Criminal Procedure CodeFrequently Asked Questions on Criminal Procedure Code
(i) The preliminary inquiry which precedes the trial by Court of Session, known as "Committal proceedings" was abolished.
(ii) the scope of summary trials was widened by including offences punishable with imprisonment upto one year instead of six months.
(iii) the power of revision against "interlocutory orders" was taken away.
(iv) the provisions for compulsory stoppage of proceedings by subordinate court on mere intimation from a party of his intention to move a higher court for transfer of the case was omitted.
(v) Provision was made for service of summons by registered post in certain cases.
(vi) Provisions for legal aid to indigent persons were made.
(vii) Courts have been empowered to order for payment of compensation by accused to victims of crimeScope and Object of Code The object of the Criminal Procedure Code is to provide a machinery for the punishment of offenders against the sub stantive criminal law. It prescribes the procedure for the trial of offences which the Indian Penal Code defines. Section 4 of this Code provides that all offences under the Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions of this Code. It also provides that offences under a law other that the Indian Penal Code will also be tried according to the provisions of the Procedure Code, but subject to any provision in that other law in regard to investigation, inquiry or trial [Section 4(2)]. The Penal Code is thus the substantive law, of which the Procedure Code furnishes the adjective law to put in force its provisions. The Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines in accord with our notions of natural justice. In Wilie Staney v. State of M.P., AIR 1956 SC 116, it was observed "The object of code is to ensure that accused person gets full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice, under the code as in all procedural laws, certain things are regarded as vital. Disregard of provisions of that nature is fatal to trial and at once invalidates the conviction. Other are not vital and what ever the irregularity, they can be cured. Chapter 45 of the code has carefully classified certain kinds of errors and expressly indicates how they are to be dealt with.
(a) For trial of Warrant Case by Magistrate two procedures are prescribed. One is adopted by Magistrate in cases instituted on Police report (Sections 238 to 243 and 248 Cr.P.C.) and other is for case instituted otherwise than on police report ( Sections 244 to 250 Cr.P.C.). Whereas, there is only one procedure prescribed for trial of Summons Cases (Sections 251 to 259).
(b) Trial of Warrant Cases as Summons Cases is an irregularity which vitiates the trial if prejudice is caused to accused. But trial of Summons Cases as Warrant Cases is only curable irregularity within the meaning of Section 465 of Code.
(c) Where a Warrant Case is tried as Summons Case and accused is acquitted, then Order of acquittal will operate as discharge under Section 245 and where a summon case is tried as a Warrant Case and accused is discharged under Section 245, it will operate as Order of acquittal.
(d) In a Warrant Case, framing of charge is necessary, whereas in Summon Cases framing of charge against accused is not necessary.
(i) Courts of Session;
(ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
(iii) Judicial Magistrates of the second class; and
(iv) Executive Magistrates.Then Section 7 of the Code says that every State shall consist of Session division and each Session division, for the purpose of this Code, shall be district or consist of districts. In substance provision under section 7 is the same as was provided in old code but as a result of separation of judicial functions of magistrate from those of executive consequential changes were brought. Then Section 8 of code says that State Government may by notification declare any area in the State, comprising a city or town whose population exceeds one million shall be metropolitan area and city of Ahmedabad declared to be metropolitan area. State Government have also been empowered to extend, reduce or alter the limits of metropolitan area. Section 9 of Code says -
(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.
(5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by a Chief Judicial Magistrate, in the sessions division; and every such Judge or Magistrate shall have jurisdiction to deal with any such application.
(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witness to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the cases or the examination of any witness or witnesses therein.So Section 9 deals with the power of State Government to establish Courts of Sessions and the power of High Court to appoint judges thereto and to direct at what places such courts shall hold its sittings. The State Government is bound to establish a Court of Session for every Sessions division then section 10 declares that all Assistant Sessions Judges shall be subordinate to Sessions Judge, who will time to time make rules as to distribution of business among such Assistant Sessions Judges. Then Section 11 provides -
(1) In every district (not being a metropolitan area), there shall be established as many Courts of Judicial Magistrates of the first class and of the second class, and at such places, as the State Government may, after consultation with the High Court, by notification, specify:
Provided that the State Government may, after consultation with the High Court, establish, for any local area, one or more Special Courts of Judicial Magistrates of the first class or of the second class to try any particular case or particular class of cases, and where any such Special Court is established, no other court of Magistrate in the local area shall have jurisdiction to try any case or class of cases for the trial of which the such Special Court of Judicial Magistrate has been established.
(2) The presiding officers of such Courts shall be appointed by the High Court.
(3) The High Court may, whenever, it appears to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court.The Section 12 says that in every district (not being a metropolitan area) High Court shall appoint a Judicial Magistrate of first class to be Chief Judicial Magistrate and Additional Chief Judicial Magistrate and Sub- divisional Judicial Magistrate. Then Section 13 of Code says that High Court upon the request of Central or State Government, confer upon any person who hold or has held any post under the Government all or any powers conferrable under the code to a Judicial Magistrate of first or second class for particular case or class of cases provided such person possesses such qualification and experience in legal affairs as High Court requires and such Magistrate shall be called "Special Magistrate" who will be appointed for term not exceeding one year at a time. Then section 14 of Code says subject to control of High Court, Chief Judicial Magistrate may from time to time define local jurisdiction within which Magistrates as appointed under section 11 or 13 may exercise any power as conferred under this Code. Then Section 15 says every Chief Judicial Magistrate shall be subordinate to Sessions Judge and every other Judicial Magistrate, shall be subject to general control of Sessions Judge be subordinate to Chief Judicial Magistrate who shall from title to time make rules or make order as to distribution of business among Judicial Magistrates. Thereafter Sections 16, 17, 18 and 19 deal regarding Metropolitan Magistrate on similar provisions as stated above. Then section 20 says that in every District and Metropolitan area, the State Government may appoint any numbers of Executive Magistrates and one of them shall be appointed as District Magistrate. State Government may appoint an Executive Magistrate as Additional District Magistrate and may place any such executive magistrate in sub-division who shall be called `Sub-divisional Magistrate. Section 21 provides regarding appointment of Special Executive Magistrate. Then Section 22 says that subject to control of State Government, District Magistrate from time to time, may define local limits of jurisdiction of Executive Magistrates. All Executive Magistrates, other than Additional District Magistrate shall be subordinate to District Magistrate who will make rules regarding distribution of work among Executive Magistrate. (Section 23). Power of Courts :- 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. Section 26(a) says 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.Section 26(b) says 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. Then Section 28 says -
"(1) A High Court may pass any sentence authorised by law.
(2) A Sessions Judge or Additional Sessions Judge may pass any sentence authorised by law; but any sentence of death passed by such Judge shall be subject to confirmation by the High Court.
(3) Any Assistant Sessions Judge may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding ten years."Section 29 of Code says -
"(1) The Court of the Chief Judicial Magistrate may pass any sentence authorised by law except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding seven years.
(2) The Court of a Magistrate of the first class may pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding five thousand rupees, or of both.
(3) The Court of a Magistrate of the second class may pass a sentence of imprisonment for a term not exceeding one year, or of fine not exceeding one thousand rupees, or of both.
(4) The Court of a Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial Magistrate and that of a Metropolitan Magistrate, the powers of the Court of a Magistrate of the first class."Then Section 30 says -
(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law :
Provided that the term -
(a) is not in excess of the powers of the Magistrate under Section 29;
(b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29.
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.(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). (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).(7) A person shall be eligible to be appointed as a Public Prosecutor or an Addl. Public Prosecutor under sub-section (1), (2) or (3) or (6), only if he is in practice as an advocate for not less than 7 years. (8) The Central Government or the State Government may appoint for the purpose of any case or class of cases, a person who has been in practice for not less than ten years, as a Special Public Prosecutor. (9) For the purpose of sub-sections (7) and (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after commencement of this Code) service as a Public Prosecutor or as an Addl. Public Prosecutor or as Assistant Public Prosecutor or other Prosecution Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. In State of Rajasthan v. Manohar, 1981(2) SCC 525, it was held that notification by State Government appointing Advocate General is to be public prosecutor under section 24 Criminal P.C. - Another Notification by Advocate General authorising law officers including Deputy Advocate General to act, plead and argue in all matters covered by code - Held - Deputy Advocate General was public servant. In R. Sarala v. T.S. Velu and others, AIR 2000 SC 1731, it was observed that role of Public Prosecutor is inside the court and it commences after investigating agency presents the case in court after completion of investigation. Therefore, involving Public Prosecutor in investigation is injudicious and an investigating officer can not be directed to consult the Public Prosecutor before filling his report under section 173 Cr. P.C. According to section 25 an Assistant Public Prosecutor is appointed to conduct prosecutions in the Courts of Magistrates. They are appointed by the State Government. No police officer is eligible for appointment as such but in a case for which no Assistant Public Prosecutor is available, the District Magistrate may appoint any other person to be Assistant may also be so appointed but such police officer should not be below the rank of an Inspector or and he should not have participated in the investigation of the case being prosecuted. A new sub-section (1-A) to Section 25 of the Code has been inserted by the Amendment Act, 1978, by which Central Government may also appoint Assistant Public Prosecutors for conducting cases in the Court of Magistrate. In S.B. Shane v. State, AIR 1995 SC 1628, it was observed that according to section 25 there is statutory obligation imposed on the state or Central Government to appoint one or more Asst. Public Prosecutors in every district for conducting prosecutions in the Magistrate Courts and of making such Assit. Public Prosecutors independent of the Police Department by constituting separate cadre of such Asst. Public Prosecutor and creating a separate Prosecution Department and its Head directly responsible to Govt. for such Department's work.
(a) Who in his presence commits a non-bailable and cognizable offence.
(b) Who is a proclaimed offender.Such private person after the arrest, without unnecessary delay shall make over or cause to be made over the person arrested to police officer or take him to nearest police station. Sub-section (2) to Section 43 then provides that if the person so arrested appears to come under the provisions of Section 41 of Code, such police officer shall rearrest him. Section 43(3) says if the police officer has reason to believe that the person arrested has committed a non-cognizable offence provisions of Section 42 would apply if such arrested person refuses to give his name and address or gives a false name and address. In Abdul Habib v. State 1974 Criminal Law Journal 248, it was held that a private person can not arrest any one on mere suspicion or information. The offence must be committed in his view or in his presence. Where therefore an individual seeing a person fleeing with the knife in his hand pursued by others, tries to arrest him his exercise of power of arrest cannot be brought under Section 43. In Directorate of Enforcement v. Deepak Mahajan, AIR 1994 SC 1775, it was observed "The code gives power of arrest not only to a Police Officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. In every arrest, there is custody but not vice-versa and that both the words `custody' and `arrest' are not synonymous terms."
(a) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of having been so concerned.
(b) who has in his possession without lawful excuse the burden of proving which excuse shall lie on such person, any implement of house breaking.
(c) who has been proclaimed as an offender either under this Code or by Order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
(f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union;
(g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable be apprehended or detained in custody in India; or
(h) who, being a released convict, commits a breach of any Rule, made under Sub-section (5) of Section 365 or
(i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition [ Section 41(1)].Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in Section 109 or Section 110 [ Section 41(2)]. When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. Section 42 of the Code.
(1) Every Police Officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrests without warrant any person, other than a person, accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.Section 51 then provide when on personal search of an arrested person contain articles are seized, a receipt showing the seizure of such articles shall be given to that person. Section 53 of Code confers a right upon the investigating agency in respect of medical examination of arrested person for facilitating effective investigation. Then Section 54 of the Code provides: "When a person who is arrested whether on a charge or otherwise alleges, at the time when he is produced before Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do, direct the examination of the body of such person by a registered Medical Practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice. In Mukesh Kumar v. State (Delhi Admn.), 1990 Criminal Law Journal, 1923 it was observed that "In view of Section 54 Cr.P.C. whenever a person after being arrested is produced before Magistrate and alleges at any time during the period of his detention that examination of his body will afford evidence which will disprove his commission of offence, the Magistrate shall direct him to be examined by Medical Practitioner unless Magistrate considers the request as vexatious. Even in cases where accused does not make any prayer it is the duty of the court where such an accused is produced, particularly when he is unassisted by a lawyer to inform him of his right to be medically examined." Then Section 56 of Code provides "A police officer making an arrest without warrant shall without unnecessary delay and subject to provisions of Code as to bail, take or send the person arrested before Magistrate having jurisdiction in the case or before the officer-in-charge of police station." Section 57 also provides that "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not in the absence of a special Order of a Magistrate under Section 167, exceed 24 hours exclusive of the time necessary for journey from the place of arrest to the Magistrate's court." In Joginder Kumar v. State of U.P., AIR 1994 SC 1349, it was observed : No arrest can be made because it is lawful for the Police Officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. Arrest and detention in Police lock-up of a person can cause incalculable harm to the reputation and self esteem of a person. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a Police Officer issues notice to person to attend the Station House and not to leave station without permission would do. Then, there is the right to have someone informed. That right of the arrested person, upon request, to have someone informed and to consult privately with a lawyer was recognised by Section 56(1) of the Police and Criminal Evidence Act, 1984 in England. These rights are inherent in Articles 21 and 22(1)of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, the Supreme Court issued the following requirements :
(1) An arrested person being held in custody is entitled, if he so requests, to have one friend relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where is being detained.
(1) The Police Officer shall inform the arrested person when he is brought to the Police Station of this right.
(3) An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.It shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
If service cannot by the exercise of due diligence be effected as provided in Section 62, Section 63 or Section 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.Service of Summons on Government Employees; Section 66 says services of summon on government employees can be effected either personally or through head of department in which such person is employed. Service of Summons Outside Local Limits :- Section 67 of Code says- When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send such summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served. Then Section 68 says -
(1) When a summons issued by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at, the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by Section 62 or Section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.
(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the Court.Section 69 of Code provide regarding service of summons on witness by Post.
"(1) Every warrant of arrest issued by a court under this code shall be in writing signed by the presiding officer of such court and shall bear the seal of the court.
(2) Every such warrant shall remain in force until it is cancelled by court which issued it or until it is executed."So a warrant may be issued for the attendance of (1) an accused, (2) a person called upon to show cause against a Magistrate's order or (3) a witness subject to provisions of Section 87. Section 71 of Code provides for issue of a bailable warrant but does not empower the court to order the physical delivery of arrested person to another. Then Section 72 says warrant of arrest shall ordinarily be directed to one or more police officers for its execution unless immediate execution is required. Section 73 says Chief Judicial Magistrate or Magistrate of first class, may direct a warrant to any person within his local jurisdiction for arrest of any escaped convict, proclaimed offender or accused or non-bailable offence, who shall acknowledge in writing the receipt thereof and will execute it. Similarly section 74 provide for warrant directed to police officer. In C.B.I. v. Dawood Ibrahim Kasker, AIR 1997 SC 2494, it was observed that section 73 of the Code is of general application and that in course of investigation, a court can issue warrant in exercise of power thereunder to apprehend, inter-alia, a person who is accused of non-bailable offence and is evading arrest, the related question is as to whether such issuance of warrant can before his production before police in aid of investigation.....Since warrant is and can be issued for appearance be for the Court only and not before the police and since authorisation for detention in police custody is either to be given as matter of course not on mere asking of police, but only after exercise of judicial direction based on materials placed before him, so it cannot be said that warrant of arrest under section 73 could be issued by courts solely for production of accused before police in aid of investigation. Execution of warrant of arrest outside the jurisdiction of the court issuing it. - When a warrant is to be executed outside the jurisdiction of the Court issuing it, it may instead of directing it to the police officer forward it by post or otherwise to any Executive Magistrate or District Superintendent of Police or Commissioner of Police within whose jurisdiction it is to be executed. The Executive Magistrate or District Superintendent of Police, or the Commissioner of Police on receiving it shall endorse his name thereon and cause it to be executed [Section 78] The police-officer to whom the warrant has been directed shall go and get the endorsement of the Executive Magistrate or the concerned officer in charge of the police-station unless, delay in such endorsement may prevent execution, and then execute the warrant. After the arrest, the arrested person will be produced before the Magistrate in whose jurisdiction the arrest has been made. Further the Court issuing a warrant under section 78(1) shall forward along with the warrant the substance of the information against the person to be arrested together with such documents, if any, as may be sufficient to enable the Court acting under section 81, Cr.P.C., to decide whether bail should not be granted to the person. The person so arrested shall be taken before the Magistrate, District Superintendent of Police or Commissioner of Police within whose jurisdiction the arrest was made, unless -
(1) the Court issuing the warrant is within thirty kilometers of the place of arrest ;
(2) the Court issuing the warrant is nearer than they are ; or
(3) security is taken under section 71.If the arrested person is taken to Magistrate, District Superintendent of Police or Commissioner of Police, they shall direct his removal in custody to the Court issuing the warrant, but if the offence is bailable, and the arrested person is ready to give bail, he shall be released on bail and the bond shall be forwarded to the Court which issued the warrant.
"82(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.
(2) The proclamation shall be published as follows:
(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous places of such town or village;
(c) a copy thereof shall be affixed to some conspicuous part of the Court house;
(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides
(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of Sub-section (2), shall be conclusive evidence that the requirements of this Section have been complied with, and that the proclamation was published on such day."So Section 82 of the code provides that if any court had reason to believe that any person against whom a warrant had been issued by it, had absconded or was concealing himself so that such warrant could not be executed, such court may publish a written proclamation requiring him to appear at specified place and at specified time not less than 30 days from date of publishing such proclamation. In Devender Singh v. State of U.P. 1993(2) Crimes 728 Allahabad High Court has observed:
"The words" has absconded or is concealing himself so that such warrant can not be executed" in Section 82 of Code are significant. Every person who is not immediately available can not be characterised as an absconder. The Court has to record its satisfaction that the accused has absconded or is concealing in order to avoid execution of the warrant. The provisions of Section 82 requires that the court must in the first instance, issue a warrant and it must put down its reason for believing that the accused is absconding or concealing himself.
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. (2) Such order shall authorise the attachment of any property belonging to such person within the district in which it is made, and it shall authorise the attachment of any property belonging to such person within the district when endorsed by the Magistrate or Chief Metropolitan Magistrate within whose district such property is situated. (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 or to any one on his behalf; or
(d) by all or any of the two of such methods, as the Court thinks fit.(4) If the property ordered to be attached is immovable property, the attachment under this Section shall, in case of land, paying revenue to the State Government, be made through Collector of District in which the land is situate, and in all other cases :
(e) by taking possession; or
(f) by the appointment of receiver; or
(g) by an order in writing prohibiting the payment of rent or delivery of property to the proclaimed person or to anyone on his behalf; or(5) If the property ordered to be attached consists of livestock or is of a perishable nature the Court may, if it thinks it expedient, order immediate sale thereof, and in such case the proceeds of sale shall abide the Order of the Court. (6) The powers, duties and liabilities of a receiver appointed under this Section shall be the same as those of a receiver appointed under the Code of Civil Procedure, 1908. 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, 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.
Provided that any claim preferred or objection made within the period allowed by this sub-section may, in the event of the death of the claimant or objector, be continued by his legal representative.(2) Claims or objections under sub-section (1) may be preferred or made in the Court by which the order of attachment is issued, or, if the claim or objection is in respect of property attached under an order endorsed under sub-section (2) of section 83, in the Court of the chief Judicial Magistrate of the district in which the attachment is made. (3) Every such claim or objection shall be inquired into by the Court in which it is preferred or made :
Provided that, if it is preferred or made in the Court of a Chief Judicial Magistrate, he may make it over for disposal to any Magistrate subordinate to him.(4) Any person whose claim or objection has been disallowed in whole or in part by an order under sub-section (1) may, within a period of one year from the date of such order, institute a suit to establish the right which he claims in respect of the property in dispute; but subject to the result of such suit, if any, the order shall be conclusive." And Section 85 of code says :-
"(1) If the proclaimed person appears within the time specified in the proclamation, the Court shall make an order releasing the property from the attachment.
(2) If the proclaimed person does not appear within the time specified in the proclamation, the property under the attachment shall be at the disposal of the State Government; but it shall not be sold until the expiration of six months from the date of the attachment and until any claim preferred or objection made under section 84 has been disposed of under that section, unless it is subject to speedy and natural decay, or the Court considers that the sale would be for the benefit of the owner; in either of which cases the Court may cause it to be sold whenever it thinks fit.
(3) If, within two years from the date of the attachment, any person whose property is or has been at the disposal of the State Government, under sub-section (2), appears voluntarily or is apprehended and brought before the Court by whose order the property was attached, or the Court to which such Court is subordinate, and proves to the satisfaction of such Court that he did not abscond or conceal himself for the purpose of avoiding execution of the warrant, and that he had not such notice of the proclamation as to enable him to attend within the time specified therein, such property, or, if the same has been sold, the net proceeds of the sale, or, if part only thereof has been sold, the net proceeds of the sale and the residue of the property, shall, after satisfying therefrom all costs incurred in consequence of the attachment, be delivered to him."
Q. 14 (a) When can warrant be issued by a court in lieu of summons ? (b) Describe the powers of a court to take bond for appearance from a person who is present before the court and for whose appearance such court is empowered to issue summons or warrant. (c) Can a person who has filed a bond be arrested ? if so, under what circumstances ?
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.
(b) Section 88 of the Code of Criminal Procedure empowers the Court to take bond for appearance. It lays down that when any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.
(c) Section 89 of the Code of Criminal Procedure enacts that when any person who is bound by any bond taken under this Code to appear before a Court, does not appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him. Section 89 has reference to the case of a person who is bound by a bond to appear in the court. It provides for a warrant only in case the person does not appear at the time when he is bound by the bond to appear; but it does not apply to a case where prior to the time for appearance, arrest by warrant is sought to be effected. Such a case falls under Section 87. If the accused released on bail, by his repeated absence on the dates fixed for hearing, hinders the case being proceeded with, it is open to the trial magistrate to apply this Section . When the magistrate cancels the bail bond of the person accused of a bailable offence it is within his right to cause his rearrest.
(a) any offence punishable under Chapter VII of the Indian Penal Code (45 of 1860), other than an offence punishable under Section 153-A or Section 153-B or Section 154 thereof;
(b) any offence which consists of, or includes, assault or using criminal force or committing mischief;
(c) any offence of criminal intimidation;
(d) any other offence which caused, or was intended or known to be likely to cause, a breach of the peace.(3) If the conviction is set aside on appeal or otherwise, the bond so executed shall become void. (4) An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revision. The object of an order under section 106 is not to punish but to prevent the commission of offence in future. In Madhu Limay v. S.D.M. Monghys, 1971 Cri.L.J. 1720 (SC). It was observed that in order that Section 106 may apply it is necessary -
(i) that there must be a conviction,
(ii) that the conviction is for one of offences specified in Sub- section (2)
(iii); that such conviction is by one of the courts mentioned in Sub- section (1)
(iv); that reason of conviction of a person his past conducts leads to an apprehension for the future."Then Section 107 of Code deals with security for keeping the peace in other cases. According to Section 107 when a court is informed that the person is likely to (1) Commit a breach of peace, or (2) disturb the public tranquility, the Magistrate may require such person to execute a bond with or without sureties for keeping the peace for a period not exceeding one year. For initiating proceedings under section 107, it is necessary that -
(a) Magistrate should be satisfied that there are sufficient reasons for proceedings &
(b) the Magistrate should record reasons for his satisfaction
(c) issue notice to the person against whom he wishes to proceed to show cause why proceedings under this section be not taken against him.For good behaviour. - Sections 108, 109 and 110 prescribe the circumstances under which persons are required to execute a bond for good behaviour : (1) Section 108 provide that when persons disseminate seditious matter promoting enmity between classes or concerning a Judge acting or purporting to act in the discharge of his official duties amounting to criminal intimidation or defamation. (2) Under Section 109 when a vagrant or suspect person takes precautions to conceal his presence with a view to committing any offence, or cannot give a satisfactory account of himself. (3) Under Section 10, if the person is a habitual offender -- i.e.,
(I) the person is by habit a robber, house-breaker, thief, forger, a receiver of stolen property;
(II) habitually protects or harbours thieves ;
(III) habitually commits kidnaping, abduction, extortion, cheating or mischief,
(IV) habitually commits or attempts to commit or abets the commission of --
(i) any offence under one or more of the Drugs and Cosmetics Act, Foreign Exchange Regulation Act, Prevention of Food and Adulteration Act, Essential Commodities Act, Untouchability (Offences) Act, the Customs Act and Employees Provident Funds Act,
(ii) any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or
(iii) is so desperate hazardous as to render his being at large without security hazardous to the community he may be required to execute a bond for good behaviour.
(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.Section 94 of Code then provides that when District Magistrate or Sub-Divisional Magistrate or Magistrate of First Class has any information or reason to believe that any place is used for deposit or sale of stolen property or objectionable articles to which Sub-section (2) of Section 94 applies, he may by warrant authorise any police officer above the rank of constable, to enter into such place and to search the place and to take into possession of any such stolen property or any objectionable article, found therein and to convey such property or article before Magistrate. Section 97 of Cr.P.C. also empowers any District Magistrate, Sub-Divisional Magistrate or Magistrate of First Class to issue search warrant if Magistrate has reason to believe that any person is wrongfully and unlawfully confined in any place. In V. S. Kuttar Pillai v. Ramakrishna and other AIR 1980 SC 185, it was held that search and seizer pursuant to warrant under Section 93 obtained during investigation is nothing but an integral step in an investigation. Search and seized pursuant to search warrant will not have even the remotest tendency to compel the accused to incriminate himself. Of course issuance of search warrant is a serious matter and it would be advisable not to dispose of an application for search warrant in a mechanical way. Issuance of search warrant being in the discretion of Magistrate it would be reasonable to expect of the Magistrate to give reasons which swayed his discretion in favour of issuing search warrant. Section 165 of Code is another important provision which provides that a police officer making an investigation has reason to believe that anything necessary for the purpose of an investigation may be found in any place within the limits of his police station and such thing in his opinion cannot otherwise be obtained without undue delay, such police officer after recording in writing, his grounds of belief, search or cause the search to be made for such thing and search shall be made in accordance with general provisions as to search contained under Section 100 of Code.
(a) His wife unable to maintain herself.
(b) His legitimate or illegitimate minor child whether married or not, unable to maintain itself.
(c) His legitimate or illegitimate Major child (Not being married daughter) who by reason of any physical or mental abnormality or injury unable to maintain itself.
(d) His father or mother unable to maintain himself or herself.Magistrate upon proof of such neglect or refusal, order such person to make any amount of monthly maintenance allowance for each of the above stated persons. As per the second proviso to section 125 a Magistrate may during pendency of the proceedings regarding monthly allowance for maintenance order for the interim maintenance of wife, child, father or mother. Provided that application for interim maintenance will be disposed of within 60 days from the date of service of notice to the other party. In 1999 Criminal Law Journal 2919, it was held that though proceedings under section 125 are wholly governed by Criminal Procedure Code and application for maintenance is entertained and disposed of by a Magistrate, proceedings are in reality of Civil nature. So very basis of proceedings under Section 125 of code are two fold. Firstly the person from whom Maintenance is claimed must have sufficient means and he neglects or refuses to maintain. Secondly person who claims maintenance must be unable to maintain himself or herself. In Narain Sahu v. Sushama 1992 Criminal Law Journal 2912 it was held that no order for maintenance can be passed under Section 125 unless neglect or refusal to maintain is proved. Neglect or refusal to maintain can even be inferred from conduct. Sub-section (3) of Section 125 of Code then provides that if any person against whom an order has been made, has failed to comply with the order, Magistrate may issue warrant for levying the amount of maintenance in the same manner as provided for levying fines and may sentence the person in default to imprisonment for a term of one month for every breach of order. In Priyal v. Dr.Pradeep Kumar Kamboj, 2000(2) Recent Criminal Reports 217 Minor child was claiming maintenance under Section 125 of code from father who was living in U.S.A. The Punjab and Haryana High Court directed that Magistrate to issue warrant for recovery of amount of maintenance to concerned court in U.S.A. through Ambassador of India in U.S.A. and if father fails to send amount of maintenance then, Magistrate will proceed according to law in this regard. Section 125(4) of code provides that in following circumstances, wife is not entitled to receive maintenance from her husband
(i) If wife is living in adultery
(ii) If wife without any sufficient reasons refuses to live with her husband
(iii) If husband and wife are living separately by Mutual Consent. Second Proviso to Section 125(3) also provides that if husband offers to maintain his wife on the condition of her living with him and she refuses to live with him. Magistrate may after considering the offer, make an order under this Section if he is satisfied that there is just ground for so doing.In Rohtas Singh v. Smt. Ramenderi AIR 2000 SC 952 Supreme Court held that `For the purpose of Maintenance under Section 125 of Cr.P.C., as provided in Explanation (b) to Sub-section (i) of Section 125 `Wife' includes woman who has been divorced or obtained divorce from her husband. So a woman who has been divorced on account of a decree passed under Hindu Marriage Act, continues to enjoy status of `Wife' for limited purpose of Maintenance. Therefore, wife against whom decree for Divorce has been passed on account of her deserting her husband can claim maintenance allowance under Section 125.
"(1) On proof of a change in the circumstances of any person, receiving under section under section 125 a monthly allowance, for the maintenance or interim maintenance, or ordered under the same section to pay a monthly allowance for the maintenance, or interim maintenance to his wife, child, father or mother, as the case may be, the Magistrate may makes such alteration, as he thinks fit, in the allowance for the maintenance or the interim maintenance as the case may be.
Provided that if he increases the allowance, the monthly rate of five hundred in the whole shall not be exceeded.
(2) Where it appears Magistrate that in consequence of any decision of a competent civil court, any order made under section 125 should be cancelled or varied, he shall cancel the order or, as the case may be, vary the same accordingly.
(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, whether before or after the date of said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order -
(i) in the case where such sum was paid before such order, from the date on which such order was made;
(ii) in any other case, from the date of expiry of the period, if any, for which maintenance has been actually paid by the husband to the woman;
(c) the woman has obtained a divorce from her husband and that she had voluntarily surrendered her rights of maintenance or interim maintenance as the case may be after her divorce, cancel the order from the date thereof.
(4) At the time of making any decree for the recovery of any maintenance or dowry by any person, to whom a monthly allowance for the maintenance and interim maintenance or any of them has been ordered to be paid under section 125, the Civil Court shall take into account the sum which has been paid to, or recovered by such person as monthly allowance for the maintenance and interim maintenance or any of them, as the case may be, in pursuance of the said order.
"(1) Any Executive Magistrate or officer-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 lawful 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 male 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 of code says :-
"(1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.
(2) Such Magistrate may require any officer in command of any group of person belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.
(3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons."
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration to explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise dispose of,such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning or possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order -
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or
(v) to fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order,or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court." The whole object of Section 133 is that the public should not suffer and that such dangers or obstructions caused by the members of the public should be removed at the earliest possible moment. The proceedings under Section 133 is not to be taken in a case where there has been a long user. It is not intended that the proceeding under that section should be substituted for civil suit in a Civil Court. Section 133 empowers a District Magistrate, or a Sub-divisional Magistrate, or an Executive Magistrate to take action only where there has been an invasion of public right. Proceedings under the section are not intended to protect the public as a whole against inconvenience. Before action can be taken under section 133, the obstruction or nuisance must be proved to exist on some way, river, channel which may lawfully be used by the public or on some public place. If the obstruction or nuisance is on some private property action under this section cannot be taken.
(1) Any officer incharge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instrument for weighing, used or kept therein, whenever he has reason to believe that there are in such place any weights, measures or instrument for weighing which are false.
(2) If he finds in such place any weights, measures or instruments for weighing which are false, he may seize the same and shall forthwith give information of such seizure to a Magistrate having jurisdiction.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non-cognizable.So section 155 is in four parts :
Firstly :- Sub-section (1) empowers the officer in charge of Police Station to record the information and enjoins that informant shall be referred to Magistrate.
Secondly :- Sub-section (2) expressly prohibits the police officer from investigating non-cognizable case without the order of a Magistrate
Thirdly :- Sub-section (3) says as to how Police Officer will proceed when he gets the order of Magistrate. It is by virtue of this provision a police officer can investigate a non-cognizable case
Fourthly :- Sub-section (4) expressly provides that if one of the offences reported is cognizable and the report relate to two or more offences, then case must be treated as cognizable case which means powers and duties under section 154 will be attracted under section 155 as well.
(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned.In Eastern Spinning Mills v. Rajiv Poddar, AIR 1985 SC 1668, it was observed that Police have a statutory right to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities and neither Magistrate nor even the High Court can interfere with those statutory rights by an exercise of the inherent jurisdiction of Court. Except in exceptional cases where non-interference would result in miscarriage of justice, the courts should not interfere at the stage of investigation of offences. In State of Assam v. Abdul Moor, AIR 1970 SC 1365. A magistrate is empowered under section 156 (3) to refer the case for investigation by Police. But he can do so under this provision only before he has taken cognizance of the case. If he has already taken the cognizance then the investigation can be ordered under section 202 of Code. Procedure where cognizable offence suspected. - Section 157 provides the manner in which investigation is to be conducted where the commission of a cognizable offence is suspected. It lays down :- (1) If, from information received or otherwise, an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to take measures for the discovery and arrest of the offender.
(a) Where local investigation dispensed with. - When any information as to commission of any such offences is given against any person by name and the case is not of a serious nature, the officer-in-charge of police station need not proceed in person or depute a subordinate officer to make an investigation on the spot.
(b) Where police officer-in-charge sees no sufficient ground for investigation. - If it appears to the officer-in-charge of the police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case.(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to Sub-section (1), officer-in-charge of the police station shall state in his report his reasons for not fully complying with the requirements of that Sub- section, and in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated. Section 158 makes provisions as to the submission of a report under Section 157. It says :
(1) Every report sent to a Magistrate under Section 157 shall, if the State Government so directs, be submitted through such superior officer of police as the State Government, by general or special order, 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.Section 159 provides that 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 the case under the proviso to Section 157(1). It is only in those cases that if magistrate thinks fit, he may himself make an investigation or direct a subordinate Magistrate to hold a preliminary enquiry. The Section is really intended to give a limited power to Magistrate to ensure that the Police investigate all cognizable offences and do not refuse to do so by abusing their power for certain limited cases. Attendance and examination of witness. - Section 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. It provides that any police officer making an investigation may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise 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.Examination of witness by police. - The Police have the power to examine witnesses during the course of an investigation. Section 161 lays down
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be 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 expose him to a criminal charge to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.Statement to Police and the use of such statements. - Section 162 makes provisions to keep out evidence which it is suggested is not free and of a fair nature but may have been induced by some form of police duress. It lays down :
(1) No statement, made by any person to a police officer in the course of an investigation, under this Chapter, shall, if reduced into writing, be signed by the person making it; nor shall any such statement, or any record thereof, whether in police diary or otherwise, or any part of such statement on record, be used for any purposes, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made :
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1) of the Indian Evidence Act, 1872, or to affect the provisions of Section 27 of that Act.
(i) A male under the age of 15 years
(ii) A female.In State of A.P. v. Venugopal AIR 1964 SC 33 it was held that power of police officer to require the attendance of `any person' by an order in writing under Section 160 Cr.P.C., for eliciting any information includes accused as well. But beating the accused or any person to extract the information is not permissible. The Supreme Court in Nandini Sathpathy v. P.L. Dhani, A.I.R. 1978 S.C. 1025 held that the act of directing a woman to appear in police station is violative of Section 160(1) of Cr.P.C. The State Government may, by Rules made in this behalf, provide for the payment by the police officer of the reasonable expenses of every person, attending under Sub-section (1) at any place other than his residence. The Police have the power to examine witnesses during the course of an investigation. Section 161 lays down:
(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special Order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted 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 expose him to a criminal charge or to a penalty of forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this Section ; and if he does so, he shall make a separate and true record of the statement he records .
Provided that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.(2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in Section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect :-
"I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.(Signed) A.B. Magistrate." (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried." So Section 164 of Code gives power to Judicial Magistrate to record confession or statement and provides elobrate procedure to be followed by a judicial Magistrate before and while recording the statement. The reason for getting the statements of witnesses recorded under section 164 Cr.P.C. is that they may state on oath so that chances of changing their version at the trial may be minimised for the fear of being involved in perjury. In Mahabir Singh v. State of Haryana, AIR 2001 SC 2503, it was observed that an accused person can appear before a Magistrate for recording his confession. It is not necessary that such accused should be produced by Police for recording the confession but it is necessary that such appearance must be in course of investigation under chapter XII of Code. If Magistrate does not know that he is concerned in a case for which investigation has been commenced, it is not permissible for him to record confession. In Sarwan Singh v. State of Punjab, AIR 1987 SC 637, it was held that: In recording confessions the Magistrate should bear in mind the following principles of law :
(i) Full and adequate compliance with the provisions of this section is imperative. Its non-compliance goes to the root of the Magistrate's jurisdiction to record, and reduces the statement recorded by him to a nullity.
(ii) Every enquiry must be made from the accused as to the custody from which he was produced and as to the custody to which he was to be consigned and the treatment that he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence; in case the Magistrate discovers on such enquiry that there is ground for such supposition, he should give the accused sufficient time for reflection before he is asked to make his statement.
(iii) Besides the warning specifically provided for in Sub-section (2), namely, that the accused is not bound to make a statement and that if he makes one it may be used against him as evidence, he should also, in plain terms, be assured of protection from any sort of apprehended torture or pressure from such extraneous agents.
(iv) The Magistrate who is entrusted with the duty of recording confession of an accused coming from jail custody or police custody must appreciate his function as one of a judicial officer and must apply his judicial mind to the task of ascertaining that the statement the accused is going to make is of own accord and not on account of any influence on him.
(v) He should also consider it expedient that satisfaction of his conscience as to the voluntary character of the statement is not the only act to be achieved by him, but he should leave such materials of record in proof of compliance with the imperative requirements of Section.In Bhagwan Singh v. State of M.P., 2003(1) RCR(Criminal) 660 (SC), it was observed by Supreme Court that while recording under section 164, following points must be borne in the mind of Magistrate
(1) Magistrate in particular should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial;
(2) Accused should be granted sufficient time for reflection;
(3) Accused should be assured of protection from any sort of apprehended torture or pressure from police in case he declines to make a confessional statement;
(4) Confession should be recorded in questions and answers form which is the manner indicated in the criminal court rules;
(5) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence.
(i) 90 days, where investigation relates to offence punishable with death or imprisonment for life or imprisonment for term not less than 10 years
(ii) 60 days, where investigation relates to any other offence.On the expiry of above said period and investigation being not completed, Judicial Magistrate of First Class shall grant bail such accused on his furnishing bail bond. In C.B.I. v. Anupam Kulkarni 1992 Criminal Law Journal 2768, it was held longest period for which an accused can be ordered to be detained in police custody by one or more such order is only fifteen days Provided the Magistrate is satisfied that adequate grounds exist for doing so. But no Magistrate shall authorise the detention of accused in custody under Section 167 for total period exceeding:
(i) 90 days in case of offences under investigation is punishable with death or imprisonment for life or for term not less than 10 years (ii) 60 days where investigation relates to other offences .The custody after the expiry of first 15 days from date of forwarding the accused to Magistrate can only be judicial custody for rest of the period of 60/90 days In Kulwinder Kaur v. State of Haryana 2000(2) Recent Criminal Reports 226 Punjab and Haryana High Court held that after the arrest of accused and challan was not put up till the expiry of 90 days and accused applied for bail under Section 167(2) of Code and police putting up the challan before the decision of bail application of accused. This fact will not affect the right of accused to be released on bail.
(i) A Citizen of India, whether on the High seas or elsewhere; or
(ii) Person not being such citizen on any ship or aircraft registered in India.With the previous sanction of Central Govt.
Q. 34 State with reasons which of the courts shall have jurisdiction to try the cases arising out of following facts:
(i) A is kidnapped from Lucknow and is recovered from a house in Kanpur.
(ii) Injuries were caused to X at Lakhimpur. He dies of those injuries at Kanpur, where he was brought for treatment.
(iii) A dacoity was committed in the town Patna, the dacoits were arrested at Dhanbad, the looted property was recovered from a goldsmith at Gaya.
"(1) Subject to the provisions of this chapter, any Magistrate of the first class and any Magistrate of the Second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate, may empower any Magistrate of second class to take cognizance under Sub-section (1) of such offences as are within his competence to inquire into or try"So any Magistrate of First Class and any Magistrate of second class, specially empowered in this behalf by Chief Judicial Magistrate may take cognizance of an offence. The ways in which such cognizance can be taken set out in clauses (a), (b) and (c) of Section 190(1). In Tula Ram v. Kishore Singh, 1978 Cri.L.J. 8 (SC), it was observed that "Taking Cognizance" means judicial application of the mind of the Magistrate to the facts with a view to taking further action. Thus what section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations."
"No court shall take cognizance:
(a) (i) of any offence punishable under Sections 172 to 188 of I.P.C.
(ii) of any abetment of or attempt to commit such offence or
(iii) of any criminal conspiracy to commit such offence.except on the complaint in writing of the Public Servant concerned or of some other public servant to whom he is administratively subordinate.
(b) (i) Of any offence punishable under any of the following Sections of the I.P.C. namely Sections 193 to 196, 199, 200, 205 to 211 and 228 when such offence is alleged to have been committed in or in relation to, any proceeding in any court.
(ii) Of any offence described in Section 463 or punishable under Section 471, Section 475 or 476 of said code, when such offence is alleged to have been committed in respect of document produced or given in evidence in a proceeding in any court, or
(iii) Of any criminal conspiracy to commit or attempt to commit or the abetment of any offence specified in Sub-clause (i) or (ii).except on the complaint in writing of that Court or of some other court to which that court is subordinate." The object of Section 195 of Code is to prevent improper or reckless prosecution by private persons for offences in connection with the administration of public justice and contempt of lawful authority. Provisions of Section 195 of Code are mandatory and court has no jurisdiction to take cognizance of any offence mentioned therein unless there is a complaint in writing as required by this Section . Recently Supreme Court in M. S. Ahlawat v. State of Haryana AIR 2000 SC 168 has observed " Section 195 of Criminal Procedure Code provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 I.P.C. etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed or public servant as the case may be, may initiate the proceedings. Provisions of Section 195 Cr.P.C. are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing required under that Section _____. While under Section 195 Cr.P.C. it is open to the court before which the offence was committed to prefer a complaint for prosecution of the offender. Section 340 Cr.P.C. prescribes the procedure as to how that complaint may be preferred."
Q. 38 The words "any offence alleged to have been committed by him while acting or purporting to act in discharge of his official duty" employed in Section 197(1) of Code are capable of a narrow as well as a wide interpretation". Elaborate the above statement in relation to Section 197 Code of Criminal Procedure, referring to decided cases.
(1) Public servant is removeable from office either by Union Government, or State Government and not by lesser authority and
(2) He is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of his official duty.In P.P. Unikrishanan v. Puttiyottil Ali Kutty AIR 2000 SC 2950 Supreme Court had observed that for application of Section 197 of Code "there must be a reasonable connection between the act and the discharge of official duty the act must bear some relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim that he did it in the course of the performance of his duty." In Gouri Shankar Prasad v. State of Bihar 2000(2) Recent Criminal Reports 708 (SC) Supreme Court observed:
"The offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duty, no question of sanction can arise under Section 197 unless the act complained of is an offence, the only point to determine is whether it was committed in discharge of official duty. There must be a reasonable connection between act and official duty. It does not matter even if the act exceeds what is strictly necessary for the discharge of the duty what we must find out is whether the act and the official duty are so interrelated that one can postulate reasonably that it was done by the accused in the performance of the official duty, though possibly in excess of needs and requirements of the situation."
(i) Allegation of commission of an offence.
(ii) Allegation may be made orally or written.
(iii) Allegation made to a Magistrate.
(iv) Allegation made with a view of his taking action under the Cr.P.C.
(v) Allegation may be against a person known or unknown.
(vi) It must not be a police. But report by a police officer, which after investigation discloses commission of non-cognizable offence shall be deemed to be complaint.PROCEDURE WHEN COMPLAINT IS FILED : Sections 200 to 204 of Code of Criminal Procedure lays down procedure to be adopted by Magistrate on receiving a complaint. According to Section 200 the procedure to be adopted by a Magistrate on receiving a complaint is Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses
(a) if a public servant acting or purporting to act in the discharge of his official duties or the Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not examine them.Where Magistrate not competent to take cognizance of the case. Section 201 provides that if the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall
(a) if the complaint is in writing, return it for presentation to the proper court with an endorsement to that effect;
(b) if the complaint is not in writing, direct the complainant to appear before the proper Court.In Tula Ram v. Kishore Singh AIR 1977 SC 2401, it was held that "After a complaint being filed Magistrate has two alternatives (a) Either to examine the complainant and to proceed under Chapter XV of Code or (b) Direct the Police to Investigate under Section 156(3) of Code, without himself taking cognizance.
(a) Where Magistrate chooses to take cognizance he has to comply with requirement of Section 200 and record the evidence of complainant and his witnesses and then either straightaway issue the process against accused under Section 204 or he can postpone the issue of process and direct an enquiry by any other person or an investigation by police under Section 202. Magistrate after considering the statement of complainant and the witness or result of enquiry or investigation if not satisfied that there are sufficient grounds, he can dismiss the complaint.
(b) Where Magistrate does not take cognizance of matter, he can refer the complaint for Police Investigation under section 156(3) and receives report of police, then either discharge the accused or straightaway issue the processSection 202(1) of Code says "Any Magistrate on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, if thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or an investigation to be made by police officer or by such other person as he thinks fit for the purpose of deciding whether there is sufficient ground for proceeding. According to Section 203, if after considering the statements on oath, of any complainant and of the witnesses and the result of the enquiry or investigation, if any, under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. In Debender Nath v. State of W.B. AIR 1972 SC 1607 Supreme Court held order of dismissal of a complaint under Section 203 of Code has to be made on judicially sound grounds Section 204 of Code then provides for issuance of process against accused, when taking cognizance of the offence, is of opinion that there is sufficient ground for proceeding. In Pepsi Food Ltd. and others v. Special Judicial Magistrate and Other 1998 Supreme Court Cases (Cri) 1400 Supreme Court held "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The order of Magistrate must reflect that he has applied his mind to facts of case and the law applicable thereto."
(1) The offence with which the accused is charged.
(2) If the law which creates the offence gives it, any specific name, the offence may be described in the charge by that name.
(3) If the law which creates the offence does not give it any specific name, 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 the Section of the Law against which the offence is said to have been committed shall be mentioned in the charge.
(5) The fact that charge is made is equivalent to 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 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 the fact, date and place of previous conviction shall be stated in charge.Then Section 212 says that charge shall also contain particulars as to time and place of alleged offence and person against or thing in respect of which it was committed. According to Section 212(2), when the charge is of criminal breach of trust or criminal misappropriation of money, it shall be sufficient to specify:
(a) the gross sum in respect of which offence is committed.
(b) the dates between which it is committed provided the time between the first and the last date shall not exceed one year.Section 213 mentions the necessity of particulars of the manner in which the alleged offence was committed. This is however necessary only when the foregoing particulars (as mentioned in Section 211 and 212) do not give the accused sufficient notice of the matter with which he is charged. Section 214 says that in every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable. In R.N. Raghu v. State of Kerala 1988 Criminal Law Journal 1364, it was observed by Kerala High Court "All what accused is entitled to know from the charge framed are
(i) Offence with which he is charge
(ii) Law and Section of Law against which offence is said to have been committed
(iii) Particulars of time and place and person against whom offence is said to have been committed.Further it is provided under Section 213 of Code that if nature of case is such that those particulars do not give the accused sufficient notice of the matter with which he is charged, such particulars of the manner in which offence alleged was committed, as will be sufficient for that purpose also should be given. The accused is not entitled to any further information. DEFECTIVE CHARGE Section 215 of Code deals with the cases where a charge is framed but there are errors, omissions or irregularities in the charge. It provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Section 215 is intended to prevent any failure of justice for non-compliance with the matters required to be stated in the charge, unless the irregularity in the charge has misled the accused and occasioned a failure of justice, a conviction can not be set aside. In Bupesh Deb v. State of Tripura AIR 1978 SC 1672, it was observed that Section 215 must be read with Section 465, the combined reading of these provisions require that when any error, omission or irregularity has occurred in the framing of a charge, the only question to consider is whether it has occasioned a failure of justice by prejudicing the accused in defence. Where the prosecution tried to make a case different from that stated in the charge, it clearly causes prejudice to accused. (b) ALTERATION OF CHARGE Sections 216 and 217 of Code then deal with alteration or addition of charge. Section 216 empowers the court to alter or add to the charge during the course of trial. It is provided that any court may alter or add to any charge at any time before the judgment is pronounced. Every such alteration or addition shall be read and explained to the accused. If the alteration or addition to a charge is such that the proceeding immediately with the trial is not likely, in the opinion of the Court, 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. If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, 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. 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 has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded. According to Section 217, whenever a charge is altered or added to by the Court after the commencement of the trial the prosecutor and the accused shall be allowed :
(a) to recall or resummon, and examine with reference to such alteration or addition any witness who may have been examined, unless the Court, for reasons to be recorded in writing, consider that the prosecutor or the accused, as the case may be, desires to recall or reexamine such witnesses for the purpose of vexation or delay and for defeating the ends of justice;
(b) also to call any further witness whom the court may think to be material.In Amar Singh v. State of Punjab 1998(4) Recent Criminal Reports 784 Punjab and Haryana High Court has observed "A perusal of Section 217 of Code indicates clearly that whenever charge is altered or added, the prosecutor and the accused had a right to recall for resummon the witness already examined. The exception is that, court for reasons to be recorded in writing may consider that calling of witness would be vexatious and defeat the ends of justice."
Q. 41 (a) "For Every distinct offence of which any person is accused, there shall be a separate charge and every charge shall be tried separately". State the exception to this Rule.
(b) Can there be a joinder of charge in a trial under following circumstances:
(i) A commits theft on four occasions in 1986 of which two are punishable under Section 379 I.P.C. and the other two under Section 380 of I.P.C.
(ii) A attempts to rescue B from the custody of police and while making such attempts causes grievous hurt to a constable C and simple hurt to constable D.
"(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.The provisions of the two Sub-sections are clear enough to enable a Court to convict an accused person even of an offence with which he has not been charged if the Court is of the opinion that the provisions do apply, so that for want of a specific charge there should not be a failure of justice. In Sunil v. State, AIR 1965 SC 706, it was held by the Supreme Court that where a public servant is charged and tried by the Special Court for an offence under Section 409, I.P.C., but a charge under Section 420, I.P.C., could be framed by the Court under Section 221 on the basis of the allegations in the chargesheet, the trial Court or the appellate Court can, in law, convict the accused of an offence under Section 420, I.P.C. instead of Section 409, I.P.C., if it be of the view that the offence of cheating has been established. This would accord with the provisions of Section 221 of the Code.
(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 abetment of, or an 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 abetment 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, 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, relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence, and the provisions contained in the former part of this Chapter shall, so far as may, 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, the Magistrate may, if such persons by way of 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 such persons together.Recently Supreme Court while dealing with Section 223 of Cr.P.C. in Balbir v. State of Haryana AIR 2000 SC 11 has observed:
"As per Section 223 all persons falling under any of the seven categories enumerated therein can be charged and tried together. In clauses (a) and (d) of Section 223 the primary condition is that persons should have been accused either of the same offence or of different offences "committed in course of same transaction." That expression is not akin to saying "in respect of same subject matter". Where there is continuity of action, then all those persons involved can be accused of the same or different offences, committed in course of same transaction. But if in one case the accused is alleged to have killed a person without any junction with the Accused in other case, then it can not be treated as same offence or even different offence "committed in course of same transaction."
(a) the offence is triable as a warrant case,
(b) it is triable by him, and
(c) he can adequately punish the 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. 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 and a conviction based on the alleged plea of guilty without specifically recording it invalidates the trial and the conviction based thereon. Section 242 lays down that if the accused
(i) refuses to plead, or
(ii) does not plead guilty, or
(iii) claims to be tried, or
(iv) the Magistrate does not convict him on his plea of guilty, a date shall be fixed for the examination of the witnesses.The Magistrate may, on an application of the prosecution, issue summons to any prosecution witness to attend or produce any document or thing. On such date the Magistrate shall proceed to take all such evidence as may be produced in support of the prosecution; he may permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further examination. The accused shall then, under Section 243, enter upon his defence and the written statement, if any, shall be filed with the record. After entering upon defence if the accused applies for the issue of process for the attendance of any witnesses, for examination or cross-examination or the production of any document or thing, the Magistrate shall issue such process unless he considers the application to be vexatious, or to be such as to cause delay or defeat the ends of justice. No witness, already cross-examined or in respect of whom an opportunity for cross-examination has been given to the accused shall be so compelled to attend, unless the Magistrate is satisfied that it is necessary for justice. The accused may be required to deposit the necessary expenses of any witness so recalled before he is summoned. In Basava Raj R. Patil v. State of Karnataka 2000 (4) Recent Criminal Reports 543 (SC) Supreme Court has held that Section 243(1) of Code enables the accused who is involved in the trial of warrant case instituted on police report to put in any written statement. When any such statement is filed, the court is obliged to make it part of the Record of the case, even if such case is not instituted on police report, the accused has the same right in Section 247. Even accused involved in offences exclusively triable by court of Session, can also exercise such right to put in written statement under section 233(2) of Code. 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.
Q. 49 In a complaint case the complainant, on a date fixed is absent. Counsel for the accused urged that the complaint be dismissed and accused acquitted. Counsel for the complainant contends, however that there was nothing to be done as summons for the doctor, for whose evidence, the date was fixed, had not been issued by the office of the court despite deposit of process fee by the complainant and therefore the case be adjourned to some other date.
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.The provisions of Sub-section (1) shall, so far as may be, apply also to the cases where the non-appearance of the complainant is due to death. The object underlying the Section is to ensure that private complainants are not dilatory in prosecuting criminal proceedings leading to harassment of accused person and waste of public time. In Associated Cement Co. Ltd. v. Keshvanand, AIR 1998 SC 596, it was observed : Two constraints are imposed on the Court for exercising the power under the Section 256. First is, if the Court thinks that in situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. Facts of the case in hand are very similar to facts of case Johri Lal v. Ramji Lal, AIR 1965 Raj. 19. In this complainant was present on as many as eleven hearings, on twelfth the accused was acquitted because of complainant's absence. On that date the complainant had nothing to do. He had deposited process fee for the witnesses being summoned, but summons had not been issued. High Court held that acquittal of accused under these circumstances was arbitrary and capricious and is liable to be set aside. It was observed:
"The power to dismiss the case is undoubtedly there. But power must be exercised judicially and is not intended to serve a shortcut for Magistrate to dismiss cases by snap judgements "In view of above discussion in the case in hand complaint is not liable to be dismissed because of absence of complainant under section 256 of Code, particularly when complainant was being duly represented by his lawyer and also when there was nothing to be done on that date.
(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 two hundred rupees
(iii) Receiving or retaining stolen property where value of property does not exceed Rs. 200.
(iv) Offences of assisting in concealing or disposal of stolen property.
(v) Offences under Sections 454 and 456 of I.P.C.
(vi) Offences of insult with the intent to invoke a breach of peace under Section 504 or Criminal intimidation under section 506 of I.P.C.
(vii) Offences in respect of which complaint may be made under Section 20 of Cattle Trespass Act 1871.Section 260(2) says if during the course of summary trial, it appears to Magistrate that nature of case is such that it is undesirable to try such case summarily, he shall recall any witness who may have been examined and proceed to rehear the case in the manner as provided by code. In Sham Lal v. State of Punjab 1977 Chandigarh Law Reporter 137 it was observed that "Procedure for summary trial of cases is laid down in Chapter XXI of Code of Criminal Procedure and Section 262 says that even in such trials procedure laid down for summons cases shall be followed if the offence is triable as summons cases and that of warrant cases where the offence is triable as a warrant case. Section 263 prescribes the nature of record that has to be kept in non-appealable cases Though it is stated that in such cases the Magistrate need not to record evidence of witnesses or frame formal charges However particulars of offence complained of and offence proved must be entered on the record.
(a) if the witness gives evidence in the language of the Court, it shall be taken down in that language ;
(b) if he gives evidence in any other language, it may, if practicable, be taken down in that language, and it is not practicable to do so, a true translation of the evidence in the language of the Court shall be prepared as the examination of witness proceeds, signed by the Magistrate or presiding Judge and shall form part of the record;
(c) where under clause (b) evidence is taken down in a language other than the language of the court, a true translation thereof in the language of the court shall be prepared as soon as practicable, signed by the Magistrate or the presiding Judge, and shall form part of the record, provided that when under clause (b) evidence is taken down in English and a translation thereof in the language of the Court is not required by any of the parties, the Court may dispense with the translation.According to Section 278, as the evidence of each witness taken under Section 275 or 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader and shall, if necessary, be corrected. If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or the language in which he understands. In Mr. Mohmd. Omar v. State of W.B., AIR 1989 SC 1785, it was observed that the object of section 278 is two fold. Firstly to ensure that evidence of witness as recorded is accurate, secondly to give witness concerned an opportunity to point out mistakes if any. If correction suggested by witness is one which the Judge considers necessary, he will make it at once as required by Sub-section (1) but if correction is such that Judge does not consider necessary, Sub-section (2) requires that a memorandum of objection be made and the Judge and his remarks, if any thereto. Section is not intended to permit a witness to resile from his statement in the name of correction. Section 279 provides for the interpretation of the evidence to the accused or his pleader, if it is recorded in a language not understood by the accused or his pleader. A Judge or Magistrate is authorised under Section 280 to record not only the evidence of witness but also to record such remarks as he thinks material respecting the demeanor of such witness while under examination. But he is not authorised to record remarks about the credibility or the substance of the deposition of the witness. When the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement he shall be bound to state the true interpretation of such evidence or statement (Section 282).
(a) to give any evidence derived from any unpublished official records on which the report is based; or
(b) to disclose the nature of particulars of any test applied by him in the course of the examination of the matter or thing.
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Inspector of Explosive;
(c) the Director of Finger Print Bureau;
(d) the Director, Haffkeine, Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.Though there is nothing wrong in taking reports from the Chemical Examiner and the Serologist, but when there is a difference of opinion in the reports, the duty to explain the difference is on the prosecution and the mere production of the report does not prove anything which can weigh against the accused.
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952);
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.(3) Every Magistrate who tenders a pardon under Sub-section (1) shall record -
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made,and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under Sub-section (1) -
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.(5) Where a person has accepted a tender of pardon made under Sub-section (1) and has been examined under Sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case, -
(a) commit it for trial -
(i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.The object of this section is to allow pardon in cases where grave offence is allegedly committed by several persons, to one of the accused who is ready to give evidence of complicity of accused in the crime. 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, or privy to, 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." Then Section 307 enables the court to 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 evidence of 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 of lode to such person. Section 308 of Code says : "(1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by wilfully concealing anything essential or by 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, and nothing contained in Section 195 or Section 340 shall apply to that offence.(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. (3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with. (4) At such trial, the Court shall -
(a) if it is a Court of Session, before the charge is read out and explained to the accused;
(b) if it is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken,ask the accused whether he pleads that he has complied with the conditions on which the tender of pardon was made. (5) If the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied it shall, notwithstanding anything contained in this Code, pass judgment of acquittal. 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.
"The Public Prosecutor or Assistant Public Prosecutor, incharge of the case may, with the consent of the court, at any time before the judgment is pronounced, withdraw from prosecution of any person either generally or in respect of any one or more of the offences for which he is tried.So Section 321 of Code is an enabling provision and vests in the Public Prosecutor the discretion to apply to the court for its consent to withdraw from the prosecution of any person. Two main features of Section 321 are to be borne in mind i.e. Initiative is that of Public Prosecutor to apply for consent of court for withdrawal of prosecution, court then has to give consent. Judicial function implicit in the exercise of judicial discretion for granting the consent would mean that court has to satisfy itself that executive function of Public Prosecutor has not been improperly exercised. Supreme Court recently in Abdul Karim v. State of Karnataka AIR 2001 SC 116 while discussing Section 321 Cr.P.C. and case law on the provision of law, has laid down following propositions:
(i) Application under Section 321 of Code must aver the Public Prosecutor is in good faith satisfied, on consideration of all relevant materials, that his withdrawal from prosecution is in Public Interest and it will not stifle or thwart the process or cause in justice.
(ii) Though Government may have ordered the Public Prosecutor to withdraw from Prosecution, it is for Public Prosecutor to apply his mind to all material and in good faith to be satisfied thereon that the Public Interest will be served by withdrawal.
(iii) The Court has to be satisfied after considering all materials that Public Prosecutor has applied his mind independently thereto and he acting in good faith and is of opinion that withdrawal from prosecution is in public interest.
(iv) It is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal, what court is to see, whether Public Prosecutor had applied his mind in good faith on all material of case and application is made in the interest of Public Interest and justice and not to thwart and stifle the process of law.
(v) Section 321 contemplates consent by court in a supervisory and to an adjudicatory manner. The court must ensure that Public Prosecutor had made application for withdrawal of prosecution after independent consideration and then exercise its discretion of giving consent or decline the consent.
(a) By delivering the whole of the judgment.
(b) By reading out the whole of the judgment.
(c) By reading out operative part of judgment and explaining the substance of it, in the language which is understood by accused or his pleader.Presiding Officer shall sign every page of the judgment and it shall be date by him. Section 353 also provides that copy of judgement, if it is pronounced in the manner as provided in Clause (c), be immediately made available for the perusal of parties or their pleaders free of cost. Sub-section (5) says that if accused is in custody, he shall be brought to hear the judgment and Sub-section (6) to Section 353 says if Accused is not in custody, he shall be required to attend the court to hear the judgment unless his personal attendance has been dispensed with during the trial and sentence of fine is to be imposed or he is to be acquitted. Sub-section (7) also makes it clear that judgment of criminal court shall not be invalid by reason of absence of any party or his pleader on the day and from the place notified for the pronouncement of judgment or by reason of any defect in serving notice on parties Section 354 of Code then provides for language and contents of judgement. It lays down that every judgment as referred to in Section 353 (a) shall be written in the language of court (b) shall contain points of determination and decision thereon and reasons for the decision (c) shall specify the offences of Indian Penal Code or of any other law of which accused is acquitted or convicted and if the accused is acquitted it must contain directions that he be set at liberty. Sub-section (2) to Section 354 says when it is doubtful under which of two Sections or two parts of same Section of law, the offence falls, the court shall distinctly express the same and pass the judgment in the alternative. Section 354(3) then provides that when an accused is sentenced to death or with imprisonment for life or for any term, the judgment shall contain reasons for sentence awarded and in case of sentence of death, the special reasons for such sentence. In State of Gujarat v. Mulchand, 1990 Criminal Law Journal 2399 It was observed that every judgment must contain points for decision, decision thereon and reasons for the decision. This provision is mandatory. Supreme Court recently in State of Karnataka v. Registrar General of High Court of Karnataka, AIR 2000 SC 2626 has observed that "Judicial decorum requires that judgements and Orders should confine to facts and legal points involved in particular cases which judges deal with. Judicial disposition is definitely different from a paper presented for seminar dissertation."
i) Compensation for prosecution expenses
ii) Compensation to the victims
iii) Compensation to dependents specified in Fatal Accidents Act, 1855, i.e. every such action or suit shall be for the benefit of the wife, husband, parent and child if any, of the person whose death shall have been so caused and shall be brought by and in the name of the executor, administrator or representative of the person deceased.
iv) Compensation to victims from the amount of fine imposed.
a) When a Court imposed a sentence of which fine does not form a part, the Court may when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of act for which the accused person has been so sentenced.
(b) An order under this Section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
(c) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section .Thus, for the first time Section 357(3), Cr.P.C. has not only recognised the philosophy of compensation simpliciter to the victims of crime even when no sentence of fine is imposed, but also added a new positive dimension to the idea of re-compensating them. Prior to inclusion of this clause no compensation could be awarded unless a substantive sentence of fine was passed and that too this was limited only to the extent of the fine actually realised. It can be for any amount and not limited to the amount of fine imposed or recovered. From the above-mentioned clauses it is evident that Section 357 Cr.P.C. in essence, empowers a Court to award compensation to any person for any `loss' or `injury' caused by an offence in those cases where `fine' does or does not form part of the sentence imposed. But under Sub-section (1) of Section 357, it can do so only out of the `fine' imposed on, and recovered from, the offender if such compensation, in its opinion, is recoverable in a Civil Court. The amount so awarded under this Sub-section , obviously, cannot exceed that of the fine so imposed/recovered as the underlying idea in directing such compensation is to collect the fine and pay it to the person who has suffered the loss, while under Sub-section (3), a Court is empowered to order a specified amount of compensation irrespective of the fact that the offence is punishable with fine or not and/or fine is actually imposed or not.
(a) an accused person under Section 360 or under the provisions of the Probation of Offenders Act, 1958, or
(b) a youthful offender under the Children Act, 1960, or any other law for the time being in force for the treatment, training or rehabilitation of youthful offenders,but has not done so, it shall record in its judgment the special reasons for not having done so. Then Sub-section (3) of Section 360 of Code says : In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years' imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition.
(i) In case of conviction on trial held by High Court in its extraordinary criminal jurisdiction may lie to Supreme Court.
(ii) Appeal against order of conviction by Session Judge or a Court awarding sentence of imprisonment for more than seven years, shall lie to High Court.
(iii) Appeals to Session Court against
(a) Order of conviction by Metropolitan Magistrate or Assistant Session Judge or Magistrate of the First Class or the Second Class
(b) Sentence passed by the Chief Judicial Magistrate on a reference being made to him under Section 325 or
(c) Order or sentence passed by any Magistrate under Section 360.Then Section 375 says no appeal lies against the Order of conviction when an accused pleads guilty and has been convicted on such plea if (a) Conviction is by High Court or (b) Conviction is by court of Session, Metropolitan Magistrate or Magistrate of the First or Second Class, except as to the extent or legality of the sentence. Then Section 376 provides that no appeal lies where High Court passes only sentence of imprisonment for term not exceeding, 6 months or fine upto Rs. 1000 or where Sessions Court or Metropolitan Magistrate pass sentence of imprisonment upto 3 months or fine upto Rs. 200 or both or where First Class Magistrate passes sentence of fine upto Rs. 100. Section 377 of Code then provides that Central Government in cases investigated by Delhi Special Police Establishment or by Central Agency or State Government in 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. 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. Revision. Section 397 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. 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. Section 397(1) confer concurrent jurisdiction to High Court and Court of Session in the matter of revision. Section 397(2) however makes it clear that Revisional Jurisdiction shall not be exercised in respect of interlocutory orders.
(i) Reference is permissible when in a pending case, a substantial question as to validity of any Act; Ordinance or Regulation or of any provision arose. Revision lies only on the question of correctness, legality or propriety of any finding, sentence or order or as to regularity of any proceeding.
(ii) Reference can be made in a pending case whereas Revision lies both in pending and decided cases
(iii) Reference can be made to the High Court but Revision can be filed before High Court or Session's Court.COMPOUNDABLE AND NON-COMPOUNDABLE CASES Law makes a difference between various classes of offences and allows compromise in some kind of offences and no compromise in other. Offences in which compromise can be affected are known as compoundable offences and those offences in which compromise can not be effected are non-compoundable. Principle of English law is that composition of an offence is illegal if the offence is one of public concern but lawful if offence is of private nature and for which damages may be recovered in civil action. Section 320(1) of Code of Criminal Procedure specifies certain offences which can be compounded by persons mentioned in the table annexed thereto. In such cases there is no necessity to obtain permission of Court before compounding such offences. Section 320(2) of Code lays down certain offences which can be compounded only with the permission of Court. Section 320 specifically says no offence shall be compounded except those provided in this Section . So only distinction is that offences which are mentioned in Sub-sections (1) and (2) of Section 320 of Code are compoundable and those which are not mentioned are non-compoundable. Offence lawfully compounded shall have the effect of acquittal.
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,it may order -
(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;.
(iii) that any particular case be committed for trial to a Court of Session; or
(iv) that any particular case or appeal be transferred to and tried before itself.(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation. (4) When such application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7). (5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application. (6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under Section 309.(7) Where an application for an order under sub-section (1) is dismissed, the High 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 proper in the circumstances of the case. (8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred. (9) Nothing in this section shall be deemed to affect any order of Government under Section 197." So, the High Court can order a transfer under this section on any of the following grounds :-
(1) Fair and impartial inquiry or trial not being possible.
(2) Likelilhood of unusual difficulty on a question of law arising in the case.
(3) Requirement of the transfer under any provision of this Code.
(4) General convenience of the parties or witnesses.
(5) Expediency for the ends of justice.
(a) where such petition is made by the person sentenced, it is presented through the officer-in-charge of the jail;In State of Haryana and others v. Mahinder Singh etc., 2001(1) RCR(Criminal) 627 (SC) is was observed : "Prisoners have no absolute right for remission of their sentence unless except what is prescribed by law and the circular issued thereunder. That special remission shall not apply to a prisoner convicted of a particular offence can certainly be a relevant consideration for the State Government not to exercise power of remission in that case." To commute sentence. - According to Section 433, the appropriate Government may without the consent of the person sentenced, commute -
(a) a sentence of death, for any other punishment provided by the Indian Penal Code, 1860;
(b) a sentence of imprisonment for life or imprisonment for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment fo simple imprisonment for, any term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.Restrictions on Powers - Section 433(A) of Code provides that notwithstanding any thing contained in section 432, where a sentence of imprisonment whole life imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. In State of Punjab v. Kesar Singh, 1997(1) RCR(Criminal) 14 (SC) it was observed that the mandate of section 433 Cr. P.C. enables the Government in an appropriate case to commute the sentence of a convict and to prematurely order his release before expiry of the sentence as imposed by the Court. Clause (b) of Section 433, Cr. P.C. provides that the sentence of imprisonment for life may be commuted for imprisonment for a term not exceeding 14 years or fine. In Union Territory of Chandigarh v. Charanjit Kaur, 1996(2) RCR(Criminal) 183 (SC) it was observed that Section 433 of Code, empowers the Government in appropriate case, without the consent of the person sentenced, to commute the sentence and to prematurely released the convict however clause (b) of the section mandates that 14 years is the minimum sentence required to be served by the convict for taking benefit under this section. In case of the death sentence, Concurrent power of Central Government. - Section 434 provides that the powers conferred by sections 432 and 433 of the Code of Criminal Procedure upon the State Government may in the case of sentence of death also be exercised by the Central Government. In certain case to consult Central Government. - It is provided by Se. 435 that the powers coffered by sections 432 and 433 of the code of Criminal Procedure upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence -
(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 or by any agency empowered to make investigation into an offence under any Central Act other than the Code of Criminal Procedure, or
(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(c) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty,shall not be exercised by the State Government except after consultation with the Central Government. No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to a matter to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall gave effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed for such person with regard to the matters to which the executive powers of the Union extends.
(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
(ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death or imprisonment for life or imprisonment for seven years or more or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.Provided that court may direct that a person referred to in Clause (i) or (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. In Venkataramanappa v. State of Karnataka 1992 Criminal Law Journal 2268, it was observed that Section 437 of Code gives a discretionary power to Court (other than the High Court or Court of Session) to release an accused of non-bailable offence, on bail, unless, there appear reasonable grounds that the accused has been guilty of an offence punishable with death or with imprisonment for life. But (1) a person under the age of sixteen years (2) a woman or (3) a sick or infirm person may be released on bail even if the offence charged is punishable with death or imprisonment for life. Section 438 of Code then provides as to Anticipatory Bail and Section 439 provides power to grant bail by High Court and Session Court. Section 439(1) lays down that High Court or Court of Session may direct:
(a) that any person accused of an offence and in custody, be released on bail and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary.
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified.Proviso to Section 439 then says in case of offences exclusively triable by court of session or which are punishable with death or imprisonment for life notice of Bail application shall be given to Public Prosecutor before granting bail. Sub-section (2) to Section 439 provide for cancellation of bail. In State of Rajasthan v. Bal Chand AIR 1977 SC 2447 Supreme Court discussed principles of bail and it was observed that generally it is the Rule to allow bail rather than to refuse bail and bail ought not to be withheld as punishment. Since the law presumes an accused as innocent till his guilt is proved, he must be allowed opportunity to look after his own case unless the circumstances are such that he should not be released on bail. The principles to guide the courts are the probability of the accused appearing to take his trial and not his supposed guilt or innocence. There is no hard and fast Rule as to when bail should be granted in non-bailable cases and though the discretion is unfettered, it must be exercised judicially. Considerations which are to be weighed in granting or refusing bail are:
(a) nature of the offence and its seriousness (b) character of evidence on which prosecution relies (c) Reasonable possibility of the accused person's abscondance (d) Reasonable possibility of accused person's tampering with prosecution evidence (f) Larger Interest of the Public and State etc.Recently Supreme Court in Prahlad Singh Bhati v. N.C.T. (Delhi), 2001(2) RCR(Crl.) 377 has held that there is no bar for magistrate to consider bail application of accused of offence exclusively triable by court of session however it would be proper and appropriate that in such cases the magistrate directs the accused person to approach the court of session for the purpose of getting relief of bail.
"The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing them or for getting them detained in jail. In recent times with the accentuation of political rivalry, this tendency is showing signs of steady increase. That apart where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail."The Supreme Court while discussing the provision of anticipatory bail, has laid following proposition, in Gurbaksh Singh Sibbia v. State of Punjab AIR 1980 SC 1632 :
(i) Any person approaching the court of Session or the High Court is neither arrested person or detained person, Section 438(1) of Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has reason to believe that he may be arrested for a non-bailable offence. Belief that the applicant may be arrested must be founded on reasonable grounds. Mere fear is not belief. The grounds on which the belief of applicant is based must be capable of being examined by the court objectively.
(ii) It can not be laid down that anticipatory bail can not be granted in respect of offences the punishment provided therefor is imprisonment for life, though court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal.
(iii) High Court or Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they think fit so to do on the particular facts and circumstances of case so warrant, on considerations similar to those mentioned in Section 437.In Satbir Kataria v. State of Haryana 1995(3) Recent Criminal Reports 479 Punjab and Haryana High Court has observed "While granting anticipatory bail, court has to keep in mind nature and seriousness of offence, context of events likely to lead to making of charges, a reasonable possibility of accused's presence not being secured at the trial, a reasonable apprehension that witness will tampered with and larger interest of public and state.
(a) to issue a search-warrant under Section 94;
(b) to order, under Section 155, the police to investigate an offence;
(c) to hold an inquest under Section 176;
(d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;
(e) to take cognizance of an offence under clause (a) or clause (b) of Sub-section (1) of Section 190;
(f) to make over a case under Sub-section (2) of Section 192;
(g) to tender a pardon under Section 306;
(h) to recall a case and try it himself under Section 410; or
(i) to sell property under Section 458 or Section 459,erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered." And then Section 461 provides regarding irregularities which vitiate the proceedings. Section 461 reads as under - "If any Magistrate, not being empowered by law in this behalf, does not of the following things, namely -
(a) attaches and sells property under Section 83;
(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order for maintenance;
(h) makes an order under Section 133 as to a local nuisance;
(i) prohibits, under Section 143, the repetition or continuance of a public nuisance;
(j) makes an order under Part C or Part D of Chapter X;
(k) takes cognizance of an offence under clause (c) of Sub-section (1) of Section 190;
(l) tries an offender;
(m) tries an offender summarily;
(n) passes a sentence, under Section 325, on proceedings recorded by another Magistrate;
(o) decides an appeal;
(p) calls, under Section 397, for proceedings; or
(q) revises an order passed under Section 446,his proceedings shall be void."
(i) six months if the offence is punishable with fine only ;
(ii) one year, if the offence is punishable with imprisonment for a term not exceeding one year ;
(iii) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.For the purposes of this section the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the more severe punishment. According to Section 469, the period of limitation, in relation to an offender, shall commence --
(i) on the date of the offence; or
(ii) where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier, or
(iii) where it is not known by whom the offence was committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier. In computing the said period, the day from which such period is to be computed shall be excluded.Then Section 470 of the Code excludes the time in certain cases. Section 471 says that were the period of limitation expires on a day when the Court is closed the court may take cognizance on the day on which it re-opens. Then Section 472 says that in the case of a continuing offence, a fresh period of a limitation shall begin to run at every moment of time during which the offence continues. Then Section 473 says that not withstanding anything contained in above said provisions court may take cognizance of an offence even after the expiry of period of limitation. In State of Punjab v. Sarwan Singh, AIR 1981 SC 1054, it was observed that object of Criminal Procedure Code in putting a bar of limitation on prosecution was clearly to prevent the parties from filing cases after long time, as a result of which material evidence may disappear and also to prevent abuse of process of court by filing vexatious and belated prosecutions after long time. The object which the statute seek to such serve is clearly in consonance with the concept of fairness of trial as enshrined in Article 21 of Constitution. It is therefore, of utmost importance that any prosecution whether by State or private complainant must abide by letter of law or take the risk of prosecution failing on the ground of limitation. In V. Radha Mandhari v. V. Venkata Reddy, 1993 SCC (Cri.) 571, it was observed the provision of Section 468 and Section 473 of the Cr.P.C. cannot be treated as provisions parallel to the periods of limitation provided in the Limitation Act and the requirement of satisfying the Court that there was sufficient cause for condonation of delay under section 5 of that Act. There is a basic difference between Section 5 of the Limitation Act and Section 473 of the Code. For exercise of power under Section 5 of the Limitation Act, the onus is on the appellant or the applicant to satisfy the Court that there was sufficient cause for condonation of delay whereas Section 473 enjoins a duty on the Court to examine not only whether such delay has been explained but as to whether it is the requirement of the justice to condone or ignore such delay. As such, whenever the bar of Section 468 is applicable, the Court has to apply its mind on the question, whether it is necessary to condone such delay in the interest of justice. While examining the question as to whether it is necessary to condone the delay in the interest of justice the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim.