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PREFACE
LL.B. Study Notes
302 Criminal Procedure Code
CONTENTS
302 Criminal Procedure Code
TOPIC Page
Module-3 Trial Procedure in Criminal Cases & its General Provisions. 108
Module-1 :
1) Constitution and powers of Criminal Courts and Police Officers & Provisions
relating to Maintenance of Wives, Children & Parents :
1.1) Definitions : Bailable and Non-bailable offenses, Cognizable and Non-
cognizable offenses, Investigation,
1.2) Constitution, Classes of Criminal Courts, Powers of superior officers of
police, Provisions relating to arrest of persons, Service of Summons
1.3) Provisions relating to attachment and forfeiture of property, Security for
keeping peace and good behavior
1.4) Order for maintenance of Wives, Children and Parents
1.4.1) Maintenance of divorced wives
1.4.2) Judicial Pronouncements
MODULE-1 QUESTIONS :
officers of police.
Discuss : Provisions relating to arrest of persons.
Write short notes : Power of Police to arrest without warrant. (Nov-2011, Nov-
2012, Dec-2015))
Explain : Power of police to arrest without warrant. (Nov-2014)
Discuss : Even in a cognizable offence, arrest is a discretionary power to be
exercised with caution.
Describe the procedure for issue and service of a Summons.
Discuss the provisions relating to attachment and forfeiture of property under the
Criminal Procedure Code (Dec-2015)
Write Short Note : Security for keeping peace and good behaviour (Nov-2012)
Explain in detail the provisions relating to taking security for keeping peace and good
behaviour stated in the Cr.P.C. (Oct-2013)
Prevention is better than cure" Keeping in view the statement, state the provisions
"regarding taking securities for maintenance of peace and good behaviour. (Nov-
2014, Apr-2016)
Write short note : Security for good behaviour from a habitual offender. (Nov-2014)
Discuss : Security for good behaviour from habitual offender. (Dec-2015)
Discuss : Powers of Court to release convict on Probation of good behaviour .
Discuss : Power of Court to variation condition on probation. (Nov-2011)
Discuss : Powers of Court to require, release offenders to pay compensation
and costs. (Nov-2011)
Discuss : Appointment of probation officer and his duties. (Nov-2011)
Discuss in detail the provisions of maintenance of wife, children and parents under
Code of Criminal Procedure. Can the amount of maintenance be altered
Subsequently ? (Nov-2012)
Discuss the provision of maintenance of wife, children and parents under the Criminal
Procedure Code, Can the amount of maintenance be canceled subsequently ?
(Dec-2015)
Discuss in detail the provisions relating to the maintenance of wife, children and
parents stated in the Cr.P.C. (Oct-2013)
Discuss in detail the provision of maintenance of wife, children and parents under
Cr.P.C. Can the amount of maintenance be canceled subsequently ? (Nov-2014)
Discuss in detail the provisions of maintenance of wife , children and parents
under Cr. P. Code. In which circumstances the amount of maintenance be cancel
subsequently ? (Apr-2016)
Explain : Child Welfare Committee, Formation, Powers and Proceedings. (Nov-2011)
Explain : Explain the matters pertaining to restitution and social reintegration of
MODULE-1 ANSWERS :
1. Framing of Charge
2. Recording plea of guilt
3. Recording of prosecution evidence
4. Statement of accused
5. Defence evidence
6. Final arguments
7. Judgment
Intro to CrPC 1973 :
The essential object of criminal law is to protect society against criminals and law-
breakers.
For this purpose, the law
holds out threats of punishments to prospective lawbreakers
as well as attempts to make the actual offenders suffer the prescribed the
punishment for their crimes.
Therefore, criminal law, in its wider sense, consists of both the substantive criminal
law as well as the procedural criminal law.
Substantive criminal law defines offences and prescribes punishments for the
same, while the procedural law is to administer the substantive law.
The Code of Criminal Procedure (CrPC ) is the main legislation on procedure for
administration of substantive criminal law in India.
It was enacted in 1973 and came into force on 1 April 1974.
Code of Criminal Procedure, 1973 provides the machinery for
prevention of crimes (Sections 106- 124, 129- 132 and 144- 153),
detection of crimes,
controls / regulations on investigation and trial of offences.
apprehension of suspected criminals,
collection of evidence,
determination of the guilt or innocence of the suspected person
imposition of suitable punishment on the guilty person.
maintenance of wives, children and parents (Sections 125- 128)
public nuisances (Sections 133- 143).
CrPC contains 484 Sections, 2 Schedules and 56 Forms. The Sections are
divided into 37 Chapters.
Classification of Offences :
1. Classification according to statutes :
According to Sec 26 of CrPC 1973, offences are divided into:
1. Offences under Indian Penal Code (IPC) (triable by Sessions Courts and
other courts as shown in the 1st Schedule to the CrPC)
2. Offences under any other law (empowers HC when no court is mentioned
for any offence under such law).
2. Classification according to trial procedure :
A. Summary case.
B. Summons case.
C. Warrant case, including trial by a court of session.
3. Other classifications : Depending on the nature and gravity of an offence, other
classifications are as follows :
A. Bailable and non-bailable offences.
B. Cognizable and non-cognizable offences.
C. Compoundable and non-compoundable offences.
Brief notes on above classifications :
1. Classification according to statutes :
<need no further elaboration>
2. Classification according to trial procedure :
The Rationale : Former Chief Justice of India P Shastri, observed in the
landmark judgment of The State Of West Bengal vs Anwar Ali Sarkar, that
the makers of the Criminal Procedure Code of India were alive to the
desirability of having a speedy trial in certain classes of cases,
and with this end in view they made four different sets of provisions for the
trial of four classes of cases.
Broadly speaking, their classification of the offences for the purpose of applying
these different sets of provisions was according to the gravity of the offences,
though in classifying the offences fit for summary trial the experience and
power of the trying Magistrate was also taken into consideration.
The net result of these provisions is that
offences which are summarily triable can be more speedily tried than
summons cases,
summons cases can be more speedily tried than warrant cases, and
warrant cases can be more speedily tried than sessions cases.
The framers of the Code appear to have been generally of the view that the
graver the offence the more elaborate should be the procedure for its trial
2A. Summary case :
The CrPC also provides that certain petty offences may be tried in a summary
way.
Police can start investigation without the order Police officer cannot investigate
of a magistrate. the case without the order of a
magistrate.
The victim and the offender may reach No compromise is allowed. Even
compromise with or without the court does not have the power to
permission of the court depending on the compound the offence.
offence.
case.
Ingredients of investigation :
Proceeding to the spot;
Ascertaining facts and circumstances;
Discovery and arrest of the suspected offender;
Collection of evidence relating to the commission of offence, which may consist
of the examination of various persons including the accused and taking of their
statements in writing and the search of places or seizure of things considered
necessary for the investigation and to be produced at the trial;
Formation of opinion as to whether on the basis of the material collected,
there is a case to place the accused before a magistrate for trial,
and if so, taking the necessary steps for filing the charge-sheet.
Investigation ends in a police report to the magistrate.
What happens if the police refuse to investigate an offence?
In such a case the person can proceed directly to file a complaint with the
Magistrate who may order the police to investigate the offence and file a police
report.
2. Inquiry : <detailed discussion in Module-2>
According to Sec-2(g) inquiry means
every inquiry, other than a trial, conducted under this Code by a Magistrate or
Court.
The stage preceding the trial is called inquiry. Actual trial starts only after the
charge has been framed.
"Inquiry" is a name given to a proceeding conducted under CrPC,
by a Magistrate or a Court
other than a trial
for ascertaining or verifying facts with a view to take some action under the
code.
Ambit of Inquiry is very wide and comprehensive and include proceedings under
Sections 340, 144, 145, 176, 446 of Cr.P.C.
Ingredients of Inquiry :
During an inquiry following important proceedings can be taken place :
Taking of Cognizance u/s 190
appearance or production of accused before the court
Complaint proceeding
Dismissal of complaint
Issue of process
understood to mean
a judicial proceeding where evidences are allowed to be proved or disproved,
and guilt of a person is adjudged leading to a acquittal or a conviction.
If in a proceeding the court has no power to convict or acquit, it is no `trial'.
Trial includes,
all steps which a criminal court adopts subsequent to the framing of charge
and until the pronouncement of judgement.
Under the CrPC, criminal trials have been categorized into three divisions each
having distinct procedures, called
A. Summary case, <detailed discussion in Module-3>,
B. Summons case, <detailed discussion in Module-3>, and
C. Warrant case, including
trial by a Magistrate, <detailed discussion in Module-3>, and
trial by a Sessions Judge, <detailed discussion in Module-3>.
Difference between Investigation and Inquiry : Investigation is the first stage of the
case and normally precedes inquiry by a Magistrate.
(1) An investigation is done by a police officer or by some person authorized by a
Magistrate but is never made by a Magistrate or a court.
An inquiry is a judicial proceeding made by a Magistrate or a court.
(2) The object of an investigation is to collect evidence for the prosecution of the
case,
while the object of an inquiry is to determine the truth or falsity of certain facts
with a view to taking further action thereon.
Difference between Inquiry and Trial : Both inquiry and trial are judicial proceedings,
but they differ in the following respects :
`Inquiry stops when trial begins, so all proceedings before Magistrate, before
framing the charge which do not result in conviction or acquittal can be termed as
`Inquiry'.
In a summon case, trial starts after the appearance of accused
In a warrant case, trial starts after the charge is drawn.
An enquiry does not necessarily mean an inquiry into an offence because, it may,
as well relate to matters which are not offences,
e.g., inquiry made in disputes as to immovable property with regard to
possession, public nuisances, or for the maintenance of wives and children.
A trial on the other hand, is always of an offence.
An inquiry never ends in conviction or acquittal; At the most, it may result in
discharge or commitment of the case to a court.
may acquit
else if it feels that prosecution have sufficiently discharged their burden then
court asks the defence to lead its evidence.
5. Defence evidence :
When the accused is not acquitted, a defence must be entered and evidence
adduced in its support.
For this purpose, the defence may examine its witnesses including the accused
himself.
The witnesses produced by the defence are cross-examined by the prosecution.
Most accused persons do not lead defence evidence in India.
One of the major reasons for this is that, in India,
the burden is cast on the prosecution to prove the offence and the degree of
proof required in a criminal trial is "proof beyond reasonable doubt".
This is quite a high standard that the prosecution must meet.
It is not enough for the prosecution to assert that the accused has committed the
offence. The judge must be convinced beyond reasonable doubt that it was in fact
the accused who committed the offence.
6. Final arguments :
This is the final stage of the trial. The provisions of the CrPC provide that,
when examination of the witnesses for the defence (if any) is complete,
the prosecutor shall sum up the prosecution case
and the accused is entitled to reply.
These are the final arguments.
https://www.lawfarm.in/blogs/jurisdiction-of-courts-with-respect-to-criminal-cases
http://vle.du.ac.in/mod/book/print.php?id=9193&chapterid=13295
https://en.wikipedia.org/wiki/Judiciary_of_India
EBook "Courts Police Authorities & Common Man" By Advocate Shri Sunil Goel -
https://www.scribd.com/doc/225592434/CrPC-Procedure
http://legalseccdose.blogspot.in/2015/01/hierarchy-of-criminal-courts-in-india.html
https://www.linkedin.com/pulse/hierarchy-courts-india-flow-diagram-ramanathan-
sivakumar
https://www.lawfinderlive.com/bts4/cripc.htm
Outline : Constitution and Classes of Criminal Courts :
Jurisdiction of Criminal Courts :
Types of jurisdiction :
Territorial jurisdiction
Subject jurisdiction
Appellate jurisdiction
Hierarchy / Classes of Criminal Courts :
Detailed notes on hierarchy of subordinate courts and their powers
(I) Courts of Session :
(II) Court of Metropolitan Magistrate :
(III) Court of Judicial Magistrate :
(IV) Courts of Executive Magistrates :
Sentencing powers of HCs and subordinate courts :
Intro :
To ensure that justice is served to the one whose right has been infringed,
the Constitution of India gave the judiciary system.
To ensure that the judiciary is working in an efficient manner, various courts
having different powers were established.
Jurisdiction of Criminal Courts :
Meaning of jurisdiction :
Legally, a person can be pronounced guilty by a court of competent jurisdiction.
Jurisdiction is the power of the Court to try a case, or entertain a matter.
The jurisdiction of criminal courts is governed by the Constitution of India, 1950
and procedural laws like the Cr.P.C.
Types of jurisdiction :
A. Territorial jurisdiction
B. Subject jurisdiction
C. Appellate jurisdiction
A. Territorial jurisdiction :
Criminal courts function within the territorial divisions that are assigned to them.
Cr.P.C., Chapter XIII (sections 177-189) deals with "Jurisdiction of the Criminal
Courts in Inquiries and Trials").
Sec-177 : Ordinarily, an offence is tried by a court within whose local
jurisdiction it was committed.
However, if an offence is committed within the jurisdiction of more than one
court (for example, a rape or a murder committed in a moving vehicle) it may be
tried by any court in whose jurisdiction the offence or a part of it was
committed.
Sec-178-184 of the Cr.P.C provides for such alternative venues of trial in the
interests of justice.
Geographical Divisions : Districts and Metropolitan Areas :
For the purpose of dispensation of justice in the cases of criminal nature,
each State is divided into certain divisions, which are commonly called the
Sessions divisions.
Sec-7 : Sessions Divisions :
Every State shall be a sessions division or shall consist of sessions divisions;
Each Sessions division comprises one district or more than one districts.
Every metropolitan area shall, for the said purposes, be a separate sessions
division and district.
Each District can be further sub-divided into sub-divisions, by the State
Government in consultation with the High Court.
The State Government in consultation with the High Court can also increase or
decrease the limits or the number of such sessions divisions, districts or sub-
divisions in the State.
Sec-8 : Metropolitan area :
The State Government may, by notification, declare that,
any area in the State comprising a city or town whose population
exceeds one million shall be a metropolitan area for the purposes of
this Code.
B. Subject jurisdiction :
Chapter III of Codes deal with power of different criminal courts.
Section 26 deals with the description of offences cognizable by several courts
constituted under the Code.
The First Schedule of the Cr.P.C. mentions the courts that have the jurisdiction
to try the offences under the IPC.
The High Court or Court of Sessions, being superior courts, can try any offence
under the IPC (Cr.P.C., section 26).
Serious offences, like murder, dacoity, rape etc. can be tried by a Court of
Sessions of the division where the offence was committed.
Theft and extortion are triable by any Magistrate.
Sec-26(a) :
Any offence of I.P.C. may be tried by
(i) High Court or
(ii) Court of Session or
(iii) any Judicial Magistrate,
by which such offence is shown in First Schedule , to be triable.
Sec-26(b) :
Any offence under any other law shall be tried by court as mentioned in that
law
and when no such court is so mentioned, then it will be tried by
(i) High Court or
(ii) Court by which such offence is shown in First Schedule to triable
Section 27 of Code then says about jurisdiction of court in case of Juveniles :
Any offence not punishable with death or life imprisonment
committed by a juvenile
may be tried by
the court of CJM
or any court specially empowered under Children Act 1960
or any other law providing for treatment, training and rehabilitation of
youthful offenders.
C. Appellate jurisdiction :
The party that feels aggrieved by the judgment of a subordinate court, can file
an appeal in a higher court.
This jurisdiction of the higher court to entertain the appeal is known as appellate
jurisdiction.
An appeal lies to the immediate superior court.
For example, if a case is tried by a Magistrate, then first appeal can be filed
in the Court of Sessions.
Likewise, the second and the third appeal can be filed, in appropriate cases,
in the High Court of the State and the Supreme Court respectively.
Appellate Jurisdiction of the Supreme Court :
In criminal cases, a person can file an appeal before the Supreme Court
Subordination : [Section 9]
The Assistant or Additional Session Judge appointed by the High Court will be
subordinate to their respective Sessions Judge who will distribute the work
among them.
Session Judge can make rules with respect to the additional and assistant
judges but they must be consistent with the Code.
Punishment : [Section 28]
A Sessions Judge and Additional Sessions Judge can pass any sentence that is
authorised by law,
but, in case of death sentence confirmation of High Court is required.
An Assistant Sessions Judge can pass any sentence excluding sentence of
death or imprisonment for life or for a term exceeding ten years.
Sec-9 :
(1)The State Government shall establish a Court of Session for every sessions
division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed
by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant
Sessions Judges to exercise jurisdiction in a Court of Session.
(4) The Sessions Judge of one Sessions division may be appointed by the High
Court to be also an Additional Sessions Judge of another division, and in
such case he may sit for the disposal of cases at such place or places in the
other division as the High Court may direct.
(II) Court of Metropolitan Magistrate :
Establishment : [Section 8]
Areas having population more than one million and notified by the State
Government are Metropolitan areas.
The area of Mumbai, Kolkata, Chennai and Ahmedabad are the areas that are
mentioned in the Code as Metropolitan Areas.
Sec-16 :
The State Government after consulting the High Court will establish as many
courts of Metropolitan Magistrates as it may deem fit in the Metropolitan
Area.
The High Court will appoint the presiding officer and the jurisdiction of the
officer will extend throughout the metropolitan area.
Sec-17 :
High Court will appoint a Metropolitan Magistrate as Chief Metropolitan
Magistrate (CMM) for a particular area.
High Court can also appoint any Metropolitan Magistrate as Additional Chief
Metropolitan Magistrate.
Subordination : [Section 19]
The CMM and every Additional CMM will be subordinate to the Sessions Judge.
Every other Metropolitan Magistrate will be subordinate to CMM and the extent
of the subordination will be defined by the High Court.
Further, the CMM can make rules consistent with the Code and can also
distribute the work among the Metropolitan Magistrate.
Triable Cases :
Sec-26 :
Court of Metropolitan Magistrate can try offence which has shown to be
triable by the Court of Metropolitan Magistrate in the First Schedule.
Punishment : [Section 29]
CMM may pass any sentence authorised by the law
except a sentence of death or of imprisonment for life or a term exceeding
seven years
A Metropolitan Magistrate can pass a sentence
for a term not exceeding three years or fine not exceeding five thousand
rupees or both.
Sec-16 :
In every metropolitan area, the courts of Metropolitan Magistrates (MM) are
established by the State Govt. after consultation with the High Court.
The presiding officers of such courts are appointed by the High Court.
Every metropolitan magistrate has the jurisdiction throughout the metropolitan
area.
Sec-17 : Chief Metropolitan Magistrate :
One of the Metropolitan Magistrate is appointed by the High Court as Chief
Metropolitan Magistrate (CMM) for the district.
The High Court can also appoint any Metropolitan Magistrate as Additional
Chief Metropolitan Magistrate (ACMM) who has all the powers of a CMM.
Sec-18 : Special Metropolitan Magistrates :
At the request of the Central Govt. or the State Govt.,
the High Court can appoint
Special Metropolitan Magistrates
for a term not exceeding one year,
to try particular class of cases in any metropolitan area.
Sec-19 : Subordination of Metropolitan Magistrates :
Court Sentences
Supreme Court or High Court Any sentence authorized by law
Sessions Judge or Additional Any sentence authorized by law - sentence of
Sessions Judge death is subject to confirmation by High Court.
Assistant Sessions Judge Imprisonment up to 10 years or/and fine
Chief Judicial Magistrate or Chief Imprisonment up to 7 years or/and fine.
Metropolitan Magistrate
Judicial Magistrate of Class I or Imprisonment up to 3 years or/and fine up to Rs.
Metropolitan Magistrate 10000.
Judicial Magistrate of Class II Imprisonment up to 1 year or/and fine up to Rs.
5000.
What is an offence?
ANSWER :
Refer :
http://hanumant.com/CrPC-Unit6-OffenceBail.html
Any act which is deemed as an offence by any law is an offence.
Generally, such act which cause violation of rights of others or cause harm to others
and is also harmful to the society at large
is designated as offence by the legislature through the acts of the parliament.
Definition : Sec-2(n) of CrPC defines an offence as follows -
"Offence" means any act or omission made punishable by any law for the time
being in force
and includes any act in respect of which a complaint may be made under Sec-20
of the Cattle-trespass Act, 1871.
Sec-39(2) :
An act committed outside India is also an offence if that act would be an offence if
committed in India.
It is important to note that an act is not offence unless it is clearly defined as an
offence by any piece of legislature.
Thus, to be an offence, the legislature must designate it to be an offence.
Several Acts and Legislations defines such acts which constitute offences. The main
among them is the Indian Penal Code. It defines acts ranging from theft and murder
to fraud and criminal breach of trust and makes them offences.
Examples of other acts which defines offences are Wildlife Protection Act,
Prevention of Corruption Act, Narcotic Drugs and Psychotropic Substances Act,
Environmental Protection Act.
All these Acts defines certain activities related to the focus of the Act as offences.
Some Acts such as Prevention of Corruption Act and Narcotic Drugs and
Psychotropic Substances Act also specify the mode of trial for the offences that
they define,
while some specify that trial for their offences will be held as per the provisions
of CrPC.
Bail is one such mechanism which is used to ensure the presence of an accused
whenever required by the court without violating his liberty until proven guilty.
Note : While releasing an accused on bail, he may also be required to provide a
surety or security. But it is not necessary. An accused may also be let off on his
own bond.
Term Bail has not been defined under CrPC, though bailable and non bailable
offence have been defined.
Term Bail is defined in the Law Lexicon as
security for the appearance of the accused person
on giving which, he is released pending trial or investigation.
Bail is an agreement in which accused & his surety makes a written undertaking to
the court that
the accused shall appear at the time and place designated and submit himself to
the jurisdiction and judgment of the court.
Moti Ram v State of M.P The Supreme Court has held that
bail covers both, (i) release on one's own bond, (ii) with or without sureties.
Who can apply for bail ?
An accused person who is in custody, because he or she has been charged with an
offence or is involved in pending criminal proceedings, may apply to be released on
Bail.
Who can grant bail ?
Two authorities that may grant bail are the police and the courts.
Implications of bail : In signing a bail agreement the accused & his surety BOTH
undertakes that
accused will be present every time the matter is in court until the proceedings are
finished,
accused will comply with any conditions set out in the agreement as to conduct
while on Bail, and
surety will forfeit a specified sum of money if the accused fails, without proper
excuse, to comply with any term or condition of the agreement.
Classification of offence : One of the classification of an offence is based on it being
bailable or non-bailable.
In general, a bailable offence is an offence of relatively less severity and for which
the accused has a RIGHT to be released on bail.
While a non-bailable offence is a serious offence and for it, the accused cannot
demand to be released on bail as a right.
Definition : Sec-2(a) :
"bailable offence" means
Refer :
http://hanumant.com/CrPC-Unit2-Arrest.html
http://hanumant.com/CrPC-Unit2-Warrant.html
http://www.lawyersclubindia.com/articles/Arrest-of-an-Accused-Not-a-must-in-
every-Cognisable-Case-8172.asp?
utm_source=newsletter&utm_content=news&utm_medium=email&utm_campaign
=nl_May
Outline of the discussion :
Intro : Need to ensure presence of a person before the court.
Sec-204 : Issue of process
Sec-87 : Issue of warrant in lieu of, or in addition to, summons -
What is arrest ?
Arrest with warrant.
What is warrant of arrest? [Sec-70, 71]
Procedure for issue of warrant of arrest. [Sec-204, Sec-87]
Procedure for execution of warrant of arrest. [Sec-75-79]
Issue of warrant by a court which is only empowered to issue summons [Sec-87]
Issue of summons instead of a warrant. [Sec-204]
Warrant for recovery of fine amount. [Sec-421]
Arrest without warrant.
Arrest by police officer. Sec-41, 42
Arrest by private citizen. Sec-43
What after arrest by a police officer ? [Sec-50A]
Arrest by a Magistrate. Sec-44
Arrest how made. Sec-46
Rights of arrested person.
Consequences of non-compliance with the provisions relating to arrest.
Intro : Need to ensure presence of a person before the court :
To meet the ends of justice, it is critical to produce accused, witnesses or related
parties before the court whenever needed.
If the accused is found guilty at the conclusion of the trial, he must be present in
person to receive the sentence.
Also, his presence is necessary if imprisonment is to be enforced.
Further, the supremacy of the law will be questionable if there is no formal process
to bring the required persons before the court.
For this reason, Chapter VI (Sections 61 to 90) of CrPC provides two ways for
Sect-75 :
A warrant can be executed by showing the substance of the warrant to the
person being arrest.
If required, the warrant must be shown to the person arrested.
Sec-76 :
The person executing the warrant must produce the arrested person before
the magistrate without unnecessary delay and within 24 hours excluding the
time taken for travel from the place of arrest to the magistrate.
Sec-77 : A warrant may be executed anywhere in India.
Sec-78 : Issue of warrant to be executed o/s local jurisdiction :
If a warrant is to be executed outside the local jurisdiction of the court issuing
it,
such court may send it to the Executive Magistrate or District
Superintendent of Police or Commissioner of Police within the local limits of
whose jurisdiction it is to be executed.
Sec-79 : Procedure for executing a warrant o/s local jurisdiction of the court :
(1) When a warrant directed to a police officer is to be executed beyond the
local jurisdiction of the Court issuing the same,
he shall ordinarily take it for endorsement either to an Executive Magistrate
or to a police officer not below the rank of an officer in charge of a police
station, within the local limits of whose jurisdiction the warrant is to be
executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such
endorsement shall be sufficient authority to the police officer to whom the
warrant is directed to execute the same.
Also the local police shall, if so required, assist such officer in executing
such warrant.
(3) Whenever there is reason to believe that the delay occasioned by obtaining
the endorsement of the Magistrate or police officer within whose local
jurisdiction the warrant is to be executed will prevent such execution,
the police officer to whom it is directed may execute the same without such
endorsement in any place beyond the local jurisdiction of the Court which
issued it.
Issue of warrant by a court which is only empowered to issue summons :
Sec-87 : A court may issue a warrant even in a case in which it is empowered
only to issue a summons.
A court can issue a warrant either before issuing a summons or even after
issuing a summons.
It may do so if
it has reason to believe that the person has absconded or that the person
will not obey the summons.
the summons was duly served and still the person fails to appear before it
at the required date and time without any reasonable excuse.
The court must record its reasons for issuing warrant instead of summons.
Issue of a summons instead of a warrant :
Sec-204 : Court may issue a summons even for a warrants case if it believes
that a summons is sufficient to enforce the appearance of the person before it
In general, a warrant ought not to be issued where a summons can serve the
purpose and care should be exercised by the court to satisfy itself that upon the
materials present before it, it was necessary to issue a warrant.
Case : Anoop Singh vs Cheelu AIR 1957,
it was held that this applies to an accused as well as a witness.
But where the court has no power to issue a summons, it cannot issue a
warrant under this section.
Warrant for recovery of fine amount :
Sec-421 : Warrant for levy of fine :
(1) When an offender has been sentenced to pay a fine, the Court passing the
sentence may take action for the recovery of the fine in either or both of the
following,
(a) issue a warrant for the levy of the amount by attachment and sale of
any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorizing him to realize
the amount as arrears of land revenue from the movable or immovable
property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine,
the offender shall be imprisoned, and if such offender has undergone the
whole of such imprisonment in default, no Court shall issue such warrant
unless, for special reasons under Section 357.
Provided that no such warrant shall be executed by the arrest or detention in
prison of the offender.
Arrest without warrant :
There are situations when a person may be arrested by a police officer, a
magistrate or even private citizen without a warrant.
These are described in,
Section 41, 42 : Arrest by police
Section 43 : Arrest by private citizen,
Section 44 : Arrest by a Magistrate.
Sec-43(2) : If there is reason to believe that such person comes under the
provisions of section 41, a police officer shall re-arrest him.
Sec-43(3) :
This sub-section expressly prohibits private citizen from arresting such a
person who falls under the provision of Sec-42.
In other words,
EVEN IF a person has committed a non-cognizable offence,
he shall be dealt with ONLY by police under the provisions of section 42;
in case he refuses on the demand of a police officer to give his name and
residence.
What after arrest by a police officer ?
Sec-50A :
It is obligatory for the police officer or any other person making an arrest
to give the information regarding such arrest and place where the arrested
person is being held
to any of friends/ relative of the arrested person
inform the arrested person of his rights under subsection as soon as he is
brought to the police station.
make an entry of the fact as to who has been informed of the arrest of such
person in a book to be kept in the police station.
It is also the duty of the Magistrate before whom arrested person is produced,
to satisfy himself that all the requirements in respect of the arrestee has been
complied with.
Arrest by a Magistrate :
Sec-44(1) :
When any offence is committed in the presence of a Magistrate , whether
Executive or Judicial, within his local jurisdiction,
he may himself arrest or order any person to arrest the offender,
and may thereupon commit the offender to custody or release him on bail.
Sec-44(2) :
Any Magistrate, whether Executive or Judicial, may at any time arrest or direct
the arrest of any person for whose arrest he is competent to issue a warrant.
Note :
Magistrates have wider power than private citizen.
A magistrate can arrest on the ground of any offence and not only on
cognizable offence.
Swami Hariharanand Saraswati vs Jailer I/C Dist. Varanasi, AIR 1954,
Magistrate's court."
Sec-76 of CrPC contains a similar provision for a person arrested under a
warrant.
It says, "The police officer or other person executing a warrant of arrest
shall (subject to the provisions of section 71 as to security) without
unnecessary delay bring the person arrested before the court before which
he is required by law to produce such person.
Provided that such delay shall not, in any case, exceed twenty-four hours
exclusive of the time necessary for the journey from the place of arrest to
the Magistrate's court."
It is a very important right that is meant to
prevent abuse of police power
and to prevent the use of a police station as a prison.
The arrested person gets to be heard by a judicial authority that is independent
of the police.
In 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.
In Khatri (II) vs State of Bihar 1981 SCC, SC strongly urged upon the State,
to ensure that this constitutional and legal requirement of bringing an arrested
person before a judicial magistrate within 24 hours be scrupulously met.
This is a healthy provision that allows magistrates to keep a check on the
police investigation.
It is necessary that the magistrates should try to enforce this requirement and
when they find it disobeyed, they should come heavily upon the police.
4. Right to consult Legal Practitioner Art-22(1) and Sec-303 :
Definition : Art 22(1) of Constitution :
No person who is arrested shall be detained in custody without being informed,
as soon as may be, of the grounds for such arrest
nor shall he be denied the right to consult, and to be defended by, a legal
practitioner of his choice.
Sec-303 of CrPC : The same right is also provide by CrPC under Section 303,
Any person accused of offence before a Criminal Court or against whom
proceedings are instituted under this Code may,
of right, be defended by a pleader of his choice."
It is up to the arrested person to contact and appoint such a legal practitioner.
State's responsibility is only to ensure that he is not prevented from doing so.
5. Right to free legal aid - Art 21 and Sec-304 :
A person who does not have the means to hire a legal practitioner is unable to
defend himself appropriately.
This casts a cloud on the fairness of the trial.
Sec-304 :
Where, in a trial before the Court of Session, the accused is not represented by
a pleader,
and where it appears to the Court that the accused does not have sufficient
means to engage a pleader,
the Court shall assign a pleader for his defense at the expense of the State.
In Khatri (II) vs State of Bihar 1981 SCC, Supreme Court has held that
access to a legal practitioner is implicit in Article 21, which gives fundamental
right to life and liberty.
The state is under constitutional mandate to provide free legal aid to an
indigent accused person
and this constitutional obligation arises not only when the trial is
commenced
but also when the person is first produced before a magistrate
and also whenever he is remanded from time to time.
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 vitiate the trial entailing setting aside of the conviction and
sentence.
The right of an accused person 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
indigent person about his right to get free legal aid.
6. Right that police inform arrestee's relatives/friend about arrestSec-50A
In order to ensure a fair trial and to improve people-police relationship, the
Supreme Court, in Joginder Kumar vs State of UP 1994, formulated
rules that make it mandatory on the police officer to inform one friend,
relative, or any other person of the accused person's choice, about his arrest.
These rules were later incorporated in CrPC under Sec-50A in 2005.
Sec-50A : 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.
custody.
Consequences of unlawful arrest OR non-compliance with the provisions
relating to arrest :
In general, non-compliance does not void a trial. Just because any provision
relating to arrest was not complied with does not affect whether the accused is
guilty or not.
Violation of rights of an arrestee will be material, in case the accused is prosecuted
on the charge of resistance to or escape from lawful custody.
Everybody has a right to defend himself against unlawful arrest.
A person can exercise his Right of Private Defence under Section 96 to 106 of
IPC to resist unlawful arrest,
and such a person will not be liable for any injury caused due to exercise of his
right to private defence.
A person who is making an illegal arrest is exposed to criminal (wrongful
confinement) as well as civil proceedings (damages).
Criminal proceedings :
IF a police officer arrests a person with full knowledge that the arrest is illegal,
he will be liable to be prosecuted under Section 220 of IPC.
Similarly, IF any private person arrests a person with full knowledge that the
arrest is illegal,
he can be prosecuted under Section 342 of IPC for wrongful confinement.
Civil proceedings :
A person making illegal arrest also exposes himself to civil suit (damages) of
false imprisonment.
Note : The provisions regarding arrest cannot be by-passed by alleging that there
was no arrest but only an informal detention.
Informal detention or restraint of any kind by the police is not authorized by law.
In reality, the power to arrest is a lucrative source of money for the police.
When an FIR is filed, the police usually spring up into action and arrest the
accused unless the arrest is put on hold by political influence or by money in an
unholy manner.
Arrest is the formal taking of a person to lock up to prevent the accused from
running away from law, or tampering evidence, or induce threat to the witnesses.
However, sometimes these issues can be also be solved by enforcing some
conditions on the accused.
Third Report of the National Police Commission, points out that sixty percent of the
arrests were unnecessary or unjustified.
A major section of jail inmates were those unnecessarily arrested.
Due to procedural tangles some of them are forced to languish in jail for long,
even without knowing the charge on which they were arrested.
Sec-41 of CrPC :
The term may arrest used in the Sec-41 denotes that the power of arrest is
discretionary.
In a cognizable offence, the laws provide the police officer enough legal authority
to arrest an accused and put him in lock up.
Lodging of an FIR {based on a credible information or reasonable suspicion
founded on some definite fact in regard to the commission of a cognisable offence}
- is a must.
However, a police officer is not bound to arrest an accused even if he has
committed a cognizable offence and an FIR is lodged.
CrPC does not provide the police officer an unqualified authority to arrest an
accused.
Police officer must apply his mind and decide whether the person accused need
to be arrested or not.
ie only the fact that an accused has committed a cognizable offence is not a
reasonable ground for making an arrest.
In Arnesh Kumar V State of Bihar & another, the Supreme Court said,
We believe that no arrest should be made only because the offence is non-bailable
and cognizable and therefore, lawful for the police officers to do so.
Impact of arrest on arrestee :
Arrest is in fact an encroachment on the freedom and liberty of the person so
arrested.
It infringes his fundamental right granted by the constitution which can be
restricted only in a limited manner.
Arrest of a person can cause incalculable harm to his reputation which he has built
served.
In E Chathu vs P Gopalan, 1981,
held that when the person sought to be summoned is abroad,
the court can send summons to the concerned embassy official for the
purpose of service since the embassy official is also a public servant.
Sec-69 : The service of summons on a witness can also be done by post -
(1) Notwithstanding anything contained in the preceding sections of this
Chapter, a Court issuing a summons to a witness may,
in addition to and simultaneously with the issue of such summons,
direct a copy of the summons to be served by registered post .
(2) When an acknowledgment purporting to be signed by the witness or an
endorsement purporting to be made by a postal employee that the witness
refused to take delivery of the summons has been received, the Court issuing
the summons may declare that the summons has been duly served.
Effect of disobedience to summons :
A person who is summoned is legally bound to appear before the court on the
given date and time.
Willful disobedience is a ground for contempt of court, liable to be punished under
Section 174 of IPC.
Discuss the provisions relating to attachment and forfeiture of property under the
Criminal Procedure Code (Dec-2015)
ANSWER :
Refer :
https://www.lawfinderlive.com/bts4/cripc.htm
CrPC, u/s 83, provides for attachment and forfeiture of property belonging to a
proclaimed offender under certain circumstances.
Object of Section 83 :
The object of Section 83 is to penalize a person who seeks to avoid his arrest under
warrant and against whom a proclamation is issued under Section 82, for
disobedience of the proclamation.
Accordingly, he incurs liability to be punished under Section 174 of the Indian Penal
Code.
The provision is devised to put additional pressure upon the absconder by depriving
him of his property with a view to compel him to obedience.
Attachment of property of person absconding :
Sec-83(1) : Court issuing proclamation for person absconding under Sec-82 may
for the reasons recorded in writing,
order the attachment of any property movable or immovable belonging to
proclaimed person:
Provided that where at the time of the issue of the proclamation,
the court is satisfied by affidavit or otherwise, that person in relation to whom
the proclamation is to be issued,
(a) is about to dispose of the whole or any part of his property; or
(b) is about to remove the whole or any part of his property from the local
jurisdiction of the Court,
it may Order the attachment simultaneously with the issue of the
proclamation.
Order to be endorsed by magistrate having local jurisdiction :
Sec-83(2) Such order shall authorise the attachment of any property belonging to
such person
when endorsed by the Magistrate or Chief Metropolitan Magistrate within whose
district such property is situated.
Attachment of movable property :
Sec-83(3) If property ordered to be attached is a debt or other movable
property the attachment under this Section shall be made
(a) by seizure; or
(b) by appointment of receiver; or
(c) by an order in writing prohibiting the delivery of such property to the
proclaimed person;
as the Court thinks fit.
Attachment of immovable property :
Sec-83(4) : If the property ordered to be attached is immovable property, the
attachment under this Section shall,
in case of land be made through Collector of District in which the land is situate,
and in all other cases :
(a) by taking possession; or
(b) by the appointment of receiver; or
(c) by an order in writing prohibiting the payment of rent or delivery of
property to the proclaimed person;
as the Court thinks fit.
Attachment of livestock/perishable property :
Sec-83(5) : If the property ordered to be attached consists of livestock or is of a
Write Short Note : Security for keeping peace and good behaviour (Nov-2012)
Explain in detail the provisions relating to taking security for keeping peace and good
behaviour stated in the Cr.P.C. (Oct-2013)
Prevention is better than cure" Keeping in view the statement, state the provisions
"regarding taking securities for maintenance of peace and good behaviour. (Nov-
2014, Apr-2016)
Write short note : Security for good behaviour from a habitual offender. (Nov-2014)
Discuss : Security for good behaviour from habitual offender. (Dec-2015)
ANSWER :
Refer :
Read Provisions in CrPC towards rehabilitation of Criminals on their good behavior
from study notes of 307K Rehabilitation of Criminals & Juveniles.
Discuss in detail the provisions of maintenance of wife, children and parents under
Code of Criminal Procedure. Can the amount of maintenance be altered
Subsequently ? (Nov-2012)
Discuss the provision of maintenance of wife, children and parents under the Criminal
Procedure Code, Can the amount of maintenance be canceled subsequently ?
(Dec-2015)
Discuss in detail the provisions relating to the maintenance of wife, children and
parents stated in the Cr.P.C. (Oct-2013)
Discuss in detail the provision of maintenance of wife, children and parents under
Cr.P.C. Can the amount of maintenance be canceled subsequently ? (Nov-2014)
Discuss in detail the provisions of maintenance of wife , children and parents
under Cr. P. Code. In which circumstances the amount of maintenance be cancel
subsequently ? (Apr-2016)
ANSWER :
Refer :
https://www.lawfinderlive.com/bts4/cripc.htm
Outline :
Intro
CrPC provision for maintenance of wives, children and parents :
Interim maintenance
Civil nature of maintenance proceedings under CrPC
Effect of non-compliance with order passed u/s 125 :
Case when wife is not entitled to receive maintenance :
Wife includes divorced wife :
Meaning of living in adultery :
Effect of judicial separation :
Alteration/ cancellation in the allowance of maintenance :
Power to alter/cancel the allowance of maintenance :
Provision to alter allowance :
Cancellation on account of re-marriage of woman :
Intro :
Chapter 9 of CrPC, Sections 125 to 128
the monthly rate of five hundred in the whole shall not be exceeded.
Cancellation on account of re-marriage of woman :
Sec-127(3) :
Where any order has been made under section 125 in favour of a woman who
has been divorced by, or has obtained a divorce from her husband, the
Magistrate shall, if he is satisfied that -
(a) the woman has, after the date of such divorce, re-married,
cancel such order as from the date of her re-marriage;
(b) the woman has been divorced by her husband
and that she has received, the whole of the sum which, under any
customary or personal law applicable to the parties, was payable on
such divorce,
cancel such order w.e.f. the date such sum is/was paid;
(c) the woman has obtained a divorce from her husband
and that she had voluntarily surrendered her rights of maintenance or
interim maintenance after her divorce,
cancel the order from the date thereof.
ANSWER :
Refer :
Note : ---> Search Neglected Juveniles in Module-1 of 307K Rehabilitation of
Module-2 :
2) Maintenance of Public Order & Tranquility, Investigation, Inquiry and
Jurisdiction of Criminal Courts and Trial Procedures in Criminal Cases :
2.1) Maintenance of Public Order & Tranquility, Powers of the police to take
preventive actions
2.2) FIR, Criminal Complaint, Power of Police to make investigation,
procedure, filing of report, Charge-sheet
2.3) Jurisdiction of Criminal Courts in Inquiries and trials
2.4) Charge :
2.4.1) Provisions relating to framing of Charge
2.4.2) Addition of Charges
2.4.3) Alteration of Charge
2.4.4) Separate charges for distinct offenses
MODULE-2 QUESTIONS :
Discuss : Maintenance of Public Order & Tranquility and Powers of the police to
take preventive actions.
Write Short Note : Procedure for removal of public nuisance (Nov-2012, Nov-2014,
Dec-2015)
Write short notes : Complaint and First Information Report (FIR). (Nov-2011)
Write short note : First Information Report (Nov-2012, Nov-2014, Apr-2016)
Explain in detail : First Information Report and complaint (Oct-2013)
Explain F.I.R., and criminal complaint. (Dec-2015)
Discuss : Investigation, Inquiry and powers of superior officers of police.
Write Short Note : Police diary of proceeding in Investigation (Nov-2012, Nov-2014,
Apr-2016)
Discuss : filing of report, Charge-sheet.
Write short note : Search Warrant. (Nov-2014, Dec-2015, Apr-2016)
Discuss : Trial Procedures in Criminal Cases.
Explain in detail : Further statement of an Accused (Oct-2013)
Discuss : Preliminary pleas that can be used to bar a trial, object a trial . Pleas on
jurisdiction, time barred trial, double jeopardy, disability of accused, estoppel, res
judicata, etc
Discuss all provision relating to charge in Code of Criminal Procedure, 1973. How
charge is framed and when court can alter it ? Explain along with Judicial decision,
(Nov-2012, Nov-2014)
Explain the process of additional or all alteration of charges. How separate
charges frame against distinct offences (Dec-2015)
What is charge ? There should be separate charge for every distinct offence.
Discuss. (Apr-2016)
Discuss provisions relating to Charge in CrPC 1973. How charge is framed and court
can alter it ? (Nov-2011)
Explain in detail the provisions of charge stated in the Code of Criminal Procedure.
(Oct-2013)
What is charge ? There should be separate charge for every distinct offence.
Discuss. (Apr-2016)
Discuss : Joinder/ misjoinder of charges.
Explain the process of additional or all alteration of charges. How separate charges
frame against distinct offences (Dec-2015)
Discuss : Difference between Charge and FIR.
MODULE-2 ANSWERS :
Discuss : Maintenance of Public Order & Tranquility and Powers of the police to
take preventive actions.
ANSWER :
Refer :
https://www.scribd.com/document/346578065/Maintenance-of-Public-Order-and-
Tranquillity
Intro :
The maintenance of Public Order and to ensure tranquility in the public discourse is
the primary objective of any government.
For a country to grow, develop and reach new heights of good governance, it is of
utmost importance that its government should be able to give its citizens a
peaceful and egalitarian environment.
In a situation of failure to provide the above the consequences can be dire and
unpleasant.
When the administrative machinery of a country will be unable to maintain the
public order in its civil society then it society may eventually be subjected to a
situation of chaos and panic and ultimately would be detrimental for the functioning
of the administrative machinery in the state as well as will pose a threat to the
lives of the citizens who want to live peacefully.
The legal provisions pertaining to public order and tranquillity have been primarily
enshrined in the Chapter 10 of CrPC 1973 Maintenance of Public Order and
Tranquillity.
Dispersal of assembly by use of civil force :
Sec-129 :
1) Any Executive Magistrate or office in charge of a police station or, in the
absence of such officer in charge, any police officer, not below the rank of a sub-
inspector, may command any unlawful assembly, or any assembly of five or
more persons likely to cause a disturbance of the public peace, to disperse; and
it shall thereupon be the duty of the members of such assembly to disperse
accordingly.
2) If, upon being so commanded, any such assembly does not disperse, or if,
without being so commanded, it conducts itself in such a manner as to show a
determination, not to disperse, any Executive Magistrate or police officer
referred to in Sub-Section (1), may proceed to disperse such assembly by force,
and may require the assistance of any make person, not being an officer or
member of the armed forces and acting as such, for the purpose of dispersing
such assembly, and, if necessary, arresting and confining the persons who form
part of it, in order to disperse such assembly or that they may be punished
according to law.
Section 130 Use of armed forces to disperse assembly
Section 131 Power of certain armed force officers to disperse assembly
Section 132 Protection against prosecution for acts done under preceding
sections
Section 133 Conditional order for removal of nuisance
And further the sections 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144,
144A, 145, 146, 147 and 148 deal with other provisions in CrPC.
Powers of police in maintenance of public order :
The Police force in the country is entrusted with the responsibility of maintenance
of public order and prevention and detection of crimes.
Each state and union territory of India has its own separate police force.
Article 246 of the Constitution of India designates the police as a state subject,
which means that the state governments frames the rules and regulations that
govern each police force.
These rules and regulations are contained in the police manuals of each state force.
The Police force in the state is headed by the Director General of Police/Inspector
General of Police.
Each State is divided into convenient territorial divisions called ranges and each
police range is under the administrative control of a Deputy Inspector General of
Police.
A number of districts constitute the range.
District police is further sub-divided into police divisions, circles and police-stations.
Besides the civil police, states also maintain their own armed police and have
separate intelligence branches, crime branches, etc.
Police set-up in big cities is directly under a Commissioner of Police who enjoys
magisterial powers.
All senior police posts in various states are manned by the Indian Police Services
(IPS) cadres, recruitment to which is made on all-India basis.
The Central Government maintains Central Police forces, Intelligence Bureau (IB),
Central Bureau of Investigation (CBI), institutions for training of police officers and
forensic science institutions to assist the state in gathering intelligence, in
maintaining law and order, in investigating special crime cases and in providing
training to the senior police officers of the state governments.
Constitutional validity of police powers :
The Powers of the Administration in the maintenance of the public order and
tranquillity have been specifically mentioned in both Cr.PC and the Police Act,
1861(Powers of the Police).
In Babul al Parate v state of Maharashtra AIR 1961 SC 884 Supreme Court settled
the issue of the Constitutional Validity of the Section 144. It was held that,
The power conferred by section 144 of CrPC can be exercised only in an
emergency and for the purpose of preventing obstruction, annoyance or injury to
any person lawfully employed, or danger to human life, health or safety, or a
disturbance of the public tranquillity or a riot, or an affray.
These factors condition the exercise of the power and it would consequently be
wrong to regard that power as being unlimited or untrammelled.
Further, it should be borne in mind that no one has a right to cause obstruction,
annoyance or injury etc. to anyone.
Since the judgment has to be of a Magistrate as to whether in the particular
circumstances of a case an order, in exercise of these powers, should be made
or not, we are entitled to assume that the powers will be exercised legitimately
and honestly.
The section cannot be struck down on the ground that the Magistrate may
possibly abuse his powers.
The rights guaranteed by Article 19(1)(a) and (b) are not absolute rights but are
Write Short Note : Procedure for removal of public nuisance (Nov-2012, Nov-2014,
Dec-2015)
ANSWER :
Refer :
http://cyberadvocate.in/mod/page/view.php?id=760
https://indiankanoon.org/doc/440471/
Conditional order for removal of public nuisance :
The term 'nuisance' is not definied under CrPC.
It broadly means an act or omission which causes injury, danger or annoyance
to common public.
Eg (i) illegal parking of vehicles causing of trouble for motorists and residents, (ii)
dangerous building, tree, tank, water body etc, (iii) polluting industry.
Section 133 of the CrPC empowers a magistrate to pass an order for "removal of
nuisance''.
Thus, if citizens of a locality believe that constant dumping of debris in a nearby
nullah or an obstruction to a drain is going to result in flooding,
then they can approach a magistrate under this section to get the local
government to put an end to such a nuisance.
By resorting to this provision, citizens will not have to approach the HC by filing a
writ or a Public Interest Litigation (PIL) every time they want authorities to clean
up a drain, or any public nuisance for that matter.
provision.
Write short notes : Complaint and First Information Report (FIR). (Nov-2011)
Write short note : First Information Report (Nov-2012, Nov-2014, Apr-2016)
Explain in detail : First Information Report and complaint (Oct-2013)
Explain F.I.R., and criminal complaint. (Dec-2015)
ANSWER :
Refer :
http://hanumant.com/CrPC-DifferencesShortNotes.html
https://www.lawfinderlive.com/bts4/cripc.htm
Outline :
Complaint :
Essential ingredients of a complaint :
Procedure when complaint is filed : Sections 200 to 204 :
Where Magistrate chooses to take cognizance :
Where Magistrate does not take cognizance of matter :
Sec-202 : Postponement of issue of process :
Sec-203 : Dismissal of complaint :
Sec-204 : Issue of processed :
First Information Report (FIR) :
Sec-154 : Information in cognizable cases :
Procedure :
Evidentiary Value of FIR :
Difference between FIR and Complaint :
Complaint :
Sec-2(d) :
"Complaint means any allegation made orally or in writing to a Magistrate with
a view to his taking action under this Code,
that some person known or unknown has committed an offence but does not
include police report."
Explanation :
A Report made by a Police Officer {in a case which discloses, the commission
of a non-cognizable offence}
shall be deemed to be complaint
the information given by any person about a cognizable offence and recorded by
the police in accordance with Section 154.
Sec-154 : Information in cognizable cases :
(1) 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,
and the substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this behalf.
SC in the case of State of Bombay vs Rusy Mistry, AIR 1960, defined FIR as so -
A FIR means the information,
by whomsoever given,
to the officer in charge of a police station
in relation to the commission of a cognizable offence
and which is first in point of time
and on the strength of which the investigation into that offence is commenced.
Thus, FIR is nothing but information of the nature of a complaint or accusation
about a cognizable offence given by any person to the police so that the police can
start investigation.
When a person reports any information about a cognizable offence to the police,
the police is bound to register a case and proceed with investigation.
However, for police to investigate the matter, the offence must be a cognizable
offence,
because the police is not allowed to investigate a non-cognizable offence without
an order from a magistrate.
In case of State of UP vs R K Shrivastava, 1989, SC held that,
if the allegations made in an FIR do not constitute a cognizable offence, the
criminal proceeding instituted on the basis of the FIR should be quashed.
Procedure :
Once the duty officer is certain that the offence alleged to have been
committed is a cognizable offence, he directs the complainant to put his
statement in writing.
In the presence of the complainant, the duty officer shall complete all the
columns in the FIR register with the information given by the complainant.
He shall then read out all the contents of the FIR registered to the complainant.
Once the complainant is certain that all the details have been correctly written,
he should sign the FIR.
FIR merely contains the facts of the offence as known by the informant.
The FIR is a statement by the complainant of an alleged offence.
The informant is not required to prove his allegations in any manner at the police
station.
It is the job of the police to ascertain facts, verify details and substantiate the
charges or otherwise.
However, the facts must not be vague. The facts must divulge at least some
concrete information about the offence committed.
In case of Tapinder Singh vs State, 1972, SC held that
when a telephone message did not disclose the names of the accused nor did
it disclose the commission of a cognizable offence, it cannot be called a FIR.
Sometimes multiple persons may report the same incident and in such situation the
police must use commonsense and record one statement as FIR. Usually, the
statement that contains enough information to allow the police to proceed with
investigation is recorded as FIR.
Evidentiary Value of FIR :
A FIR is not substantive evidence, ie it is not evidence of the facts which it
mentions.
However, it is very important since it conveys the earliest information about the
occurrence of an offence and,
it can be used to corroborate the information under Section 157 of Indian
Evidence Act
or to contradict him under Section 145 of Indian Evidence Act, if the informant
is called as a witness in a trial.
FIR has a better corroborative value if there is not much delay and it is recorded
before there is time and opportunity to embellish or before the memory of the
information becomes hazy.
In case of delay, there must be a reasonable cause for the delay.
In case of Harpal Singh vs State of HP, 1981, involving rape, the FIR was
registered after 10 days. It was held that
the delay was reasonable because it involved considerable matter of honor
for the family and that required time for the family to decide whether to
take the matter to court or not. As FIR can also be used in cross
examination of the informant.
However, if the FIR is made by the accused himself, it cannot be used against
him,
because of Section 25 of Evidence act which forbids any confession made to
FIR Complaint
goats.
(d) Injured person not wishing an inquiry : Unimportant cases in which the
person, injured does not wish inquiry,
unless (i) the crime is suspected to be the work of a professional or
habitual offender or (ii) a rowdy element (iii) the investigation appears
desirable in the interests of the Public.
(e) Undetectable simple cases : Simple cases of house-breaking or
housetrespass and petty thefts of unidentifiable property, is none of which
cases is there any clue to work upon or any practical chance of detection,
provided that there is nothing to indicate that the offence has been
committed by a professional criminal.
(f) Exaggerated assaults : Assault in cases which have been obviously
exaggerated by the addition of the other charges such as theft.
Powers of SUPERIOR officers of police : Report to be sent in case of Refusal of
Investigation :
Sec-158 : makes provisions as to the submission of a report :
(1) Every report sent to a Magistrate under Section 157 shall be submitted
through such superior officer of police as the State Government appoints
in that behalf.
(2) Such superior officer may give such instruction to the officer-in-charge of a
police station as he thinks fit,
and shall, after recording such instructions on such report transmit the
same without delay to the Magistrate.
THUS, when an investigation is refused,
at once a First Information Report need be submitted ( through superior
police officer) to the court with copies usually sent to the informant,
specifically indicating in the FIR format under column 13 ACTION TAKEN
that,
the above report reveals commission of offences under section
..,
but falling under the categories of ---> triviality or civil nature or petty theft
or injured person not wishing to have an inquiry or undetectable simple case
or exaggerated assault coupled with theft,
was registered in crime number
and investigation REFUSED.
Superior officers of police shall record, on the report, his instructions to the
SHO.
It is also stated that further report will not be submitted, under Sec-157(1)
(a)(b) & (2).
Sec-159 : Magistrates power to hold preliminary inquiry after police report u/s 157
Sec-159 : Such Magistrate, on receiving such report,
may direct an investigation,
or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to
him to proceed,
to hold a preliminary inquiry into, or otherwise to dispose of,
the case in the manner provided in the Code.
In S.N. Sharma v. Bipen Kumar Tiwari, 1970 SCC (Cri) 258, it was observed that
Section 159 is primarily meant to give the magistrate the power of directing an
investigation in cases in which the police decide not to investigate under the
proviso to Section 157(1).
Section 159 is really intended to give a limited power to Magistrate to ensure
that the Police do not refuse to investigate by abusing their power for certain
limited cases.
Sec-160 : Police Officer's power to require attendance of witnesses :
Sec-160 is meant to provide facility for the police
to obtain evidence with regard to the crime which is being investigated
and to secure attendance of person who could supply the necessary
information in regard to the commission of the offence.
Sec-160 provides that any police officer making an investigation may,
by order in writing,
require the attendance before himself of any person who appears to be
acquainted with the circumstances of the case;
and such person shall attend as so required :
Provided that no male person under the age of fifteen years or woman shall be
required to attend at any place other than the place in which such male person
or woman resides.
Sec-161 : Examination of witness by police :
The Police have the power to examine witnesses during the course of an
investigation.
Sec-161 :
(1) Any police officer making an investigation under this Chapter, or any police
officer acting on the requisition of such officer,
may examine orally any person supposed to be acquinted with the facts and
circumstances of the case.
(2) Such person shall be bound to answer truly all the questions relating to
such case put to him by such officer,
other than questions, the answers to, which would have a tendency to
Refer :
https://www.lawfinderlive.com/bts4/cripc.htm
Sec-47 : Search of place entered by person sought to be arrested :
Sec-47(1) : Police can search any place to effect arrest.
If any person acting under a warrant of arrest, or any police officer having
authority to arrest,
has reason to believe that the person to be arrested has entered into, or is
within, any place,
any person residing in, or being in charge of, such place
shall, on demand of such police officer,
allow him free ingress thereto, and afford all reasonable facilities for a search
therein.
Sec-47(2) : Police can forcibly enter or break open door to search & effect arrest.
If ingress to such place cannot be obtained under sub-section (1),
it shall be lawful for a police officer to enter such place and search therein,
and in order to effect an entrance into such place,
to break open any outer or inner door or window of any house or place,
whether that of the person to be arrested or of any other person,
if after notification of his authority and purpose, and demand of admittance
duly made, he cannot otherwise obtain admittance;
Sec-51 : Search & seizure of articles of arrested person :
(1) Whenever a person is arrested by a police officer
the officer making the arrest may search such person,
and place in safe custody all articles, other, than necessary wearing-apparel,
found upon him
and where any article is seized from the arrested person,
a receipt showing the articles taken in possession by the police officer shall be
given to such person.
(2) Whenever it is necessary to cause a female to be searched ,
the search shall be made by another female with strict regard to decency.
Sec-93 : When search-warrant may be issued :
"Search Warrant" can be issued if the court has reason to believe that :
(a) A person who inspite of summons or requisition under Sections 91 and 92 of
Code, to produce a document, will not or would not produce it or
(b) Where such document or thing is not known to the Court to be in possession
of any person.
(c) Where general inspection or search is necessary.
Discuss : Preliminary pleas that can be used to bar a trial, object a trial. Pleas on
jurisdiction, time barred trial, double jeopardy, disability of accused, estoppel, res
judicata, etc
ANSWER :
Refer :
https://csgautam.wordpress.com/2012/01/08/criminal-procedure-code-1973/
Preliminary plea/ objections to a trial :
When an accused appears or is brought before the court for a trial, he (or
prosecutors) may raise certain pleas or objections to avoid the trial.
Such pleas are meant to stop the trial from proceeding further and discharge the
accused.
There is no explicit direction in CrPC regarding the timing for such pleas.
Normally, such pleas are supposed to be brought forth at the beginning of a trial or
as soon as charges are framed.
List of preliminary pleas that can be raised -
1. Court without Jurisdiction - Section 26 & Section 177 to 188 :
subject matter jurisdiction
territorial jurisdiction
2. Conflicts of interest : Section 479
3. Time barred proceedings : Section 468 :
4. Double jeopardy : Art-20(2) and Sec-300 of CrPC :
5. Disabilities of the accused - Art-21 ans Section 304 :
no lawyer
minor
unsound mind
6. Issues of estoppel -
7. Issues of res judicata -
. . . etc . . .
1. Court without Jurisdiction - Section 26 AND Section 177 to 188 :
Jurisdiction of criminal courts is of two kinds.
A. Subject matter jurisdiction or competency of the court to try a specific
offence and
B. Territorial jurisdiction.
A. Subject matter jurisdiction or competency of the Court to try an offence
Section 26 read with column 6 of the first schedule determines which court can
try a given offence.
For example, offences against public tranquility can be tried by any magistrate
while the offence of counterfeiting a government stamp can be tried only by a
Court of Session.
Similarly, only the prescribed court or magistrate has the power for all the
offences defined in IPC and other laws.
Thus, any party to the proceeding can raise the plea that the court is not
competent to try the concerned offence.
Section 461 provides that
it any magistrate, who is not empowered to try an offence, tries the offender
for that offence, the proceedings shall be void.
Also, an executive magistrate has no power to conduct trial for any offence .
B. Territorial Jurisdiction -
This jurisdiction is determined according to Section 177 to 188 of CrPC.
These rules have been enacted mainly for the purpose of convenience of the
court, the investigating agency, the accused, and the victim.
The general concept is that only the court in whose territory the offence or any
part of offence has happened, can try that offence.
In simple terms, an offence committed in Mumbai cannot be tried in a court in
Delhi.
However, most case are not as simple as that.
For example, A hurts B by a knife in Dewas and B dies because of the wound
in Indore.
In this case, both the courts in Dewas and Indore have jurisdiction.
However, if the victim B lives in Bhopal and if FIR of his death is filed in
Bhopal. Can A be tried in Bhopal?
If not, and if A is tried in Bhopal, A can raise a pleas to bar the trial in
Bhopal.
Note :
Any violation of the rules of territorial jurisdiction does not ipso factor vitiate
the trial
unless it has in fact resulted in failure of justice .
However, if a plea of territorial jurisdiction is raised in the beginning of the
trial, then such objection must be sustained and the trial must be stopped. It
cannot gain legitimacy under Section 462 in that case.
2. Conflicts of interest : Section 479 :
Section 479 :
No magistrate or judge can try any case in which he is a party or in which he is
interested.
If a trial is initiated in violation of this rule, a plea can be raised in this regard.
3. Time barred proceedings : Section 467 to 473 :
Before CrPC 1973, any offence committed could be taken cognizance of after any
number of years.
This caused grave injustice to the accused or prosecution because it may happen
that important witnesses are unavailable, or important evidence is destroyed by
time.
For these reasons, CrPC 1973 has incorporated some general rules for taking
cognizance of the crimes within a specific period of their happening.
In general, the principle that offences punishable with only fine or with
imprisonment up to 3 yrs should be tried within a limited time.
The provisions regarding such limitations are contains in Section 467 to 473 and an
accused can take advantage of the appropriate section to raise the plea that the
case against him is barred by the prescribed period of limitation.
Period of limitations : Section 468 contains the basic rule which provides that
no court shall take cognizance of an offence punishable with fine only or with
imprisonment up to three yrs after the expiry of the period of limitation. The
period of limitations are -
6 months, if the offence is punishable by fine only.
1 yr, if the offence is punishable with imprisonment of a term not exceeding 1
yr.
3 yrs, if the offence is punishable with imprisonment of a term not exceeding 3
yr.
Note :
Trial of offences of serious nature, i.e. offences which entail punishment of
imprisonment of more than 3 yrs, or death, as of yet, are not barred by any time
limitation.
These provisions are subject to any other provision which might have been
created explicitly for any particular offence.
4. Double jeopardy : Art-20(2) and Sec-300 of CrPC :
Plea of autrefois acquit and autrefois convict -
This means that if the offender has already been tried for the exact same offence
before and he has been either acquitted or convict in that trial, he cannot be
tried again on that offence.
Art 20(2) of the constitution recognizes this principle as a fundamental right.
It says that no person shall be prosecuted and punished for the same offence
more than once.
Sec-300 CrPC :
While Art-20(2) gives this right only upon previous conviction, Section 300 of
CrPC fully incorporates this principle.
5. Disabilities of the accused - Art-21 & Section 304 :
Under the broad interpretation of Article 21 by Supreme Court,
an accused has a fundamental right to be represented by a legal practitioner in
his trial.
However, if he is indigent, it is the responsibility of the state to provide a lawyer for
him.
Section 304 also requires the court to assign a pleader for the accused in certain
situations.
If this is not done, a plea can be raised in this regard.
And, if the trial still proceeds, despite the objections, then the trial is deemed
to be vitiated.
Moreover, when the accused is of unsound mind and consequently incapable of
making his defence,
the code requires the court to postpone the trial until the accused has ceased to
be so. The accused can raise this plea for objecting the trial.
6. Issues of estoppel -
7. Issues of res judicata -
Discuss all provision relating to charge in Code of Criminal Procedure, 1973. How
charge is framed and when court can alter it ? Explain along with Judicial decision,
(Nov-2012, Nov-2014)
Explain the process of additional or alteration of charges. How separate charges
frame against distinct offences (Dec-2015)
What is charge ? There should be separate charge for every distinct offence.
Discuss. (Apr-2016)
Discuss provisions relating to Charge in CrPC 1973. How charge is framed and court
can alter it ? (Nov-2011)
Explain in detail the provisions of charge stated in the Code of Criminal Procedure.
(Oct-2013)
ANSWER :
Refer :
https://www.scribd.com/document/133437200/Notes-on-Charge
Outline :
What is "Charge" ?
Sec-211-213 : Contents of a Charge :
written in the language of the court
offence with which the accused is charged
specific name, if possible. Else description
law and section of the law
Time and Place of the offence
Manner of committing the offence :
date and place of the previous, conviction
Sec-215-216 : Addition/ alteration of charge :
What is "Charge" ?
As per Wharton's law Lexicon,
Charge means to prefer an accusation against some one.
To charge a person means to accuse that person of some offence.
However, in Indian legal context, charge is not a mere accusation made by a
complainant or an informant.
A charge is a formal recognition of concrete accusations by a magistrate or a
court based upon a complaint or information against the accused.
A charge is drawn up by a court only when the court is satisfied by the prima facie
evidence against the accused.
The basic idea behind a charge is to make the accused understand what exactly he
is accused of so that he can defend himself.
A charge gives the accused accurate and precise information about the accusation
against him.
A charge is written in the language of the court.
It is a basic principle of law that when a court summons a person to face a charge,
the court must be equipped with at least prima facie material to show that the
person being charged is guilty of the offences contained in the charge.
Thus, while framing a charge, the court must apply its mind to the evidence
presented to it and must frame a charge only if it is satisfied that a case exists
against the accused.
In the case of State vs Ajit Kumar Saha 1988,
the material on record did not show a prima facie case but the charges were
still framed by the magistrate.
Since there was no application of mind by the magistrate, the order framing
the charges was set aside by the High Court.
Contents of a Charge :
According to Section 2(b) of CrPC, when a charge contains more than one heads,
the head of charges is also a charge.
Sec-211 : Contents of a Charge -
(1) Every charge under this Code shall state the offence with which the accused
is charged.
(2) If the law that creates the offence gives it any specific name,
THEN the offence may be described in the charge by that specific name only.
(3) If the law that creates the offence does not give it any specific name
THEN so much of the definition of the offence must be stated as to give the
accused notice of the matter with which he is charged.
(4) The law and section of the law against which the offence is said to have been
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 charged, was fulfilled in
the particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused, having been previously convicted of any offence, is liable, by
reason of such previous conviction, to enhanced punishment, or to punishment
of a different kind, for a subsequent offence,
and it is intended to prove such previous conviction for the purpose of
affecting the punishment which the court may think fit to award for the
subsequent offence,
THEN the fact date and place of the previous, conviction shall be stated in the
charge;
and if such statement has been omitted, the court may add it at any time
before sentence is passed.
Actual definitions of offences need not be given in the charge, provided, the
sections & statutes under which the offence is punishable must, in each instance,
be referred to in the charge.
Illustrations -
(a) A is charged by the court with murder, cheating, theft, extortion, adultery or
criminal intimidation, or using a false property-mark.
This is equivalent to statements,
that As acts fell within definitions of murder, cheating, theft, extortion,
adultery, criminal intimidation, and that he used a false property-mark, as
defined in statutes mentioned in the charge.
that As acts did not fall within any of the general exceptions or exceptions
specific to sections of laws;
Time and Place of the offence :
Sec-212 : The charge must also specify the essential facts such as time, place,
and person comprising the offence.
For example, if a person is charged with Murder,
the charge must specify the name of the victim and date and place of the
murder.
In case of Shashidhara Kurup vs Union of India 1994, no particulars of offence
were stated in the charge. It was held that
the particulars of offence are required to be stated in the charge so that the
accused may take appropriate defence.
where this is not done and no opportunity is afforded to the accused to defend
his case, the trial will be bad in law for being violative of the principles of natural
justice.
Exception :
It is possible that exact dates may not be known. In such cases, the charge
must specify information that is reasonably sufficient to give the accused the
notice of the matter with which he is charged.
Manner of committing the offence :
Sec-213 :
When the nature of the case is such that the particulars mentioned in sections
211 and 212 do not give accused sufficient notice of the matter with which he is
charged,
THEN the charge shall also contain such particulars of the manner is which the
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately
with the trial is not likely to prejudice the accused in his defence or the
prosecutor in the conduct of the case
the court may, in its discretion, after such alteration or addition has been
made, proceed with the trial as if the altered or added charge had been the
original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial
is likely to prejudice the accused or the prosecutor as aforesaid,
the court may either direct a new trial or adjourn the trial for such period as
may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution
of which previous sanction is necessary,
the case shall not be proceeded with until such sanction is obtained, unless
sanction had been already obtained for a prosecution on the same facts as
those on which the altered or added charge is founded.
Thus, even if there is an error in a charge, it can be corrected at a later stage.
An error in a charge is not important as long as the accused in not prejudiced and
principles of natural justice are not violated.
Illustrations:
(a) A is charged with cheating B, and the manner in which he cheated B is not
set out in the charge.
There were many transactions between A and B, and A had no means of
knowing to which of them the charge referred, and offered no defence.
Here, the court may infer from such facts that the omission to set out the
manner of cheating was a material error.
(b) A is charged with the murder of Khoda Baksh on the 21st January 1882. In
fact, the murdered person's name was Haidar Baksh, and the date of the murder
was the 20th January 1882.
A was never charged with any murder but one, and had heard the inquiry
before the Magistrate, which referred exclusively to the case of Haidar Baksh.
The court may infer from these facts that A was not misled, and that the error
in the charge was immaterial.
(c) A was charged with murdering Haidar Baksh on the 20 th January 1882, and
Khoda Baksh (who tried to arrest him for that murder) on the 21 st January 1882.
When charged for the murder of Haidar Baksh, he was tried for the murder of
Khoda Baksh.
The witnesses present in his defence were witnesses in the case of Haidar
Baksh.
The court may infer from this that A was misled, and that the error was
material.
Section 464 further provides that an order, sentence, or finding of a court
will not be deemed invalid merely on the ground that no charge was framed or
on the ground of any error, omission or irregularity in the charge including any
misjoinder of charges,
unless in the opinion of the court, a failure of justice has in fact happened
because of it.
Note :
If a court of appeal, confirmation, or revision find that a failure of justice has
indeed happened,
in case of omission, it may order that a charge be immediately framed and
that the trial be recommenced from the point immediately after the framing of
the charge,
and in case of error, omission, or irregularity in the charge, it may order new
trial to be held upon a charge framed in whatever manner it thinks fit.
As is evident, the object of these sections is to prevent failure of justice where
there has been only technical breach of rules that does not affect the root of the
case as such.
In the case of Kailash Gir vs V K Khare, Food Inspector, 1981,
held that whatever be the irregularity in framing the charge, it is not fatal unless
there is prejudice caused to the accused.
What is charge ? There should be separate charge for every distinct offence.
Discuss. (Apr-2016)
Discuss : Joinder/ misjoinder of charges.
Explain the process of additional or all alteration of charges. How separate charges
frame against distinct offences (Dec-2015)
ANSWER :
Refer :
http://hanumant.com/CrPC-Unit8-Charge.html
Outline :
Need for separate charges for distinct offences :
Sec-218 : separate charge for every distinct offence
Object of 218 : not to frustrate defence
Meaning of separate charges
394 (Voluntarily causing hurt while committing robbery) of the Indian Penal
Code.
A may be tried at single trial.
Exception 6 : Section 221 - Where it is doubtful what offence has been
committed -
Section 221 :
If a single act or a series of acts is of such nature that it is doubtful which of
the several offences the facts of the case will constitute,
THEN the accused may be charged with having committed all or any of such
offences and all or any of such charges may be tried at once.
When a person is charged with an offence but according to evidence it appears
that he committed another offence,
he may be convicted of the offence which he is shown to have committed
even if he is not charged with that offence.
For example, A is accused of an act which may amount to theft, or receiving
stolen property, or criminal breach of trust or cheating.
A may be charged with theft, and receiving stolen property, and criminal
breach of trust and cheating,
or A may be charged with having committed theft, or receiving stolen property
or criminal breach of trust or cheating.
Further, in the same case mentioned, lets say, A is only charged with theft and
it appears that he committed the offence of criminal breach of trust, or that of
receiving stolen goods.
He may be convicted of criminal breach of trust of receiving stolen goods
(as the case may be) though he was not charged with such offence.
For example, A states on oath before the Magistrate that he saw B hit C with a
club. Before the Sessions Court A states on oath that B never hit C.
Here, A may be charged in the alternative and convicted of intentionally giving
false evidence, although it cannot to be proved which of these contradictory
statements was false.
Exception 7 : Section 223 - Certain persons may be charged jointly -
Section 223 : The following persons may be charged and tried together,
namely:-
(a) persons accused of the same offence committed in the course of the same
transaction;
(b) persons accused of an offence and persons accused of abatement of, or
attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the
meaning of section 219 committed by them jointly within the period of twelve
months;
(d) persons accused of different offences committed in the course of the same
transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or
criminal misappropriation,
and persons accused of receiving or retaining, or assisting in the disposal or
concealment of, property possession of which is alleged to have been
transferred by any such offence committed by the first-named persons,
or of abatement of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal
Code (45 of 1860)
or either of those sections in respect of stolen property the possession of
which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code
(45 of 1860) relating to counterfeit coin
and persons accused of any other offence under the said Chapter relating to
the same coin,
or of abatement of or attempting to commit any such offence;
and the provisions contained in the former part of this Chapter shall, so
far as may be, apply to all such charges :
Provided that where a number of persons are charged with separate offences
and such persons do not fall within any of the categories specified in this section,
THEN the Magistrate may, if such persons by an application in writing, so
desire, and if he is satisfied that such persons would not be prejudicially
affected thereby, and it is expedient so to do, try all such persons together.
Module-3 :
3) Trial Procedure in Criminal Cases & its General Provisions :
3.1) Criminal Trials :
3.1.1) Trial before the Court of Session
3.1.2) Warrant Trial Cases by Magistrates - procedure
3.1.3) Summons Trial Cases by Magistrates - Procedure
3.1.4) Summary Trials
3.1.5) Distinction: Discharge, Acquittal and Conviction
3.2) Plea Bargaining procedure
3.3) General Provisions relating to Inquiries and Trials :
3.3.1) Person once convicted/acquitted, not to be tried for same offence
3.3.2) Public Prosecutors, Legal Aid to accused, Tender of Pardon to
accomplice, Compounding of Offences and other provisions
3.4) Provisions as to accused persons of unsound mind
3.5) Provisions relating to judgment
3.6) Submission of Death Sentence for confirmation
MODULE-3 QUESTIONS :
Discuss the procedure in a trial of session case before a Court of Session, keeping in
mind the various stages of proceedings. (Nov-2011, Nov-2012)
Explain in detail the procedure in a trial before a court of session keeping in mind the
various stages of proceedings. (Oct-2013)
Discuss the procedure in a trial of session court after committal the criminal case
to Session Court. (Nov-2014)
Discuss the procedure in a trial of sessions case before a Court of session. (Apr-2016)
What is warrant case ? Explain in detail the trial of warrant case and summons case
and distinguish between them. (Nov-2011, Nov-2012)
What is a warrant case ? What are the types of warrant case ? Discuss in detail the
trial of warrant case. (Apr-2016)
Explain in detail the provisions of the "Trial of Summons cases as Well as Warrant
cases stated in the Cr. P.C. (Oct-2013)
Write short note : Summons case and Warrant case. (Nov-2014)
Discuss : Summons trial cases & warrant trial cases under the provision of Cr. IPC
(Dec-2015)
Write Short Note : Summons case and summary case (Nov-2012, Nov-2014, Apr-
2016).
Distinguish : Discharge, Acquittal and Conviction.
Explain in detail : Concept of Plea - Bargaining (Oct-2013)
Explain : Person once convicted or acquitted, not to be tried for same offence
under Cr.P.C. (Dec-2015)
The judicial procedure cannot be re-initiated against the person who has been
sentenced or acquitted. Explain. (Apr-2016)
Write short note : Public Prosecutor (Nov-2012, Nov-2014, Dec-2015, Apr-2016)
Write short notes : Legal aid to an accused at State expenses. (Nov-2011)
Write Short Note : Legal Aid to accused (Nov-2012)
Write short note : Legal aid to accused at Govt. expense (Nov-2014, Dec-2015, Apr-
2016)
Write short notes : Tender of Pardon to an accomplice. (Nov-2011, Nov-2012, Nov-
2014)
Write short note : An approver (Nov-2014, Dec-2015, Apr-2016)
Write short notes : Compoundable and non-compoundable offence. (Nov-2011)
Discuss the provisions of accused persons of unsound mind under CRPC. (Dec-2015)
Discuss : Provisions relating to judgment and Submission of Death Sentence for
confirmation.
MODULE-3 ANSWERS :
Discuss the procedure in a trial of session case before a Court of Session, keeping in
mind the various stages of proceedings. (Nov-2011, Nov-2012)
Explain in detail the procedure in a trial before a court of session keeping in mind the
various stages of proceedings. (Oct-2013)
Discuss the procedure in a trial of session court after committal the criminal case
to Session Court. (Nov-2014)
Discuss the procedure in a trial of sessions case before a Court of session. (Apr-2016)
ANSWER :
Refer :
http://thepracticeoflawjalan.blogspot.in/2012/04/crpc-trial-before-sessions-
court.html
http://www.legalservicesindia.com/article/article/criminal-trial-important-points-
1646-1.html
https://saralkanoon.wordpress.com/2016/01/31/process-of-trial-of-criminal-cases-
in-india/
https://www.slideshare.net/AnamikaSharma95/warrant-trial-in-india
<for a short note and FLOW CHART, search stages of trial in this doc>
Outline : [Sec-225 to Sec-237]
1. Committal the criminal case to Session Court
2. Opening of case by Prosecution : [Sections 225 & 226].
3. Discharge of accused : [Section 227]
4. Framing of charges : [Section 228]
5. Plea of guilt : [Section 229]
6. Evidence of Prosecution : [Section 230]
7. Prosecution witness examination :
8. Prosecution : Oral arguments and memorandum of arguments : Section 314:
9. Examination of accused : [Section 313]
10. Acquittal of accused : [Section 232]
11. Evidence of accused : [Section 233]
12. Application, if any, by accused to compel production of any witnesses and/or
any documents : [Section 233]
13. Oral arguments : [Section 234, 314]
14. Judgment of acquittal or conviction : [Section 235(1)]
15. Pre-sentence hearing : Section 235(2):
16. Cases involving previous conviction of the accused : [Section 236]
17. Consideration of release of convict on probation of good conduct or after
admonition : [Section 235(2), Section 360]
18. Judgment : [Section 353]
Detailed notes : Sessions Case : Trial Procedure :
Intro :
Sessions Court is the court that deals with such criminal cases at a district level
which are more serious of the warrant cases.
It cannot take cognizance directly of any offense except in cases of defamation as
given u/s 199 of CrPC.
In rest other, a competent magistrate takes cognizance and commits the case to
the sessions court for trial.
or (b) that acts and omissions attributed towards the accused does not
constitute any offence.
http://thepracticeoflawjalan.blogspot.in/2012/04/crpc-discharge-of-
accused.html
4. Framing of charges : [Section 228]
In case, if it appears to the Judge that the offence is not exclusively triable by
Court of Sessions,
it would frame the charges and transfer the case to Chief Judicial Magistrate or
to Judicial Magistrate of the First Class
and would direct the accused to appear before that Court.
In case, the case is to be exclusively triable by the Court of Sessions,
the charges so framed would be read out and explained to the accused person;
and would call upon the accused as whether he pleads guilty of the offence
charged or claims to be tried.
http://thepracticeoflawjalan.blogspot.in/2015/02/s-211-to-224-framing-of-
charges.html
Sec-228(1) and Sec-227 ensure that no frivolous accusation is made or that no
trial takes place without any material.
Sec.227 and 228 are inter-related since the principles that are to be followed u/s
227 to discharge an accused can also be made applicable to the framing of
charges.
5. Plea of guilt : [Section 229]
If the accused pleads guilty, the Judge would record his plea and may in its
discretion convict the accused.
Accused can be convicted based on plea of guilt,
except in cases where the offense in question is punishable by death or life
imprisonment where there is a form of reluctance to convict based on such plea.
If a conviction is done, then any right of appeal against such conviction stands
curtailed. Hence, for conviction on the basis of such plea, it is held by the Hon`ble
Supreme Court to be essential that the accused be confronted with the substance
of allegations against him.
6. Evidence of Prosecution : [Section 230]
In case the accused claims to be tried or plea of guilt is not accepted,
the Judge would fix the date for the examination of the witnesses of the
Prosecution;
and where the Prosecution makes any Application for issuance of Summons for
the attendance of any Witness, the Judge may issue such Summons.
7. Prosecution witness examination :
On the date so fixed, the Judge would proceed to take all such evidence of all
prosecution witnesses.
The Judge may defer the cross-examination of any witness until any other witness
or witnesses have been examined or recall any witness for further cross-
examination.
Instructions for leading Oral and documentary evidence : http://commonlaw-
sandeep.blogspot.in/2016/03/leading-evidence-during-trial.html
8. Prosecution : Oral arguments and memorandum of arguments : Section 314:
The Prosecution, after the conclusion of their evidence, is entitled to offer oral
arguments in respect of their whole case;
And may also submit a written arguments setting forth concisely and under distinct
headings, the arguments in support of their case.
Such written submission forms part of the record.
No adjournment of the proceedings shall be granted for the purpose of filing the
written submissions unless the Court, for reasons to be recorded in writing,
considers it necessary to grant such adjournment.
The Court may, if it is of opinion that the oral arguments are not concise or
relevant, regulate such arguments.
A copy of every such submission should be furnished to the opposite party.
9. Examination of accused : [Section 313]
After taking evidence of all prosecution witnesses,
by reason of mandate of section 313 of CrPC, 1973,
the Judge would bring to the notice of the accused, all the evidence which has
come against him
and would call upon the accused as what he has to say on those evidences.
Such recording of statement of accused u/s 313 is not on oath.
The accused may also submit a written submission in this behalf.
It is extremely important to bear in mind that whilst examination of accused
under this section,
all the evidences led by the prosecution must be brought to the knowledge of
the accused.
If any of the evidence was omitted to be brought to his knowledge, the said
evidence cannot be relied upon by the Court whilst recording his findings and
passing order of conviction.
10. Acquittal of accused : [Section 232]
The Judge then would hear the Prosecution as well as the accused; and thereafter
if the Judge comes to the conclusion that there are no evidence against the
accused that he has committed the offence, the Judge would acquit him.
What is warrant case ? Explain in detail the trial of warrant case and summons case
and distinguish between them. (Nov-2011, Nov-2012)
What is a warrant case ? What are the types of warrant case ? Discuss in detail the
trial of warrant case. (Apr-2016)
Explain in detail the provisions of the "Trial of Summons cases as Well as Warrant
cases stated in the Cr.P.C. (Oct-2013)
Write short note : Summons case and Warrant case. (Nov-2014)
Discuss : Summons trial cases & warrant trial cases under the provision of Cr. IPC
(Dec-2015)
ANSWER :
Refer :
https://www.lawfinderlive.com/bts4/cripc.htm
https://www.legalbites.in/crpc-notes-trial-in-summons-cases/
http://dpsalegal.com/summons-case-warrant-case/
<for a short note and FLOW CHART, search stages of trial in this doc>
Warrant Case : Trial Procedure :
Outline : [Sec-238 to Sec-250]
Intro
Meaning of warrant case :
A. Trial of warrant case instituted on police report :
1. Sec-238 : Ensure compliance of Sec-207 : Supply of police repo to
accused :
2. Sec-239 : Decide if charges are groundless : examine accused, police report
:
3. Sec-240 : Framing of charges : Confirm jurisdiction of the court :
4. : Sec-240(2) : Explain charges to accused :
5. Sec-241 : Record plea of guilt and decide conviction, if any :
6. Sec-242 : Fix examination of prosecution witnesses :
7. Sec-243 : Written statement on defence : Production of witnesses &
documents :
8. Sec-248 : Judgment : Acquittal or Conviction : Previous conviction :
Sentence hearing : Probation :
B. Procedure of trial of warrant case instituted on complaint :
1. Sec-244 : Hear prosecution : Evaluate evidence, evidences :
2. Sec-245 : Decide if case is made out : Else discharge :
3. Sec-246 : Framing of charges : Confirm jurisdiction of the court :
4. Sec-246(2) : Explain charges to accused :
5. Sec-246(3) :Record plea of guilt and decide conviction, if any :
6. Sec-246(4) : Cross-examination of prosecution witnesses :
7. Sec-247 : Written statement on defence : Production of witnesses &
documents :
8. Sec-246 : Judgment : Acquittal or Conviction : Previous conviction :
Sentence hearing : Probation :
Difference between warrant trial instituted on (i) police report and (ii)
complaint :
Cases instituted on police report, Sec-238 to 243 & Sec-248.
Cases instituted on complaint, Sec-244 to 247 & Sec-248.
1. Sec-249 : IF complainant is absent AND [offence is compoundable or non-
cognizable] THEN discharge :
2. Sec-250 : Compensation for accusation without reasonable cause :
Intro :
The procedure for the trial for warrant cases is dealt with in Ch-19 of CrPC.
Sections 238 to 243 provide procedure in respect of trial of Warrant Cases,
instituted on Police Report
Sections 244 to 247 deal with procedure of Warrant cases instituted on
complaint, and
Sections 248 to 250 deal with the conclusion of warrant case trial.
Meaning of warrant case :
Sec-2(x) :
Warrant case means a case relating to an offence,
punishable with the death, imprisonment for life or imprisonment for term
exceeding 2 years.
A. Trial of warrant case instituted on police report :
In trial of warrant cases instituted on police report, the Magistrate has to follow
the procedure specified in Sections 238 to 243 and Section 248 of the Code.
1. Sec-238 : Ensure compliance of Sec-207 : Supply of police repo to accused :
According to Section 238,
when accused appears or is brought before Magistrate for trial, the
Magistrate shall satisfy himself that he has complied with provisions of
Section 207 of Code
i.e. accused has been supplied with copies of police report and other
documents.
2. Sec-239 : Decide if charges are groundless : examine accused, police report :
The next stage for the Magistrate, as provided by Section 239, shall be
to consider all the documents placed before him under Section 173
and if after
making such examination, if any, of the accused as he considers
necessary
and giving the prosecution an opportunity of being heard,
he considers the charge to be groundless, he shall discharge the accused
and record his reasons for doing so.
In Kanti Bhadra Shah and Other v. State of W.B. AIR 2000 SC 522, Supreme
Court has held that
"If the trial court decides to frame charges there is no legal requirement
that he should pass an order specifying the reasons as to why he opts to do
so.
Framing of charge itself prima facie shows that trial Judge has formed the
opinion upon considering the police report and other documents and after
hearing both the parties that there is ground for presuming that accused
has committed the offence.
It is only where Magistrate decides to discharge the Accused under Section
239 of Code or under Section 245, he is obliged to record his reasons for
discharging the accused.
3. Sec-240 : Framing of charges : Confirm jurisdiction of the court :
As laid down by Section 240, if there is ground for presuming that the accused
has committed an offence,
the Magistrate shall frame a charge against the accused if the following
conditions are satisfied:
(a) the offence is triable as a warrant case,
(b) it is triable by him, and
(c) he can adequately punish the accused.
4. : Sec-240(2) : Explain charges to accused :
Section 240(2) provides that
the charge shall then be read and explained to the accused
and he shall be asked whether he pleads guilty or claims to be tried.
5. Sec-241 : Record plea of guilt and decide conviction, if any :
Under Section 241 the Magistrate has a discretion to convict an accused who
pleads guilty.
The plea of guilty must be clear and unambiguous and must be recorded as
nearly as possible in the very words of the accused.
The recording of the plea of guilty is mandatory.
Conviction based on the alleged plea of guilty
without specifically recording it
invalidates the trial and the conviction based thereon.
6. Sec-242 : Fix examination of prosecution witnesses :
Section 242 lays down that if the accused
(i) refuses to plead, or
(ii) does not plead guilty, or
can also exercise such right to put in written statement under section
233(2) of Code.
8. Sec-248 : Judgment : Acquittal or Conviction : Previous conviction : Sentence
hearing : Probation :
Section 248 which relates to judgment applies alike to police and non-police
cases.
If the Magistrate finds the accused not guilty,
he shall record an order of acquittal,
otherwise he shall sentence him according to law after hearing him on the
question of sentence.
He may not pass a sentence if he
releases the accused on probation of good conduct under Section 360 or
submits the proceedings under Section 325, for a severer punishment which
he himself is not empowered to inflict, to the Chief Judicial Magistrate.
If the accused does not admit his previous convictions, evidence of previous
conviction shall be taken after the Magistrate has convicted the accused.
B. Procedure of trial of warrant case instituted on complaint :
In trial of warrant cases instituted on complaint, the Magistrate has to follow the
procedure specified in Sections 244 to 247 and Section 248 of the Code.
1. Sec-244 : Hear prosecution : Evaluate evidence, evidences :
Section 244 of Code lays down that when in a warrant case instituted
otherwise than on police report, the accused appears or brought before
Magistrate,
the Magistrate shall proceed to
hear the prosecution
and take all such evidence as may be produced in support of prosecution.
exercise his discretion in issuing summons to any of the prosecution
witness directing him to attend or to produce document or other thing.
2. Sec-245 : Decide if case is made out : Else discharge :
Section 245 of Code then provide that if upon taking all 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.
In Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 Supreme
Court held that
"In a warrant case instituted otherwise than on police report "discharge"
charges :
Section 251 of Code says when accused appears or brought before the
Magistrate,
the particulars of the offence of which he is accused shall be stated to him
and he shall be asked whether he pleads guilty or has any defence to make,
but shall not be necessary to frame a formal charge.
In State of Gujarat v. Lalit Mohan 1990 Criminal Law Journal, 2341 it was
observed that
it is not incumbent upon a Magistrate to frame a formal charge in a
summons cases,
but substance of accusation is to be explained, moment the accused is
brought before court.
2. Sec-252 : conviction on admission :
Section 252 of Code then says if the accused pleads guilty,
the Magistrate shall record the plea as nearly as possible in the words used
by accused and may in his discretion, convict him thereupon.
3. Sec-253 : Conviction on plea of guilty in absence of accused in petty cases :
As per provisions of Section 253,
where a summons has been issued under Section 206 and
the accused desires to plead guilty to the charge without appearing before
the Magistrate
he shall transmit to the Magistrate, by post or by messenger,
a letter containing his plea and also the amount of fine specified in the
summons.
The Magistrate may in his discretion
convict the accused in his absence, on his plea of guilty
and sentence him to pay the fine specified in the summons
and the amount transmitted by the accused shall be adjusted towards
that fine,
or where a pleader authorised by the accused in this behalf pleads guilty, on
behalf of the accused
the Magistrate shall record the plea as nearly as possible in the words
used by the pleader
and may, in his discretion convict the accused on such plea and sentence
him as aforesaid.
4. Sec-254(1) : Hear both sides : Take evidence from both sides :
It is provided by Section 254, that
If the Magistrate does not convict the accused under Section 252 or Section
253,
the Magistrate shall proceed to hear prosecution,
and also to hear the accused
and take all such evidence as he produces in his defence.
5. Sec-254(2) : Summon witnesses of prosecution and defence :
The Magistrate may, if he thinks fit, on the application of the prosecution or
the accused,
issue a summons to any witness directing him to attend or to produce any
document or other thing.
6. Sec-254(3) : Deposit cost for summoning witnesses :
The Magistrate may, before summoning any witness on such application,
require that the reasonable expenses of the witness incurred in attending the
purposes of the trial be deposited in the Court.
7. Sec-255(1&2) : Acquittal or conviction : Sentencing :
If the Magistrate, upon taking the evidence, and examining the accused,
finds the accused not guilty, he shall record an order of acquittal.
If the Magistrate convicts the accused he may,
either pass sentence according to law and consider releasing the accused on
probation of good conduct under Section 360
or not pass a sentence if he prefers to submit the proceedings under Section
325, for a severer punishment which he himself is not empowered to inflict,
to the Chief Judicial Magistrate.
8. Sec-255(3) : Decide if accused shall also be convicted for offences not
originally charged :
Sec-255(3) enables the Magistrate to convict the accused of any offence
which from the facts proved or admitted, appears to have committed,
though it is different in its nature from the offence originally charged.
Other provisions related to summons trial :
Sec-257 : Withdrawal of complaint :
If a complainant, at any time before a final order is passed,
satisfies the Magistrate that there are sufficient grounds for permitting him to
withdraw his complaint against the accused,
the Magistrate may permit him to withdraw the same,
and shall thereupon acquit the accused against whom the complaint is so
withdrawn.
Sec-258 : Power to stop proceedings in certain cases AND acquit or discharge :
A warrant case cannot be converted As per Section 259, a summons case can
into a summons case. be converted into a warrant case if the
case relates to an offence that entails
more than 6 months of imprisonment as
punishment and the judge feels that in the
interest of justice it the case should be
tried as a warrant case.
In a warrant case CrPC prescribes two Irrespective of how it was instituted, there
different procedures to be followed by is only one procedure prescribed by the
the magistrate, depending on CrPC for the trial of a summons case.
whether, (i) the case is instituted on a
police report, or (ii) if it is instituted
on other than a police report.
As per S. 241, after the charge is As per S. 252, if the accused pleads guilty,
framed, the accused may plead guilty the magistrate must record the plea of the
and the magistrate may convict him accused and may, in his discretion, convict
on his discretion. him on such plea.
A warrant case may contain charges A summons case cannot have charges that
that reflect a summons case. require a warrant case.
Accused must appear personally. Accused may plead guilty through post,
without appearing personally before the
judge.
In a warrant case, the accused gets In a summons case he gets only one
more than one opportunity to cross- opportunity to cross-examine the
examine the prosecution witnesses. prosecution witnesses.
Write Short Note : Summons case and Summary case (Nov-2012, Nov-2014, Apr-
2016)
ANSWER :
Refer :
http://hanumant.com/CrPC-DifferencesShortNotes.html
<for a short note and FLOW CHART, search stages of trial in this doc>
Intro : [Sec-260 to Sec-265]
Summary Trial are dealt in section 260 -265 of Code of Criminal Procedure, 1973.
Summary trials are,
1. A kind of fast track proceeding where a case is resolved in one sitting.
2. Meant for petty offenses, to reduce the burden of court
Sec-260 : Decide if case is to be tried summarily :
When a case involving the following offenses comes to CJM, MM, and JMFC for
hearing, they have the discretionary power to decide whether they want to try the
case summarily or not.
Which offences can be tried summarily :
Section 260 of code says that Chief Judicial Magistrate, Metropolitan Magistrate
or Magistrate of First class specifically empowered by High Court may try in a
summary way following offences :
(i) Offences not punishable with death or imprisonment for life or for term
exceeding 2 years
(ii) Theft, where the value of property stolen does not exceed Rs 200,
(iii) Receiving or retaining stolen property of value less than Rs. 200.
(iv) Offences of assisting in concealing or disposal of stolen property.
(v) Offences under Sections 454 and 456 of I.P.C. [Lurking house-trespass]
examination of accused,
findings,
sentence,
date of termination of the proceeding.
Sec-264 : In absence of plea of guilt, evaluate evidence & give reasoned judgment :
If the accused does not plead guilty, the judge must record the substance of the
evidence and give reasons for the judgment.
Sec-265 : Records should be in courts language.
Every the such record and judgment shall be in the language of the court.
Government servants can NOT be tried summarily :
In Ram Lochan vs State, 1978, it was held that
although trying a govt. servant summarily is legal,
it should not be done so because upon conviction, govt. servant may lose his
job, which is a serious loss.
Appeal and Revision in Summary Trials :
No appeal lies if only a sentence of fine not exceeding 200/- is awarded.
A revision application would lie to the High Court in such a case.
Discharge Acquittal
Discharge Acquittal
prosecution in this behalf, the Judge offence, the judge acquits the
considers that there is not sufficient ground offender under Section 232.
for proceeding against the accused, he shall However, if the offender is not
discharge the accused and record his reasons acquitted under Section 232, he is
for so doing. permitted to give his defense and
evidence. After hearing the
arguments of both the parties, the
court may acquit of convict the
person under Section 235.
Discharge does not mean that the accused Acquittal means that the accused
has not committed the offence. It just means has been held innocent.
that there is not enough evidence to proceed
with the trial.
If further evidence is gathered later on, the The accused cannot be tried again
accused may be tried again. for the same offence once he has
been acquitted.
3. Conviction :
Difference between (i) Sufficient grounds for commitment, & (ii) Sufficient
grounds for conviction :
Sufficient grounds
Sufficient grounds for commitment
for conviction
Sufficient grounds
Sufficient grounds for commitment
for conviction
Explain : Person once convicted or acquitted, not to be tried for same offence
under Cr.P.C. (Dec-2015)
The judicial procedure cannot be re-initiated against the person who has been
sentenced or acquitted. Explain. (Apr-2016)
ANSWER :
Refer :
https://www.lawctopus.com/academike/autrefois-acquit-autrefois-convict/
Intro :
Autrefois Acquit and Autrefois Convict are the French terms literally meaning
previously acquitted and previously convicted respectively.
These two terms have their origin in the common law where they are accepted as
the pleas of autrefois acquit and autrefois convict and these pleas have the effect
that the trial cannot go ahead due to the special circumstances that these two
pleas depict.
Actually a plea of autrefois acquit means that a person cannot be tried again for
an offence for the reason that he has previously been acquitted in the same offence
and such a plea can be taken or combined with plea of not guilty.
Similarly a plea of autrefois convict means that a person cannot be tried for an
offence for the reason that he has been previously been convicted in an offence
and the same can be combined with the plea of not guilty.
Actually this doctrine in a way is the rule again double jeopardy.
Rule against double jeopardy means that
a person cannot be tried for the same offence once again if he has been either
convicted or acquitted in the trial relating to same offence.
1. Double Jeopardy provision in Indian Constitution :
Protection against double jeopardy has been provided by many countries as a
constitutional right India being one of them.
Let us analyze this Doctrine of Autrefois Acquit and Autrefois Convict in special
reference to Indian context in the light of the provisions of Code of Criminal
Procedure, 1973, Constitution of India and Indian Evidence Act, 1872.
The Constitution of India has provided this protection as a fundamental right under
the Article 20(2).
Art-20(2) :
No person shall be prosecuted and punished for the same offence more than
once.
The principles of autrefois acquit and autrefois convict, was pre-existing in the OLD
CrPC as well as the General Clauses Act, 1897
Both these provisions formed the basis for incorporation of this principle as a
fundamental right when the Constitution was enacted in India, though with some
reservations which limit the ambit and scope of the doctrines.
However, in any circumstance any Constitutional provision will prevail over other
statutes.
Subsequently, the same principle was enacted as section 300 of NEW CrPC 1973.
2. Double Jeopardy provision in CrPC 1973 :
Sec-300 of CrPC : Person once convicted or acquitted not to be tried for same
offence :
(1) A person who has once been tried for an offence and convicted or acquitted
of such offence shall,
while such conviction or acquittal remains in force , not be liable to be tried
again for the same offence,
nor on the same facts for any other offence for which a different charge from
the one made against him might have been made u/s 221(1) or 221(2).
Sec-300 : Case of distinct offence, separate charge : 2nd trial OK
(2) A person acquitted or convicted of any offence may be afterwards tried,
for any distinct offence for which a separate charge might have been against
him at a former trial u/s 220(1) {trial for 1+ offence}.
(3) A person convicted of any offence constituted by any act causing
consequences which together with such act, constituted a different offence from
that of which he was convicted, may be afterwards tried for such last mentioned
offence, if the consequences had not happened, or were not known to the court
to have happened, at the time when he was convicted.
Sec-300 : When previous trial court had NO jurisdiction : 2nd trial OK
(4) A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and
tried for, any other offence constituted by the same acts which he may have
committed if the court by which he was first tried was not competent to try the
offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same
offence except with the consent of the Court by which he was discharged or of
any other Court to which the first mentioned court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General
Clauses Act, 1897 or of section 188 of this code.
Analysis of CrPC provision :
Sec-300 lays down the principle that a person who has been previously acquitted
or convicted in any offence cannot be tried for the same offence again i.e. rule
against double jeopardy.
However this protection is not absolute in nature and this thing becomes clear
from the detailed analysis of the section 300.
An analysis of this section makes it clear that there must be the trial of the
accused, ie hearing and determination on the merits
and for the purpose of the ban to subsequent trial as contemplated by the
section 300(1),
there should have been the trial of the accused
and on previous occasion, he must have been convicted or acquitted.
If there is no trial then the subsequent trial for the same offence is not barred.
held to be barred and the conviction of the accused in the subsequent trial was
set aside.
Discharge vs acquittal :
The person must have been either acquitted or been convicted.
Mere discharge of the accused does not amount to acquittal.
A person is said to be discharged when he is relieved from the legal proceeding
by an order which does not amount to judgement.
Judgement is the final order in a trial terminating either in conviction or acquittal
of the accused.
A person who is in law only discharged may be charged again for the same
offence if some other testimony is discovered against him; however a person
who is acquitted of a charge can never be put on the trial for the same offence.
A discharge leaves the matter at large for all purposes of judicial inquiry and
there is nothing to prevent a Magistrate discharging the accused from inquiring
again into the case.[iv]
However in case where a judgement has been passed by a competent court either
acquitting or convicting the accused,
there so long as the judgement remains in force the person so acquitted or
convicted cannot be tried again for the same offence,
but where such an order or judgement, of acquittal / conciction, has been set
aside by a Court either on appeal or revision,
then such person can again be tried for the same offence because the previous
trial is annulled thereby.
in the High Courts and Court of Sessions the State Government is represented
by Public Prosecutor
and in the Court of Magistrate by the Assistant Public Prosecutor.
Appointment of PP :
The provisions of the Criminal Procedure Code regarding the appointment of Public
Prosecutors are contained in Section 24, which provides as herein under :-
Sec-24 :
(1) For every High Court, the Central Government, or the State Government
shall, after consultation with the High Court, appoint a Public Prosecutor
and may also appoint one or more Additional Public Prosecutors, for
conducting in such Court, any prosecution, appeal or other proceeding on
behalf of the Central Government or State Government, as the case may be.
(2) The Central Government may appoint one or more Public Prosecutors, for the
purpose of conducting any case or class of cases in any district or local area.
(3) For every district, the State Government shall appoint a Public Prosecutor,
and may also appoint one or more Additional Public Prosecutors for the
district :
Provided that the Public Prosecutor or Additional Public Prosecutor appointed
for one district may be appointed also to be a Public Prosecutor or an
Additional Public Prosecutor, as the case may be, for another district.
District Magistrate, in consultation with the Sessions Judge, to prepare a panel of
names :
(4) The District Magistrate shall, in consultation with the Sessions Judge,
prepare a panel of names of persons, who are in his opinion fit to be appointed
as Public Prosecutors or Additional Public Prosecutors for the district.
(5) No person shall be appointed by the State Government as the Public
Prosecutor or Addl. Public Prosecutor for the district unless his name appears
in the panel of names prepared by the District Magistrate under sub-section
(4).
Cadre of Prosecuting Officers :
(6) Notwithstanding anything contained in sub-section (5) where in a State
there exists a regular Cadre of Prosecuting Officers, the State Government
shall appoint a Public Prosecutor or an Addl. Public Prosecutor only from
among the persons constituting such Cadre :
Provided that where, in the opinion of the State Government, no suitable
person is available in such Cadre for such appointment, the Government may
appoint a person as Public Prosecutor or Addl. Public Prosecutor, as the case
may be from the panels of names prepared under sub- section (4).
Minimum experience required :
case/suit is indigent, because audi alterm partem is one of the principles of natural
justice, which cannot be departed from. Following are some differences :
a) A person is invariably defending himself against the state in criminal
proceedings,
whereas in civil proceedings the person may very often be invoking the legal
process for relief.
b) Disputes arising in criminal jurisdiction are bound by rigid rules of procedure.
The problems of the civil legal system have inspired innovative methods of
dealing with the problem of access to the system. It has inspired the growth of
altemative dispute resolution mechanism.
c) In criminal cases, a skilled lawyer becomes a necessity for providing procedural
fairness. Much of a criminal trial is taken up with issues of procedure and proof
which are beyond the grasp and understanding of the accused.
With regard to participation of lawyers in the system, civil legal aid lends itself to
co-option of paralegals that can be trained to provide help this area.
d) Accessibility of lawyers : In criminal cases involving clients held in custody would
require lawyers to visit their clients to seek instructions. In practice, however, this
does not easily happen because visits by lawyers to jails are infrequent and still
made difficult by the rules in prison manuals. Hence, in criminal cases there is
STRONG need for legal aid.
In civil cases, litigants are free to choose and meet with their friends, relatives
and lawyers to seek guidance.
e) In criminal proceedings, the Court is under obligation to provide all accused
with a competent lawyer. Criteria for legal aid are not hard and fast.
While in civil proceedings, there are three criteria namely,
the economic status (means) test,
the prima facie test and
the interests of justice test, to determine eligibility for legal aid.
Legal Aid under CPC :
<read from study notes of 301 Civil Procedure Code (CPC) & Limitation>
Legal Aid under CrPC :
Entitlement to Free Legal Aid :
Sec-12 of the Legal Services Authorities Act, 1987 provides for free legal
aid to people falling under following categories :
A member of a SC/ST;
A victim of trafficking in human beings or beggar
A woman or a child;
A person with disability
aforesaid duty and obligation. Any failure to fully discharge the duty would
amount to dereliction in duty and would make the concerned magistrate liable
to departmental proceedings.
Obligation of judicial officers of the state :
Every judicial officer of the State is under a legal obligation to see that this
benefit of free legal services is received by litigant who is entitled to such
benefit under Section 12 of the Act.
If it is not taken this way, the very purpose and object of enacting this
benevolent provision shall be frustrated.
Obligation of members of the Bar Council :
The members of the Bar being the Officer of the Court are also equally
concerned to see that this legal right is being received by the litigants of the
categories as enumerated under Section 12 of the Act, 1987.
It is the duty of the members of the Bar as well as the judicial officers to
effectively implement this Act and to provide the benefits of this Act in reality
Implications for absence of legal representation :
Representation by an advocate is very essential ingredient of fair trial.
Absence of an advocate vitiates the criminal trial if the case of an accused could
not be properly represented.
If the accused represents his case properly without the assistance of an
advocate then absence of advocate from trial does not vitiate the trial.
In the case of Mohd. Hussain @ Julfiquar Ali Vs. State, the Supreme Court
ordered retrial,
as an accused who was a Pakistani national accused of terrorist act was not
given effective right to legal representation.
Scope of Legal Aid :
The rights of arrested person
to have someone informed about his arrest and
to consult privately with his lawyer are inherent in Article 21 and 22.
Thus the right to consult the lawyer means the right to consult him away from
the hearing of the police.
The right to consult and be defended by a legal practitioner of his choice is
guaranteed with a view to enable the detenue to prepare for his defence.
This right belongs to the arrested person not only at the pre-trial stage, but also
at the trial before a criminal court or before a special tribunal and whether the
arrest is made under the general law or under a special statute.
While, it is settled position of law that to provide Legal Aid to accused persons
without means in all cases tried by a court of session, is a mandatory
constitutional necessity,
it is further necessary that such lawyer should be competent.
Indigence should never be a ground for denying fair trial or equal justice.
Therefore, advocates competent to handle cases should be appointed.
Summary :
It is an obligation of every democratic country that it must protect the rights of
every individual.
The poor has suffered lot of injustices and fallen into deprived or exploited section
of our society.
The poor people need to be made literate and aware about their legal rights so that
they can stand at equal footing with rich litigants.
The Legal Services Authorities Act has to go a long way in solving the problems
of needy litigants and bringing poor person in the forefront.
In State of U.P. v. K.N. Aggerwal, 1973 Cri.L.J. 1196 (SC), it was observed that
Section 306 empowers a Chief Judicial Magistrate or a Metropolitan Magistrate or
Magistrate of first class
to tender pardon to a person who is supposed to have been directly or indirectly
concerned in an offence under investigation or inquiry
on the condition that he makes a full and true disclosure of all the circumstances
within his knowledge in relation to the accused and to the offence."
Sec-307 : At what stage can Court tender pardon ?
Sec-307 :
Court may tender a pardon at any time after the commitment of the case,
but before judgment is passed,
with a view to obtaining at the trial the evidence of any any person supposed to
have been directly or indirectly concerned or privy to any such offence,
tender a pardon on the same conditions as provided under section 306.
What if accomplice conceals or gives false evidence ?
Sec-308(1) :
Where, in regard to a person who has accepted a tender of pardon,
the Public Prosecutor certifies that in his opinion
such person has {either by (i) wilfully concealing anything essential or (ii)
giving false evidence},
not complied with the condition on which the tender was made,
such person may be tried for the offence in respect of which the pardon was so
tendered or for any other offence of which he appears to have been guilty in
connection with the same matter,
and also for the offence of giving false evidence :
Provided that
such person shall not be tried jointly with any of the other accused
Provided further that
such person shall not be tried for the offence of giving false evidence
except with the sanction of the High Court.
(2) Any statement made by such person accepting the tender of pardon and
recorded by a Magistrate under section 164 or by a Court under Sub-section (4)
of section 306 may be given in evidence against him at such trial.
Burden of proof to prove non-compliance to conditions :
u/s 308(3&4), it is prosecutors duty to prove that accomplice did NOT comply with
the condition upon which such tender was made.
In State v. Jagjit Singh, AIR 1989 SC 598 it was observed that,
Court has to consider before trying the approver for the original offence
whether he has some act or omission on his part or failed to comply with the
conditions of pardon,
it is the duty of the prosecutor, to establish that approver has failed to comply
with conditions of pardon either -
(a) by willfully concealing anything essential.
(b) by willfully giving false evidence.
State cannot withdraw the pardon from the approver,
nor approver can cast away the pardon granted to him
till he is examined as a witness by prosecution.
Discuss the provisions of accused persons of unsound mind under CrPC. (Dec-2015)
ANSWER :
Refer :
[Section 328, 328]
Supposing an accused who is lunatic is committed to the court of Session, without
there being any inquiry,
such committal is illegal because it is for the committal Magistrate himself to
conduct an inquiry under Section 328 of the Code.
But when accused person who is of unsound mind is committed to the court of
Session, Sessions Judge has to follow procedure as provided u/s 329 of the Code.
confirmation.
ANSWER :
Refer :
http://thepracticeoflawjalan.blogspot.in/2012/04/crpc-trial-before-sessions-
court.html
Module-4 :
4) Appeals, Reference, Revision, Transfer of cases, Provisions relating to Bail and
Bonds and Miscellaneous provisions
4.1) Appeal: Concept - creation of statute - cannot be filed as a matter of right
4.1.1) Kinds of Appeal:
4.1.1.1) Against conviction
4.1.1.2) For enhancement of sentence
4.1.1.3) Against acquittal order: By Public Prosecutor & by private
person
4.1.1.4) For compensation to victims
4.1.2) When appeal is not permissible
4.1.3) Special Right to prefer appeal (Appeal in non-appealable cases)
4.1.4) Powers of the Appellate Court
4.2) Revision : Scope and purpose
4.2.1) When permissible?
4.2.2) Revisional Courts & their Powers
4.3) Reference : purpose and significance
4.4) Execution, Suspension, Remission and Commutation of Sentences
4.5) Provisions relating to Bail and Bonds,
4.5.1) Bail in Bailable and Non-bailable Offences & related provisions
4.5.2) Anticipatory Bail
4.5.3) Approach of the Apex Court in granting Bail
4.6) Miscellaneous:
4.6.1) Inherent Powers of High Courts
4.6.1.1) Powers to quash FIR, Criminal Complaints and Criminal
Proceedings
4.6.1.2) Judicial approach and guidelines given by the Apex Court while
exercising quashing powers by High Courts
MODULE-4 QUESTIONS :
right.
Discuss : Kinds of Appeal.
Discuss : (i) When appeal is not permissible, (ii) Special Right to prefer appeal
(Appeal in non-appealable cases).
Explain the provisions of appeals and discuss the powers of the appellate courts.
(Dec-2015)
Discuss : Transfer of cases.
Explain in detail the provisions of Appeal and Revision stated in the Cr.P.C. (Oct-
2013)
Discuss : Power of Court to make order of appeal and revision. (Nov-2011)
Write short note : Powers of Appellate Court. (Apr-2016)
Discuss : (i) Revision : Scope and purpose, (ii) Revisional Courts & their Powers.
Write Short Note : Reference and Revision (Nov-2012, Nov-2014, Dec-2015, Apr-
2016)
Explain in detail the provisions of Appeal and Revision stated in the Cr.P.C. (Oct-
2013)
Discuss : Power of Court to make order of appeal and revision. (Nov-2011)
Discuss : Reference : purpose and significance.
Write Short Note : Reference and Revision (Nov-2012, Nov-2014, Dec-2015, Apr-
2016)
Discuss the provision relating to execution, suspension, remission and
commutation of sentences. (Nov-2011)
Discuss in detail : Provisions relating to Bail and Bond s.
Discuss all provisions relating to an accused person on bail in bailable offence.
(Nov-2011)
Discuss the provisions regarding release of accused person on on bail in non-
bailable offence. (Nov-2012)
Discuss in detail the provisions relating to an Accused Release on Bail in Non-
Bailable offences. (Oct-2013)
When an accused can be released on bail in non-bailable offence ? Explain. (Nov-
2014)
In non-bailable offences on which ground court grant the bails ? (Dec-2015)
Discuss all provisions relating to an accused person regarding his release on bail in
non-bailable offences. (Apr-2016)
Write short notes : Regular bail Sec-439. Anticipatory Bail. (Nov-2011)
Write Short Note : Anticipatory Bail (Nov-2012)
Explain in detail : Provisions of Anticipatory Bail (Oct-2013)
MODULE-4 ANSWERS :
any other cases, on trial held by any court other than High Court, direct the public
prosecutor to present an appeal against conviction on the ground of inadequacy.
High Court shall not enhance the sentence except after giving an accused
reasonable opportunity of showing cause against such enhancement.
Sec-378 : Appeal in case of acquittal :
Section 378 provide that
State or Central Government may direct Public Prosecutor
to present appeal to the High Court
from an original or appellate Order of acquittal by any courts subordinate to
it.
Provision to discourage frivolous & vexatious appeals :
Where any application for the exercise of the powers conferred by this section is
dismissed,
the Supreme Court may if it is of opinion that the application was frivolous or
vexatious,
order the applicant to pay by way of compensation to any person, who has
opposed the application,
such sum not exceeding one thousand rupees as it may consider
appropriate in the circumstances of the case.
Transfer of cases :
Sec-406 : Supreme Courts power to transfer cases and appeals :
Whenever it is made to appear to the Supreme Court that
an order under section 406 of the Code of Criminal Procedure is expedient for
the ends of justice,
it may direct that any particular case or appeal be transferred
from one High Court to another High Court
or from a Criminal Court subordinate to one High Court
to another Criminal Court subordinate to another High Court.
Note that,
the Supreme Court may act under section 406, Criminal Procedure Code,
only on the application of the Attorney-General of India or the Advocate-
General of the State,
and supported by affidavit or affirmation.
Sec-406(1) : Power of High Court to transfer cases and appeals :
Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court
subordinate thereto, or
Discuss : (i) Revision : Scope and purpose, (ii) Revisional Courts & their Powers.
Write Short Note : Reference and Revision (Nov-2012, Nov-2014, Dec-2015, Apr-
2016)
Explain in detail the provisions of Appeal and Revision stated in the Cr.P.C. (Oct-
2013)
Discuss : Power of Court to make order of appeal and revision. (Nov-2011)
ANSWER :
Refer :
https://www.lawfinderlive.com/bts4/cripc.htm
CrPC Provisions for Revision : Revisional Courts and their Powers :
Sections 397 to 405 provide for revision.
Section 397(1) confer concurrent jurisdiction to High Court and Court of Session in
the matter of revision.
Sec-397 : Revision :
Section 397(1) of Criminal Procedure Code empower the High Court and the
Session Judge
to call for records of any inferior criminal court
and examine them for the purpose of satisfying themselves
as to whether sentence, finding or order of such inferior court is legal,
correct.
HC may also, direct,
the execution of the sentence or order be suspended
and if the accused is in confinement that he be released on bail or on his own
bond pending the examination of the record.
In Munna Devi v. State of Rajasthan AIR 2002 SC 107, it was observed that
Revisional Powers can be exercised only when
it is shown that there is a legal bar against
the continuance of criminal proceedings or
framing of charge
or facts as stated in FIR even if taken at the face value and accepted in their
entiretly,
do not constitute the offence for which accused has been charged.
Revisional Court can not appreciate the facts in the manner as Trial Court or
appellate courts are expected to do.
Revisional jurisdiction in case of interlocutory orders :
Section 397(2) :
Revisional Jurisdiction shall not be exercised in respect of interlocutory orders
passed in any appeal, inquiry, trial or other proceeding.
In V.C. Shukla v. State through C.B.I. AIR 1980 SC 962 Supreme Court
observed that
the words `interlocutory order used in Section 397(2) relates to various stages
Provided that,
the Court may direct that any person under the age of sixteen years or any
woman or any sick or infirm person accused of such an offence be released on
bail:
Provided further that,
Bail can not be denied
for the mere fact that an accused person may be required for being
identified by witnesses during investigation,
IF he is otherwise entitled to be released on bail and gives an undertaking
that he shall comply with directions given by the Court.
Provided also that if the offence alleged to have been committed by a person is
punishable with death, imprisonment for seven years or more,
no such person shall be released on bail by the Court under this sub-section
without giving an opportunity of hearing to the Public Prosecutor
Sec-437(2) Bail at which stage ? :
If it appears to such officer or Court at any stage of the investigation,
inquiry or trial,
that there are no reasonable grounds for believing that the accused has
committed a non-bailable offence,
but there are sufficient grounds for further inquiry into his guilt,
the accused shall be released on bail, or, at the discretion of such officer or
Court, on the execution by him of a bond without sureties for his
appearance.
Note :
A police officer or the court may also release a person from custody if he feels
that there are any special reasons. But he must record his reasons in writing.
If the investigation is not done within 24 hours, the arrested person must be
bought before the court and if required, the police must make a case to extend
the detention.
The court may extend the detention by 15 days. However, the detention cannot
extend more than 60 days (or 90 days, if the offence is punishable by death or
imprisonment for life), after which the accused must be released on bail.
This provision applies for bailable as well as non-bailable offence.
Sec-437(3) : Conditions on Bail :
if any person accused of an offence punishable with 7 yrs or more of
imprisonment is released on bail, the court may impose any condition on the bail
to ensure that the person will attend the court in accordance with the bond
executed by him,
or to ensure that the person will not commit a similar offence or otherwise in
interest of justice.
or to ensure that such person will not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts of the
case or tamper with the evidence.
The court may also impose, in the interests of justice, such other conditions as it
considers necessary.
Sec-437(5) and Sec-439 : Cancellation of Bail :
There was no provision for cancellation of the bail in the OLD code
SC in Talib's case (AIR 1958) held the absence of such provision as a lacuna
and recognized the power of High Court of cancellation of bail.
Sec-437 (5) :
any Court which has released a person on bail under section 437(1) or 437(2),
may direct that such person be arrested and commit him to custody.
Note : Only the court that has given the bail can cancel it. Thus, a bail given by
a police officer cannot be canceled by a court under this section.
For cancellation of such bail, the special power of High Court or Court of
Session under Section 439 has to be invoked.
Sec-437(6) : Bail DURING the course of trial :
If, in any case triable by a Magistrate, the trial of a person accused of any non-
bailable offence
is not concluded within a period of sixty days from the first date fixed for
taking evidence in the case,
such person shall, if he is in custody during the whole of the said period,
be released on bail to the satisfaction of the Magistrate, unless for
reasons to be recorded in writing, the Magistrate otherwise directs.
Sec-437(7) : Bail AFTER conclusion of trial :
At any time, after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered,
IF the Court is of opinion that there are reasonable grounds for believing that
the accused is not guilty of any such offence,
it shall release the accused, if he is in custody, on the execution by him of a
bond without sureties for his appearance to hear judgment delivered.
Guidelines for Regular Bail : Supreme Court, in the case of Narsimhulu, AIR
1978, has given a set of considerations that must be given while giving bail in case
of non-bailable offences. These are -
the nature of the crime
the nature of the charge, the evidence, and possible punishment
In general, there is no right of appeal against the decision of refusing the bail.
However, a person can always file for Special Leave Petition to High Court or
Supreme Court against such decision.
Some acts, such as POTA, explicitly grant a right to appeal against a decision of
refusal of bail to special courts.
Sec-441 : Provisions relating to Bond :
Sec-441 : Definition :
Before any person is released on bail or is released on his own bond, a bond for
an appropriate sum of money shall be executed by the person
and if required by one or more sureties,
stating that the person will appear before the court at the given date and time
mentioned in the bond.
In other words, a bonds provides a kind of monetary guarantee that the person
being released will appear before the court as and when required.
General Provisions of Bonds -
Section 440 - Amount of bond should not be excessive. High Court and Court of
Session have power to reduce the amount.
Section 441 - Court may accept affidavits in proof of fitness of sureties or it may
also hold an inquiry to determine the sufficiency of sureties.
Section 441 A - Every surety must state the number of person he is currently
standing surety for.
Section 442 - As soon as the bond is executed, the person should be released.
Section 443 - If through mistake, fraud or otherwise, insufficient sureties have
been accepted or if they afterwards become insufficient, the court may issue a
warrant of arrest and may ask him to provide fresh sureties.
Section 444 - A surety can apply to be discharged from the bond, in which case,
the person for whom the surety is given will be arrested and asked to provide
new surety.
Section 445 - A court may permit a person to deposit money instead of
executing a bond with or without sureties.
Section 446 - If a bond is forfeited, the sureties may be asked to pay the
penalty.
Section 446 A - When a bond for appearance of a person is forfeited for a breach
of condition, the bond executed by the person and the sureties shall stand
canceled.
Section 447 - If a surety becomes insolvent or dies, the court may ask for new
sureties.
Section 448 - If the person from whom bond is required is minor the court may
Write short note : Inherent powers of High Court (Nov-2012, Nov-2014, Dec-2015,
Apr-2016)
Discuss : Powers to quash FIR, Criminal Complaints and Criminal Proceedings.
Discuss : Guidelines given by the Apex Court while exercising quashing
powers by High Courts.
ANSWER :
Refer :
http://www.livelaw.in/inherent-powers-high-court-sec-482-cr-p-c/
Exercise of power under Section 482 Cr.P.C. is the exception and not rule . Section
482 CrPC envisages three circumstance under which the inherent jurisdiction may
be exercised, namely :-
i) to give effect to an order under the Cr.P.C.
ii) to prevent abuse of the process of court , and
iii) to otherwise secure the ends of justice.
Eventhough the inherent jurisdiction of the High Court under Section 482 is very
wide, following conditions apply,
It is to be exercised ex debito justitiae to do real and substantial justice for the
administration of which alone courts exist.
It has to be exercised sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the section itself.
It cannot also be invoked if its exercise would be inconsistent with any of the
specific provisions of the Code.
It is only if the matter in question is not covered by any specific provision of
the Code that Section 482 can come into operation,
subject further to the requirement that the exercise of such power must
serve either of the three purposes mentioned in the said section.
Which courts have inherent powers to do mould justice ?
Courts subordinate to the High Court have no inherent power under Sec. 482
Cr.P.C. or otherwise.
A Magistrate has no inherent power to restore a complaint dismissed for default.
As soon as the complaint is dismissed the Magistrate becomes functous officio and
has no longer any power to rehear the complaint.
A power to restore a complaint dismissed for default by the Magistrate is available
only to the High Court.
All Courts, whether civil or criminal, possess, in the absence of any express
provision, as inherent in their constitution.
Abuse of Sec-482 provision to quash FIR :
If information regarding the commission of a cognizable offence is made to the
officer in charge of a Police Station
he has no option except to register the F.I.R. and commence investigation,
UNLESS, it is a case of matrimonial/ family disputes, commercial offences,
medical negligence cases, corruption cases,
wherein preliminary inquiry is done before registration of FIR.
The purpose of lodging an F.I.R. statement is only to set the criminal law in motion.
Thus, an F.I.R. cannot be placed on the same pedestal as the charge sheet
(Police Report) or a complaint which alone are ordinarily the documents of
illustration wherein the extraordinary power under Article 226 or inherent power
under Section 482 can be exercised by the High Court to prevent abuse of process
of any court or to secure justice :
1. Where the allegations in the FIR/ complaint, even if they are taken at their
face value do not prima facie constitute any offence against the accused.
2. Where the allegations in the FIR or other materials do not constitute a
cognizable offence justifying an investigation by the police under Section 156(1)
of the code except under an Order of a Magistrate within the purview of Section
155(2).
3. Where the uncontroverted allegations in the FIR/complaint and the evidence
collected thereon do not disclose the commission of any offence.
4. Where the allegations in the FIR or other materials do not constitute a
cognizable offence but constitute a non- cognizable offence to which no
investigation is permitted by the police without Order of a Magistrate under
Section 155(2).
5. Where the allegations are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused.
6. Where there is an express legal bar in any of the provisions of the Code or
statute concerned (under which the proceeding is instituted) to the institution
and continuance of the proceedings
or where there is a specific provision in the code or in the statute concerned,
providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide intention
and/or where the proceeding is maliciously instituted with an ulterior motive for
wrecking vengeance on the accused with a view to spite him due to private and
personal vengeance.
The Courts have been following these in dealing with requests for quashing criminal
proceedings.
The following principles in relation to the exercise of the inherent power of the High
Court have been followed ordinarily and generally, almost invariably, barring a few
exceptions :
A. That the power is not to be resorted to if there is a specific provision in the
Code itself for the redress of the grievance of the aggrieved party;
B. That it should be exercised very sparingly to prevent abuse of process of any
court or otherwise to secure the ends of justice;
C. That it should to be exercised as against the express bar of law engrafted in
any other provision of the Code.
Conditions for Use of Inherent Power : There are several conditions laid down by
various cases that indicate the circumstances under which this inherent power may be
(2) CrPC cannot be circumvented by invoking the inherent powers under Section
482.
But nothing in the Code, not even Section 397 can affect the amplitude of the
inherent power preserved in Section 482.
Where the impugned interlocutory order clearly brings about a situation which is an
abuse of the process of the court
then for the purpose of securing the ends of justice interference by the High
Court is absolutely necessary and nothing contained in Section 397 (2) can limit
or affect the exercise of the inherent power of the High Court.
Whether the inherent power can be exercised by a HC over a court which is not
subordinate to such HC ? (territorial jurisdiction of HC) :
The jurisdiction of the High Court is confined only to the Courts subordinate to it in
the State for which such High Court has been constituted.
A matter pending in a Court under the jurisdiction of another High Court cannot be
quashed by a HC in exercise of its inherent power under Section 482 Cr.P.C.
Effect of delay : Limitation Act :
Relief under Section 482 is not barred by any limitation since the power is
conferred to secure the ends of justice.
Hence, the mere fact that revision petition was filed at a belated stage cannot
provide legality to an order which is patently illegal or suffers from the abuse of
process of Court.
Conclusion :
Section 482 CrPC has a very wide scope and its really important for the courts to
use it properly and wisely.
Many a time it has been observed that when there is an issue of any money
matter, the petitioner instead of filing a civil suit files an FIR against the other
person just to harass him.
In such cases it becomes very important for the High Courts to quash such
complaints as it leads to the abuse of the process of the lower courts.
This section would enable the courts for providing proper justice and also should be
exercised to stop the public from filing fictitious complaints just to fulfil their
personal grudges.
Suggested Readings :
Retanlal & Dhirajlal , Code of Criminal Procedure, Lexis Nexis -
Butterworths Wadhwa, Nagpur
Chandrasekharan Pillai (Ed), Kelkar Lectures on Criminal Procedure, Eastern, Lucknow.
Principles, Commentaries on the Code of Criminal Procedure, 2 Vol., Universal
Woodroffe : Commentaries on Code of Criminal Procedure, 2 Vol, Universal
Chandrasekharan Pillai (Ed), Kalkar's Outlines of Criminal Procedure,
Eastern, Lucknow.
AIR's Criminal Major Act, AIR, Nagpur
R.V. Kelkar, Criminal Procedure, Eastern Book Co.
C. K. Thakkar, Criminal Procedure Code, Eastern Book Co.
S. N. Mishra, Code of Criminal Procedure, 1973 with Probation of Offenders Act and
Juvenile Justice (Care & Protection of Children) Act, 2000, Central Law Publication
D. A. Sen, Criminal Major Act, Bharat Publication