examined by the Court objectively and
Section 438 of the Code cannot be invoked on the basis of vague and general
allegations.

The filing of a first information report is not a condition precedent to the

exercise of the power under Section 438 of the Code and anticipatory bail can
be granted so long as the applicant has not been arrested.

Status in life, affluence or otherwise, are hardly relevant consideration while

examining the request for granting anticipatory bail. Anticipatory bail to some
extent intrudes in the sphere of investigation of crime and the Court may be
cautious and circumspect in exercising such power.

Section 438 of the Code may be attracted, when an influential person is the
complainant against a weak person or in the case of political rivalry between
two persons if a case is instituted against a political rival. However, there must
be some indication that the allegations are false.

The power of granting bail under Section 438, Cr. P.C. is extraordinary and is
exercised only in exceptional cases. Where it appears that the person may be
falsely implicated or where there are reasonable grounds for holding that a
person accused of an offence is not likely to otherwise misuse his liberty. This
power being of important nature is exercisable by higher judicial forums.

It is exercised in case of an anticipated accusation of non-bailable offence.

The object of the Section 438, Cr.P.C. is that the moment a person is
arrested, if he has already obtained an order from the High Court or the Court
of Session, he shall be released immediately on bail without being sent to jail.

The accused was charged of criminal conspiracy to commit murder. He had

common grudge against deceased. The trial of the case had almost come to
an end and only few witnesses remained to be examined. Some of witnesses
to conspiracy had turned hostile.

The accused is politically influential and financially strong. He had capacity to

influence witnesses. Releasing accused when trial is at such precarious stage
would not be proper. Moreover, accused are residents of border districts and
possibility of their fleeing from judicial process cannot be ruled out. Accused
were held, not entitled to be released on bail.

The use of expression ‘reason to believe’ in Section 438 of the Code shows
that the belief that the applicant may be so arrested must be founded on
reasonable grounds. Mere ‘fear’ is not a ‘belief’.
‘Reason to believe’ obligates the existence of objective material for the
subjective satisfaction of the person apprehending in arrest. The objective
material must be capable of being examined by the Court.

Only then the Court, if satisfied, will grant relief under Section 438 of the
Code. To show the background of the case and the materials for the genuine
apprehension, the Court may insist for the affidavit to be filed by the petitioner,
if not at least through supporting affidavit by some person related to him, in
order to enable the Court to decide whether to grant the relief sought for or
not.

Section 438 is a procedural provision which is concerned with the personal

liberty of an individual who is entitled to plead, innocence, since he is not on
the date of application for exercise of power under Section 438 of the Code
convicted for the offence in respect of which he seeks bail.

The applicant must show that he has ‘reason to believe’ that he may be
arrested in a non-bailable offence. Use of the expression ‘reason to believe’
that he may be arrested in a non-bailable offence use of the expression
‘reason to believe’ shows that the applicant may be arrested must be founded
on reasonable grounds.

Mere ‘fear’ is not belief for which reason it is not enough for the applicant to
show that he has some sort of vague apprehension that someone is going to
make an accusation against him in pursuance of which he may be arrested.
Grounds on which the belief on the application is based that he may be
arrested in non-bailable offence must be capable of being examined.

If an application is made to the High Court or the Court of Session, it is for the
Court concerned to decide whether a case has been made out of for granting
the relief sought. The provisions cannot be invoked after arrest of the
accused.

As the power under Section 438 of the Code being rather of an unusual
nature, it is entrusted only to the higher echelons of judicial service, namely, a
Court of Session and the High Court.

Though Section 438 of the Code gives concurrent powers to High Court and
Court of Session, it is normally to be presumed that the Court of Session
would be first approached for the grant of anticipatory bail unless an adequate
case for not approaching the said Court has been made out.

It is not always necessary that the Session Judge should be approached first.
If the petition for anticipatory bail has been rejected by the Sessions Court,
the petitioner cannot approach the High Court asking for anticipatory bail on
the same ground.

However, the Division Bench of the Karnataka High Court held that a petition
under Section 438 of the Code is maintainable before the High Court even if a
similar application has been made and rejected by the Court of Session as, in
the hierarchy, Court of Session is subordinate to the High Court, a party who
makes an application under Section 438 of the Code before the Sessions
Court, could approach the High Court if his application has been rejected by
the Court of Session, but not vice versa.

Section 438 of the Code does not make any specific provision for issuing
notice to the public prosecutor and hearing the public prosecutor by the Court
before granting anticipatory bail. However, the Supreme Court decided that
notice should be issued to the public prosecutor or the Government Advocate
before granting final anticipatory bail.

It has been held that in order to avoid the possibility of the person hampering
investigation, the High Court or the Court of Sessions may impose such
conditions as it thinks fit while admitting him to anticipatory bail.

Anticipatory bail granted by the High Court can only be cancelled under
Section 439(2) of the Code. It has been held that when an anticipatory b.ail is
granted on giving full hearing to the public prosecutor and repeated attempts
to have it cancelled have failed, it cannot be cancelled unless fresh material
are placed and the conditions for cancellation of bail as provided under
Section 439(2) are fulfilled. Bail once granted should not be cancelled in a
mechanical manner.

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