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Class : 6th semester (3rd year)

Paper Code : 310

Subject : The Code of Criminal Procedure (Cr.PC)

UNIT: 1 INTRODUCTION

The substantive laws like IPC need a mechanism to be implemented and this
mechanism was created and named as the criminal procedure code, 1983. In order
for the substantive laws to come into operation, procedural law is imperative. So,
procedural and substantive laws are supplementary to each other.

The purpose behind drafting CrPC was to ensure that the accused and the victim
get equal opportunity to a fair trial. The purpose of drafting the code can be
fulfilled if each and every provision of the code passed the test of a) simplicity b)
expediency c) affordability.

The code is consolidating and amending. It mentions the procedure of applying

substantive law but in case any special law already exists where the procedure for
such law is already mentioned, then that law would be given precedence over it. It
is deemed to be exhaustive but if any subject is not mentioned in the CrPC then the
court is empowered to frame laws on the same. Any claim under the code will lie
only after the code came in existence i.e. 1973.

The code has shelled out responsibility to different sections of the society for
administering the right procedure. The process starts with the role of the common
people to feed the police with the information of occurrence of any crime. The
responsibility shifts to the police when it undertakes the next step of investigation.
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It spans from knowing about the crime to filing the charge sheet. After this come
the role of the magistrate where inquiry follows investigation. If the inquiry
convinces the magistrate of the charge, then it leads to trial. Trial lends the justice
delivery system in the hands of prosecutors and conviction or acquittal leaves it in
the hands of prison authorities and the common people again. So, the code has
provision to regulate all these five steps involved in enforcement of the substantive
law.

Object and Importance of Cr.P.C

The basic purpose of the Criminal Procedure Code, among other things, is to
ensure a fair trial where none of the rights of the accused are compromised nor are
they unjustifiably favored. Furthermore, to ensure that the judge concerned hears
all parties who are relevant to the trial, their presence at the trial is obviously
important. That is why an entire chapter of the Code concerns itself with the
process of ensuring the attendance of any person concerned with the case,
including an accused or a witness, through various measures, viz. summons,
warrant, proclamation and attachment of property. The latter two are used when
the former do not yield satisfactory results. Many would argue that the simplest
way to ensure the presence of a person, especially an accused, would be to arrest
him in all circumstances and detain him so that his presence is beyond doubt.
However, such an action would go against the fundamental right that this
Constitution provides with, the right to personal liberty under Article 21. Criminal
law hinges on that right and no person can be deprived of this right unless very
cogent reasons are present which argue against his release. This is why the Code
envisages both warrant and summons to procure the attendance of persons
concerned. In this project, I will look into the four variants used to procure the
attendance of persons for trial. Of course, since the provisions are mostly
procedural in nature, few substantive issues arise but interpretation of these
provisions nevertheless gives rise to various issues. Moreover, the way they are
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used by the various functionaries involved viz. the judiciary and the police, also
has given rise to substantive literature on this. Furthermore, I will give special
attention to procurement of attendance of witnesses and how the provisions have
been used by the functionaries in ensuring that witnesses attend the trial.

The CrPC contains 484 Sections and XXXVII Chapters. The CrPC describes that
all offences in Indian Penal Code 1860 shall be investigated, inquired into, tried
unless it is otherwise dealt. However, CrPC does not affect any special law, local
law or any special jurisdiction or power or procedure provided in any other law.

Some of the basic features of CrPC are discussed below:

• Organisation of Criminal Courts: The CrPC provides a uniform set of criminal

courts throughout the territory of India by conferring jurisdiction, powers and
functions. The CrPC mandates separation of judiciary from the executive, which
enables the state to work with independently and impartially without interference
of any other organs of the State.

• Fair Trial: Under CrPC every person is entitled to fair trial and hearing by an
independent and impartial Tribunal. The accused is presumed to be innocent, until
the charges are proved. The accused has right to be represented by his counsel.
Further, the accused has a right to cross-examine the witnesses of the opposite
party.

• Protection to the accused person: Special provisions have been made to protect
the interest of the accused person. The Supreme Court also gave some important
guidelines with respect to the rights of the accused person in D.K.Basu v. State of
West Bengal, AIR 1997 SC 610.

• Special Provision for the protection of the accused person: Free legal aid
provision is made if the accused person is poor and cannot afford the costs of the
litigation. In petty cases the accused can even plead guilty by post and send the
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amount of fine specified in the summons to the court, therefore he need not appear
before the court.

• Judicial Magistrates are under the control of High Courts: All Judicial
Magistrates shall work under the control of High Courts of the respective states.
The Judicial Magistrates in Metropolitan cities are named as Metropolitan
Magistrates. The CrPC abolished the appointing of honorary Magistrates and
Justices of peace.

• Trial Procedure: Procedure for trial of summary cases shall be the same as that
for summons cases except where it is provided otherwise. The Court of Sessions
also have been given power to exercise the revisional jurisdiction in addition to the
High Courts. An appeal by the state against the order of the acquittal can be filed
only after obtaining the leave of the High Court. In case of adjournments, costs
may be awarded against the party seeking adjournment including the prosecution.

• Duty of the Police: If the police officer refuses to record information about
commission of the crime the aggrieved person does have a right to send the
information by post to the superintendent of the police.

Functionaries under the code: include the Magistrates and Judges of the Supreme
Court and High Court, Police, Public Prosecutors, Defence Counsels Correctional
services personnel.

Functions, Duties and Powers of these Machineries:

a) Police: The code does not mention anything about the constitution of police. It
assumes the existence of police and devolves various powers and responsibilities
on to it. The police force is an instrument for the prevention and detection of crime.
The administration of police in a district is done by DSP (District Superintendent
of Police) under the direction and control of District Magistrate. Every police
officer appointed to the police force other than the Inspector-General of Police and
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the District superintendent of police receives a certificate in the prescribed form by

the virtue of which he is vested with the powers, functions and privileges of a
police officer which shall be cease to be effective and shall be returned forthwith
when the police officer ceases to be a police officer. The CrPC confers specific
powers such as power to make arrest, search and investigate on the members of the
police force who are enrolled as police officers. Wider powers have been given to
police officers who are in charge of a police station. As per section 36 of CrPC
which reads as ―the police officers superior in charge of a police station may
exercise the powers of such officials.‖

b) Prosecutor

If the crime is of cognizable in nature, the state participates in a criminal trial as a

party against the accused. Public Prosecutor or Assistant Public Prosecutor is the
state counsel for such trials. Its main duty is to conduct Prosecutions on behalf of
the state. The public Prosecutor cannot appear on behalf of accused.[ix] According
to the prevailing practice, in respect of cases initiated on police reports, the
prosecution is conducted by the Assistant Public Prosecutor and in cases initiated
on a private complaint; the prosecution is either conducted by the complainant
himself or by his duly authorized counsel.

c) Defence Counsel: According to section 303, any person accused of an offence

before a criminal court has a right to be defended by a pleader of his choice. Such
pleaders are not in regular employment of the state and a paid remuneration by the
accused person. Since, a qualified legal practitioner on behalf of the accused is
essential for ensuring a fair trial, section 304 provides that if the accused does not
have means to hire a pleader , the court shall assign a pleader for him at state‘s
expense. At present there are several schemes through which an indigent accused
can get free legal aid such as Legal Aid Scheme of State, Bar Association, Legal
Aid and Service Board and Supreme Court Senior Advocates Free Legal Aid
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society. The legal Services Authorities Act, 1987 also provides free legal aid for
the needy.

d) Prison authorities and Correctional Services Personnel: The court presumes

the existence of Prisons and the Prison authorities. It empowers Magistrates and
judges under certain circumstances to order detention of under trial prisoners in jail
during the pendency of the proceedings. It also empowers the courts to impose
sentences of imprisonment on convicted persons and to send them to prison
authorities. However, the code does not make specific provisions for creation,
working and control of such machinery. These matters are dealt with in separate
acts such as The Prisons Act 1894, The Prisoners Act 1900 and The Probation of
Offenders Act 1958.

Basic Concept:

1.)Bailable offences
Bailable offences are those offences or crimes that are not very serious in nature. In
such cases bail is a right and the arrested person must be released after depositing
the bail with the police. The police have the power to grant bail in these types of
cases. When any person accused for a bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or appears or is
brought before a Court, and is prepared at any time while in the custody of such
officer or at any stage of the proceeding before such Court to give bail, such person
shall be released on bail. In case of a bailable offence bail is a matter of right. If
such officer or Court, thinks it fit such person maybe released on a personal bond
without sureties. In case of bailable offence, one has to only file the bail bonds and
no application is required.
2.)Non-bailable offences
In case a person is accused of a non-bailable offence it is a matter of discretion of
the court to grant or refuse bail and application has to be made in court to grant
bail.
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1. When a person accused of, or suspected of, the commission of any non-
bailable offence is arrested or detained without warrant by an officer in
charge of a police station or appears or is brought before a Court other than
the High Court or Court of Session, he may be released on bail, but –
Provided that the Court may direct that a person referred to in clause (i) or
clause (ii) as above, be released on bail if such person is under the age of
sixteen years or is a woman or is sick or infirm: Provided further that the
Court may also direct that a person referred to in clause (ii) be released on
bail if it is satisfied that it is just and proper so to do for any other special
reason: Provided also that the mere fact that an accused may be required for
being identified by witnesses during investigation shall not be sufficient
ground for refusing to grant bail if he is otherwise entitled to be released on
bail and gives an undertaking that he shall comply with such directions as
may be given by the Court.
i. such person shall not be 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, 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 :

2. If it appears to such officer or Court at any stage of the investigation; inquiry

or trial, as the case may be, that there are not reasonable grounds for
believing that the accused has committed non-bailable offence, but that there
are sufficient grounds for further inquiry into his guilt, the accused shall,
subject to the provision of section 446-A and pending such inquiry, be
released on bail or, at the discretion of such officer or Court, on the
execution by him of a bond without sureties for his appearance as hereinafter
provided.
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3. When a person accused or suspected of the commission of an offence

punishable with imprisonment which may extend to seven years or more or
of an offence under Chapter 6, Chapter 16 or Chapter 17 of the Indian Penal
Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any
such offence, is released on bail under sub-section (!), the Court may impose
any condition which the Court considers necessary-
a. in order to ensure that such person shall attend in accordance with the
conditions of the bond executed under this Chapter, or
b. in order to ensure that such person shall not commit an offence similar
to the offence of which he is accused or of the commission of which
he is suspected, or
c. otherwise in the interests of justice.

4. An officer or a Court releasing any person on bail under sub-section (1) or

sub-section (2), shall record in writing his or its reasons or special reasons
for so doing.
5. Any Court, which has released a person on bail under sub-section (1) or sub-
section (2), may, if it considers it necessary so to do, direct that such person
be arrested and commit him to custody.
6. If, in any case triable by a Magistrate, the trial of a person accused of any
non-bailable offence is not concluded within a period of sixty days from the
first date fixed for taking evidence in the case, such person shall, if he is if
custody during the whole of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons to be recorded in writing,
the Magistrate otherwise directs.
7. If, at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the Court is of opinion
that there are reasonable grounds for believing that the accused is not guilty
of any such offence, it shall release the accused if he is in custody, on the
execution by him of a bond without sureties for his appearance to hear
judgment deliver.
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3.)Cognizable Offence

Section 2 (c) of the Criminal Procedure Code, 1973 defines Cognizable offences.
Cognizable offence means an offence for which, and `cognizable case' means a
case in which, a police officer may, in accordance with the First Schedule or under
any other law for the time being in force, arrest without warrant. Cognizable
offenses are those offenses which are serious in nature. Example- Murder, Rape,
Dowry Death, Kidnapping, Theft, Criminal Breach of Trust, Unnatural Offenses.
Section 154 of CrPc provides, that under a Cognizable offense or case, The Police
Officer has to receive the First Information Report (FIR) relating to the cognizable
offense, which can be without the Magistrate‘s permission and enter it in the
General Diary and immediately start the investigation. If a Cognizable offense has
been committed, a Police Officer can investigate without the Magistrate‘s
permission.

The Supreme Court of India, in Lalita Kumari vs. Govt. of UP on 12

November, 2013 held that ‗the police must compulsorily register the FIR on
receiving a complaint if the information discloses a cognizable offence, and no
preliminary inquiry is permissible in such a situation‘. The police cannot refuse to
register the case on the ground that it is either not reliable or credible (Smt.
Gurmito vs. State of Punjab And Ors 1996 CriLJ 1254 P&H). Further ,
refusal to record FIR on the ground that the place of crime does not fall within the
territorial jurisdiction of the police station, amount to dereliction of duty.
Information about cognizable offence would have to be recorded and forwarded to
the police station having jurisdiction (State of Andhra Pradesh vs. Punati
Ramulu And Others, AIR 1993 SC 2644). It is the duty of the officer-in-charge
of the police station to register an FIR when investigation under section 156(3) of
CrPC is directed by the Magistrate, even when the Magistrate explicitly does not
say so (Mohd. Yoysuf vs. Afaq Jahan, (2006), SCC 627)
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4.)Non Cognizable Offence

A non-cognizable offence has been defined in Criminal Procedure Code as

follows, "`non-cognizable offence' means an offence for which, and `non-
cognizable case' means a case in which, a police officer has no authority to arrest
without warrant". Non-Cognizable offenses are those which are not much serious
in nature. Example- Assault, Cheating, Forgery, Defamation. Section 155 of CrPc
provides that in a non-cognizable offense or case, the police officer cannot receive
or record the FIR unless he obtains prior permission from the Magistrate. Under a
Non-Cognizable offense/case, in order to start the investigation, it is important for
the police officer to obtain the permission from the Magistrate.

In such offences for arrest, following steps have to be followed:

a)Filing of complaint/F.I.R.

b)Investigation

c)Charge sheet,

d)Charge sheet to be filed in court

e)Trial

f)Final order of arrest if case has been made out.

Kunhumuhammed v. State of Kerala the court held that the report of a police
officer following an investigation contrary to S. 155(2)[3] could be treated as
complaint under S. 2(d) and S. 190(1)(a). It is necessary that at the commencement
of the investigation the police officer is led to believe that the case involved the
commission of a cognizable offence or has a doubt about the same and
investigation establishes only commission of a non- cognizable offence.
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Ordinarily a private citizen intending to initiate criminal proceedings in respect of

an offence has two courses open to him. He may lodge an FIR before the police if
the offence is cognizable one; or he may lodge a complaint before a competent
judicial magistrate irrespective of whether the offence is cognizable or non-
cognizable.

In Chinnaswami v. Kuppuswami, it was observed that the object of the Code is

to ensure the freedom and safety of the subject in that it gives him the right to
come to court provided he considers that a wrong has been done to the Republic or
him and be a check upon police vagaries.

5.)Complaint

―Complaint‖ means any allegation made orally or in writing to a Magistrate, with

a view to his taking action under the Code of Criminal Procedure that some person,
whether known or unknown, has committed an offence, but it does not include a
police report. [Section 2 (d)]

To constitute a complaint there must be an allegation made with a view to the

recipient taking action under the Code, charging some person with a particular
offence. A mere presentation of petition to a Magistrate to enable him to take
administrative action is not a complaint within the terms of the definition.

It must be presented to him with a view to his taking action under the Criminal
Procedure Code. A complaint need not necessarily be made by the person
aggrieved but may be made by any person aware of the offence.

Its essentials:
The main essentials of a complaint are:
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1. The allegation must be made to a Magistrate and not to a judge. A police officer
is not a Magistrate and as such a petition or information sent to him is not a
complaint.

2. The allegation must be made with a view to the Magistrate‘s taking action under
the Code. A mere statement to a Magistrate by way of information without any
intention of asking him to take action is not a complaint.

3. The allegation must be that an offence has been committed. It is not necessary
that a particular offence be stated: only the allegation of fact must constitute an
offence. The mention of a wrong section does not vitiate the character of a
complaint. The complaint need not specify any offender or even the section of the
law which makes the act or omission punishable.

4. The allegation must be made orally or in writing. It need not set out all the facts
on which the accused is to be charged, but must contain a statement of true facts
relied on as constituting the offence in ordinary and concise language admitting of
no ambiguity.

(b) A complaint need not necessarily be made by the person injured but may be
made by any person aware of the offence. In case of the defiance of general law,
any person, whether he has suffered any particular injury or not has a right to
complain. The court will, therefore, take cognizance of the above complaint.

It is a document submitted by the complainant to file a criminal complainant

against an accused. In layman‘s language, it is simply the written allegations of the
complainant and it contains a summary of the facts of the case he seeks to present
and the relief he seeks for the same.
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If you are filing a plaint, you are the ‗plaintiff‘ and the person whom you are filing
against, is the ‗defendant‘. There are certain regulations set by the ‗Limitation
Act,1963‘ for filing of plaints.For instance, there is a time limit within which the
plant should be filed, and it differs for different courts.
The Plaint, as per the Act, should be filed within 90 days in High court and within
30 days from the date of the crime that is being appealed against.

The details required to be mentioned in the plaint are:

A. The name of the court
B. The nature of the complaint
C. The name and addresses of both the parties.

All of this is normally typed in English, with double-line spacing. It is also

important to remember that it has to be filed within a certain time limit of the
occurrence of the act in question as prescribed by the Limitation Act. A plaint filed
after an unreasonable delay will not be entertained in the court of law. It should
also contain a verification from the complainant with an assurance that all facts
stated in the plaint are correct and true to his knowledge. As the plaint procedure is
simple, and if you have enough proof in hand, you can file them with the help of an
expert in no time.

6.) The Charge : Sections 211-224 and 464 of CrPC

Charge is a first notice to accused of his offence, it should convey to him in
sufficient clearness and certainty what the prosecution intends to prove and which
case the accused is to meet. The charge sheet corresponds to indictment under
English Law.
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Section 2(b) of the Code of Criminal Procedure (in short crpc) defines a charge
as including any head of charge, when the charge contains more than one.
However the Code of Criminal Procedure does not define what a charge is. In law
a charge may be define as a precise formulation of a specific accusation made
against a person of an offence alleged to have been committed by him.

Purpose and Object

The purpose of a charge is to tell the accused, as precisely and concisely as

possible, about the matter with which he is charged and the object of a charge is to
warn the accused of the case which he has to answer. The forms in which the
charges may be framed are set forth in Second Schedule of the Code of Criminal
Procedure.

The Legal Provisions

The provisions regarding charge are contained in Sections 211 to 224 and 464 of
the crpc. Sections 211 to 214 of crpc deals with what a charge should contain.
Section 211 of the crpc lays down that every charge shall contain the following
particulars:-

(1) The offence with which the accused is charged.

(2) If the law which creats the offence gives it, any specific name, the offence may
be described in the charge by that name.
(3) If the law which creats the offence does not give it any specific name, so much
of the definition of the offence must be stated as to give the acused 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
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particular case.
(6) The charge shall be written in the language of the court.
(7) If the accused having been previously convicted of any offence is liable, by
reason of such previous conviction to enhanced punishment or to punishment of a
different kind, for a subsequent offence and it is intended to prove such previous
conviction for the purpose of affecting the punishment, which the court may think
fit to award for the subsequent offence the fact, date and place of the previous
conviction shall be stated in the charge; and if such statement has been omitted, the
court may add it at any time before sentence is passed.

Section 212, crpc then provides that the charge must contain such particulars as to
the time and place of the alleged offence, and the person, if any against whom, or
the thing if any, in respect of which, the offence was committed as are reasonably
sufficient to give to the accused notice of the matter with which he is charged.
According to Section 212(2), crpc 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 the 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, crpc lays down that if the nature of the case is such that the
particulars mentioned in Sections 211 and 212 of crpc do not give to the accused
sufficient notice of the matter with which he is charged, the charge must also
mention such particulars of the manner in which the alleged offence was
committed as would be sufficient for that purpose. e.g. A is accused of cheating B
at a given time and place. The charge must set out the manner in which A cheated
B.

Effect of a defective charge

The matter have been provided in Sections 215 and 464 of the Code of Criminal
Procedure. The two sections read together lay down that whatever the irregularity
in framing of a charge, it is not fatal unless there is prejudice caused to the
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accused. The mere omission to frame a charge or a mere defect in the charge is no
ground for setting aside a conviction. Procedural laws are designed to subserve the
ends of justice and not to frustrate them by mere technicalities. The object of the
charge is to give an accused notice of the matter he is charged with. If the
necessary information is conveyed to him and no prejudice is caused to him
because of the charges, the accused cannot succeed by merely showing that the
charges framed were defective. Nor could a conviction recorded on charges under
wrong provisions be reversed if the accused was informed of the details of the
offence committed and thus no prejudice was caused to him.

The court may alter or add to any charge at any time before the judgment is
pronounced (sections 216 and 217, crpc). But if a person has been charged the
court cannot drop it. He has either to be convicted or acquitted.
7.) Police Report
The term ―report" has been defined to mean ―To give an account of, to relate, to
tell, to convey or disseminate information, communicate; deliver information;
make an announcement; make known; speak about, specify. It is a formal oral or
written presentation of facts or a recommendation for action . The expression
―police report" has been defined under the Code of Criminal Procedure as meaning
a report forwarded by a Police Officer to a Magistrate under sub section (2) of
Section 173 . Simply stated, final report culminates the investigation process in a
formal recommendation for action. The report under Section 173 is a report on the
results of the investigation made under Chapter XIV, which means an investigation
made under Section 155 (2) or Section 156. The 'Police report' which Section 173
contemplates cannot therefore be a report of a case in respect of which no
investigation under Chapter XIV has taken place or is possible. Police Report has
been interpreted to mean a police report within the meaning of Section 170.

There are three different kinds of reports to be made by police officers at three
different stages of investigation. (1) Section 157 requires a preliminary report from
the officer in charge of a police station to the Magistrate. (2) Section 168 requires
reports from a subordinate police officer to the officer in charge of the station.
These reports are known as forwarding reports. (3) Section 173 requires a final
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report of the police officer as soon as investigation is completed to the Magistrate.

The report under Sub section (2) of Section 173 is called Completion Report also
known as the Charge Sheet. Such a report is absolutely necessary. The police
charge sheet corresponds to the complaint of a private individual on which
criminal proceedings are initiated. When the charge sheet is sent, the preliminary
stage of investigation and preparation is over. The charge sheet is followed by the
Final report. As the name suggests, the Final report refers to that document which
records the conclusion arrived at by the Police after the investigation process. Final
report is deemed to be final as it signifies the culmination of investigation
.Nevertheless Police has a statutory right to reinvestigate the matter when some
new information comes to light.

This project seeks to trace the status of the Final report submitted by Police under
Section 173 of the Code. The researcher has offered a detailed analysis of the
power of police to reinvestigate the case when some fresh information comes to
light. This project strictly analyses the implications and status of the Final report
submitted by Police under Section 173 of Code of Criminal Procedure.

The police report under Section 173 will contain the facts and conclusions drawn
by police there from. Section 173, Cr.P.C. places a mandatory duty upon the
Investigating Officer to place all detailed materials, both oral and documentary,
before the Magistrate, so that he may consider the same and decide for himself
whether it is a fit case for taking cognizance or not. However, Investigation of an
offence cannot be considered to be inconclusive merely for the reason that the
investigating officer, when he submitted his report in terms of sub-section (2) of S.
173 of the Code to the Magistrate, still awaited the reports of the experts or by
some chance, either inadvertently or by design, failed to append to the police report
such documents or the statements under S. 161 of the Code, although these were
available with him when he submitted the police report to the Magistrate.

When an investigation culminates into a final report as contemplated under Section

173 then the competent court enjoins a duty within its authority sanctioned by law
to scrupulously scrutinize the final report and the accompaniments by applying its
judicial mind and take a decision either to accept or reject the final report.
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It is to be noted here; however, that the practice of not accepting the charge sheet
either on the ground that the same was not submitted on the stipulated days as
fixed for particular police station or it was not accompanied by FSL Report is
patently illegal. There is no question of submitting interim charge sheet.

Magistrate doesn‘t have power to call upon police to submit charge sheet after final
report under Section 173 (1) has been filed .At most he can ask police to carry out
further investigation under Section 156 (3) if not satisfied by final report.

However, merely because the Investigating Agency expresses an opinion in that

report, that it is not a fit case where cognizance should be taken by the Magistrate
under Section 190, Cr.P.C. is by itself no ground for drawing the inference that,
that opinion alone must be taken into consideration as final and the Magistrate
must completely shut his eyes to all the rest of the details, which have been
embodied in the final report, as required under Section 173(a) to (g). Magistrate is
not bound by the conclusions of complaint. On receiving report under Section 173
of the Code, which is a final report, Magistrate has full jurisdiction to differ with
the conclusion of the Police and direct that accused not named in the report sent up
should be put on trial. This exercise of jurisdiction must be in terms of Section
190(1) (b).

The Magistrate has the power under Section 156(3) to direct further investigation
which is clearly an independent power. Magistrate, even after accepting the final
report, can take cognizance of the offence upon a complaint or a protest petition on
same or similar allegations of fact. However, if there is no indication by the
informant that his protest petition may be treated as complaint and the Magistrate
did not also consciously proceed as in a complaint case, mere filing of the protest
petition would not make it obligatory for the Magistrate to treat it as a complaint
case.

8.) Investigation

Section 2 (h) of the CRPC reads as under:

2.(h) ―investigation‖ includes all the proceedings under this Code for the collection
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of evidence conducted by a police officer or by any person (other than a

Magistrate) who is authorised by a Magistrate in this behalf;
Section 2(h) CrPC defines ―investigation‖ and it includes all the proceedings under
the Code for the collection of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorised by a Magistrate in this behalf. It
ends with the formation of the opinion as to whether on the material collected,
there is a case to place the accused before a Magistrate for trial and if so, taking the
necessary steps for the same by filing of a charge-sheet under Section 173. Union
of India v. Prakash P. Hinduja .
A three Judge Bench in H.N. Rishbud v. State of Delhi , while dealing with
investigation, has stated that under the Code, investigation consists generally of the
following steps:
(a) Proceeding to the spot,
(b) Ascertainment of the facts and circumstances of the case,
(c) Discovery and arrest of the suspected offender,
(d) Collection of evidence relating to the commission of the offence which may
consist of:
(i) The examination of various persons (including the accused) and the reduction of
their statements into writing, if the officer thinks fit,
(ii) The search of places or seizure of things considered necessary for the
investigation and to be produced at the trial, and
(e) Formation of the opinion as to whether on the material collected there is a case
to place the accused before a Magistrate for trial and if so taking the necessary
steps for the same by the filing of a chargesheet under Section 173.

In Adri Dharan Das v. State of W.B. it has been opined that:

―arrest is a part of the process of investigation intended to secure several purposes.
The accused may have to be questioned in detail regarding various facets of
motive, preparation, commission and aftermath of the crime and connection of
other persons, if any, in the crime.‖
In Niranjan Singh v. State of U.P.it has been laid down that investigation is not
an inquiry or trial before the Court and that is why the Legislature did not
contemplate any irregularity in investigation as of sufficient importance to vitiate
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or otherwise form any infirmity in the inquiry or trial. In S.N.Sharma v. Bipen

Kumar Tiwari , it has been observed that the power of police to investigate is
independent of any control by the Magistrate. In State of Bihar v. J.A.C.
Saldanha , it has been observed that there is a clear cut and well demarcated
sphere of activity in the field of crime detection and crime punishment and further
investigation of an offence is the field exclusively reserved for the executive in the
Police Department Manubhai Ratilal Patel v. State of Gujarat and
Others,(2013) 1 SCC 314.

Further Investigation
The mere undertaking of a further investigation either by the investigating officer
on his own or upon the directions of the superior police officer or pursuant to a
direction by the Magistrate concerned to whom the report is forwarded does not
mean that the report submitted under Section 173 (2) is abandoned or rejected. It is
only that either the investigating agency or the court concerned is not completely
satisfied with the material collected by the investigating agency and is of the
opinion that possibly some more material is required to be collected in order to
sustain the allegations of the commission of the offence indicated in the report.
Vipul Shital Prasad Agarwal v. State of Gujarat and another, (2013) 1 SCC
197.

9.) Inquiry and Trial

Inquiry:
―Inquiry‖ according to the Code includes every inquiry other than a trial conducted
under this Code, by a Magistrate or court. It relates to proceedings of Magistrates
prior to trial. [Section 2 (g)]

Section 159 of the Code empowers a Magistrate on receipt of a police report under
Section 157, Cr.P.C. to hold a preliminary inquiry in order to ascertain whether an
offence has been committed and, if so, whether any persons should be put upon
their trial.
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In cases triable by the court of sessions and commitment proceedings take place
before a Magistrate, which are in the nature of an inquiry preparatory to sending
the accused to take his trial before the Court of Session.

The Magistrate in such cases is bound either to discharge the accused or commit
him for trial, but he has no power to declare an accused either guilty or innocent of
the offence with which he is charged.

An inquiry is also by a Magistrate in cases triable by himself under S. 202 of the

Code. On a complaint being filed before a Magistrate, he examines the
complainant and the witnesses on oath in order to find out whether there is any
matter which calls for investigation by a criminal court.

The Magistrate may not act on the complaint and dismiss it if he distrusts the
statements of the complainant and the witnesses and the result of the ‗investigation
or inquiry does not establish sufficient ground for proceeding. All these
proceedings are in the nature of inquiry.

Trial:
The term ―trial‖ has not been defined in the Code. It is the examination and
determination of a cause by a judicial tribunal which has jurisdiction over it. It is a
judicial proceeding which ends in conviction or acquittal but not discharge.

In a warrant case the trial begins with the framing of the charge when the accused
is called upon to plead thereto : but in a summons case, as if is not necessary to
frame a formal charge, the ‗trial‘ starts when the accused is brought before the
Magistrate and the particulars of the offence are stated to him. In a case exclusively
triable by a court of session the trial begins only after the committal proceedings
by the Magistrate. The term ―trial‖ includes appeal and revision, which are a
continuation of the first ‗trial‘.
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The function of a court in a criminal trial is to find out whether the person
arraigned before it as the accused‘ is guilty of the offence with which he is
charged. For this purpose it scans the material on record to find whether there is
any reliable and trustworthy evidence on the basis of which it is possible to found
the conviction of the accused and to hold that he is guilty of the offence with which
he is charged. [Harchand Singh v. State of Haryana, 1975 (1) S.C.J. 102]

Both inquiry and trial are judicial proceedings, but they differ in the following
respects:

(1) An enquiry does not necessarily mean an inquiry into an offence for, it may, as
well relate to matters which are not offences, e.g., inquiry made in disputes as to
immovable property with regard to possession, public nuisances, or for the
maintenance of wives and children. A trial on the other hand, is always of an
offence.

(2) An inquiry in respect of an offence never ends in conviction or acquittal; at the

most. It may result in discharge or commitment of the case to sessions. A trial must
invariably end in acquittal or conviction of the accused.

10.) Summons Case

A summons (also known in England and Wales as a claim form and in the
Australian state of New South Wales as a Court Attendance Notice (CAN)) is a
legal document issued by a court (a judicial summons) or by an administrative
agency of government (an administrative summons) for various purposes.

Judicial summons
A judicial summons is served on a person involved in a legal proceeding. Legal
action may be in progress against the person, or the person's presence as witness
may be required. In the former case, the summons will typically announce to the
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person to whom it is directed that a legal proceeding has been started against that
person, and that a case has been initiated in the issuing court. In some jurisdictions,
it may be drafted in legal English difficult for the layman to understand, while
several U.S. states expressly require summonses to be drafted in plain English and
that they must start with this phrase: "Notice! You have been sued."
The summons announces a date by which the person or persons summoned must
either appear in court, or respond in writing to the court or the opposing party or
parties. The summons is the descendant of the writ of the common law. It replaces
the former procedure in common-law countries by which the plaintiff actually had
to ask the sheriff to arrest the defendant in order for the court to obtain personal
jurisdiction in both criminal and civil actions.
Types of summons

Citation
A citation, traffic violation ticket, or notice to appear is a type of summons
prepared and served at the scene of the occurrence by a law enforcement official,
compelling the appearance of a defendant before the local magistrate within a
certain period of time to answer for a minor traffic infraction, misdemeanor, or
other summary offence. Failure to appear within the allotted period of time is a
separate crime of failure to appear.
Civil summons
A civil summons is most often accompanied by a complaint. Depending on the
type of summons, there is often an option to endorse a summons so that the entity
being served may be identified. In the court system in California, for civil
unlimited cases in the superior court, a summons will often have these options to
endorse:

1. as an individual;
2. as the person sued under the fictitious name of __________________;
3. on behalf of (usually for a company); or
4. by personal delivery on __________
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Administrative summons
One example of an administrative summons is found in the tax law of the United
States. The Internal Revenue Code authorizes the U.S. Internal Revenue
Service (IRS) to issue a summons for a taxpayer—or any person having custody of
books of account relating to a business of a taxpayer—to appear before the U.S.
Secretary of the Treasury or his delegate (generally, this means the IRS employee
who issued the summons) at the time and place named in the summons. The person
summoned may be required to produce books, papers, records, or other data, and to
give testimony under oath before an IRS employee.
The IRS is also empowered to issue the section 7602 summons for the purpose of
"inquiring into any offense connected with the administration or enforcement of
the internal revenue laws."
The summons may be enforced by a court order and the law provides a criminal
penalty of up to one year in prison or a fine, or both, for failure to obey the
summons, except that the person summoned may, to the extent applicable, assert
a privilege against self incrimination or other evidentiary privileges, if applicable.
In the U.S. immigration court system, a "Notice to Appear" is an administrative
summons ordering a respondent to appear before an immigration court for removal
proceedings.

Warrant Case

A document issued by a legal or government official authorizing the police or

another body to make an arrest, search premises, or carry out some other action
relating to the administration of justice. An order (writ) of a court which directs a
law enforcement officer (usually a sheriff) to arrest and bring a person before the
judge, such as a person who is charged with a crime, convicted of a crime but
failed to appear for sentencing, owes a fine or is in contempt of court. A "bench
warrant" is an order to appear issued by the court when a person does not appear
for a hearing, which can be resolved by posting bail or appearing. A "search
warrant" is an order permitting a law enforcement officer to search a particular
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premises and/or person for certain types of evidence, based on a declaration by a

law enforcement official, including a district attorney.

UNIT-2: INTRODUCTION

Arrest and Rights of an Arrested Person

This term ―Arrest‖ is very common term that we pick up a lot in our day today life.
Normally, we see a person, who do or have done something against the law, get
arrested. Generally, the term ―arrest‖ in its ordinary sense, means the apprehension
or restraint or the deprivation of one‘s personal liberty. Let‘s understand this term
in Indian law, Criminal procedure Code, 1973 in its chapter V (section 41 to 60)
deals with Arrest of a person. Ironically, Code has not defined the term ―Arrest‖.
Every deprivation of liberty or physical restraint is not arrest. Only the deprivation
of liberty by legal authority or at least by apparent legal authority, in a
professionally competent and adept manner amounts to arrest. Thus, we can say
arrest means ‗apprehension of a person by legal authority resulting in deprivation
of his liberty‘. An arrest consists of taking into custody of another person under
authority empowered by law for the purpose of holding or detaining him to answer
a criminal charge and preventing the commission of a criminal offence. However,
a person against whom no accusation of crime has been made may be arrested
/detained under a statute for certain purposes like removal in safe custody from one
place to another, for example – removal of a minor girl from a brothel. One thing
to be noted that ‗custody‘ and ‗arrest‘ donot have same meaning. Taking of a
person into judicial custody is followed after the arrest of the person by Magistrate
on appearance or surrender. In every arrest there is custody but not vice versa.
Thus, mere taking into custody of a person an authority empowered to arrest may
not necessarily amount to arrest. This code propose two types of arrests: (i) arrest
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made in pursuance of a warrant issued by a magistrate (ii) arrest made without

such a warrant but made in accidence with some legal provision permitting such
arrest.

WHO CAN ARREST?

Arrest can be made by police officer, Magistrate or any private person, like you or
me can also arrest a person but that can made only in accordance with some legal
provision permitting such arrest. The code exempts the members of Armed forces
from being arrested for anything done by them in discharge of their official duties
except after obtaining the consent of the government (Sec. 45).

Any private individual may arrest a person only when the person a proclaimed
offender and the person commits a non bailable offence and cognizable offences in
his presence (sec. 43). Any magistrate (whether Executive or judicial) may arrest a
person without a warrant (sec. 44). Under section 41, Arrest by police officer can
be made without warrant only in cognizable offences (sec.2(c)) and with warrant in
non- cognizable offence (sec 2 (l)). Cognizable offences are of more serious nature
as compare to non cognizable offences i.e. Murder, kidnapping, theft, etc.

HOW ARREST IS MADE?

Sec. 46 describes the mode in which arrests are to be made (whether with or
without warrant). In making an arrest the police officer /other person making the
same actually touches or confines the body of the person to be arrested unless there
be a submission to custody by words or action. When the police arrests a person in
execution of a warrant of arrest obtained from a magistrate, the person so
arrested shall not be handcuffed unless the police have obtained orders from the
Magistrate in this regard. The person making an arrest may use ‗all means‘
necessary to make arrest if person to be arrested resists or attempts to evade the
arrest. A police officer may, for the purpose of arresting without warrant any
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person whom is authorized to arrest, pursue such person into any place in India
(sec 48). Arrested person shall not be subjected to unnecessary restraint and
physical inconvenience unless it‘s necessary to do so to prevent his escape (sec.
49).

Rights Of Arrested Person

1. Right To Silence

The ‗right to silence‘ has been derived from common law principles. It means that
normally courts or tribunals should not conclude that the person is guilty of any
conduct merely because he has not responded to questions which were asked by
the police or by the court. The Justice Malimath Committee in its report was of the
opinion that right to silence is very much needed in societies where anyone can be
arbitrarily held guilty of any charge. As per the law of evidence, any statement or
confession made to a police officer is not admissible in a court of law. Right to
silence is mainly concerned about confession. The breaking of silence by the
accused can be before a magistrate but should be voluntary and without any duress
or inducement.

As per Article 20(3) of Constitution of India guarantees every person has been
given a right against self-incrimination, it states that any person who has been
accused of any offence, shall not be compelled to be a witness against himself. The
same was again reiterated by a decision of Supreme Court in the case of Nandini
Sathpathy v. P.L.Dani; wherein it was held that no one can forcibly extract
statements from the accused and that the accused has the right to keep silent during
the course of interrogation (investigation). The Supreme Court again in the year
2010, held that narco-analysis, brain mapping and lie detector test are in violation
of Article 20(3) of the Constitution of India.
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2. Right To Know The Grounds of Arrest

2.1) As per Section 50(1) of Cr.P.C., every person who is being arrested by any
police officer, without any warrant, is entitled to know the full particulars of
offence for which he is being arrested, and that the police officer is duty bound to
tell the accused such particulars and cannot deny it.

2.2) As per Section 55 of Cr.P.C., when any person is being arrested by any police
officer, who is deputed by a senior police officer, then such subordinate officer
shall before making such arrest, notify the person to be arrested the substance of
the written order given by the senior police officer specifying the offence or other
cause for which the arrest is to be made. If this provision is not complied with, then
the arrest would be rendered illegal.

2.3) if the person is being arrested under a warrant, then as per Section 75 of
Cr.P.C, any person who is executing such warrant must notify the person to be
arrested, the particulars of such warrant, or even show such warrant if needed. If
the substance of the warrant is not notified, the arrest would be unlawful.

2.4) the Constitution of India also confers this right as one of the fundamental
rights. Article 22(2) of the constitution provides that ―no person who is arrested
shall be detained in custody without being informed as soon as may be, of the
grounds for such arrest nor shall he be denied the right to consult, and to be
defended by a legal practitioner of his choice.‖

3. Information Regarding The Right To Be Released On Bail

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Any person who is to be arrested without a warrant and is not accused of a non-
bailable offence has to be informed by the police officer that he is entitled to be
released on bail on payment of the surety amount. This helps persons who are
arrested for bailable offences and are not aware of their right to be released on bail.

4. Right To Be Taken Before A Magistrate Without Delay

Irrespective of the fact, that whether the arrest was made with or without a warrant,
the person who is making such arrest has to bring the arrested person before a
judicial officer without any unnecessary delay. Further, the arrested person has to
be confined in police station only and nowhere else, before taking him to the
Magistrate. These matters have been provided in Cr.P.C. under sections 56 and 76
which are as given below:

Section 56 of Cr.P.C. states that ―Person arrested to be taken before Magistrate or

officer in charge of police station- A police officer making an arrest without
warrant shall, without unnecessary delay and subject to the provisions herein
contained as to bail, take or send the person arrested before a Magistrate having
jurisdiction in the case, or before the officer in charge of a police station‖.

Section 76 of Cr.P.C. states that ―Person arrested to be brought before Court

without delay- The police officer or other person executing a warrant of arrest shall
(subject to the provisions of section 71 as to security) without unnecessary delay
bring the person arrested before the Court before which he is required by law to
produce such person‖.
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Further, it has been mentioned in the proviso of Section 76 that such delay shall
not exceed 24 hours in any case. While calculating the time period of 24 hours, the
time necessary for the journey is to be excluded. The same has been enumerated in
the Constitution as a Fundamental Right under Article 22(2). This right has been
created with a view to eliminate the possibility of police officials from extracting
confessions or compelling a person to give information. If the police officials fails
to produce an arrested person before a magistrate within 24 hours of the arrest, the
police officials shall be held guilty of wrongful detention.

6. Rights at Trial

6.1) Right To A Fair Trial

The Constitution under Article 14 guarantees the right to equality before the law.
The Code of Criminal Procedure also provides that for a trial to be fair, it must be
an open court trial. This provision is designed to ensure that convictions are not
obtained in secret. In some exceptional cases the trial may be held in camera.

6.2) Right To A Speedy Trial by the Constitution of India

Though this right has not been specifically mentioned in the Constitution, however,
the SC in the Hussainara Khatoon case has made it mandatory that the
investigation in the trial must be conducted ―as expeditiously as possible.‖

In cases, wherein the maximum punishment that can be imposed is 2 years, once
the accused is arrested, the investigation for the trial has to be completed within the
period of six months or stopped on receiving an order from the Magistrate, unless
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the Magistrate receives and accepts, with his reasons in writing, that there is cause
to extend the investigation.

7. Right To Consult A Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own
choice. This has been enshrined as a fundamental right in Article 22(1) of the
Constitution of India, which cannot be denied in any case. Section 50(3) of the
Code also lays down that the person against whom proceedings are initiated has a
right to be defended by a pleader of his choice. This starts begins as soon as the
person is arrested. The consultation with the lawyer may be in the presence of
police officer but not within his hearing.

8. Rights Of Free Legal Aid

The Supreme Court in the case of in Khatri (II) v. the State of Bihar has held that
the state is under a constitutional obligation (implicit in Article 21) to provide free
legal aid to an indigent accused person as is implicit in Article 21 of the
Constitution. This right does not come into picture only at the time of trial but
exists at the time when the accused is produced the first time before the magistrate,
as also when remanded from time to time. The Supreme Court further states that
failure on the part of the state to inform the accused of this right will vitiate the
whole process of trial. Therefore, a duty is imposed on all magistrates and courts to
inform the indigent accused of his right to get free legal aid. The apex court has
gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it
has been laid down that this constitutional right cannot be denied if the accused
failed to apply for it. It is clear that unless refused, failure to provide free legal aid
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to an indigent accused would vitiate the trial entailing setting aside of the
conviction and sentence.

9. Right To Be Examined By A Medical Practitioner

Section 54 of Cr.P.C:- ―Examination of arrested person by medical practitioner at

the request of the arrested person- When a person who is arrested, whether on a
charge or otherwise, alleges, at the time when he is produced before a Magistrate
or at any time during the period of his detention in custody that the examination of
his body will afford evidence which will disprove the commission by him of any
offence or which will establish 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.‖

Important case

D.K. Basu v. State of W.B

Despite several attempts being made by issuing guidelines in various cases, to

eradicate the possibility of the committing torture by the police officials, there
were frequent instances of police atrocities and custodial deaths. Therefore, the
Supreme Court, in this case, issued some guidelines which were required to be
mandatorily followed in all cases of arrest or detention. Following are some of the
important ones-
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1. The person who is going to arrest any accused should bear accurate,
visible, and clear identification along with their name tags with their
designation.
2. The police officer who is arresting the arrestee must prepare a memo of
arrest, and it should be attested by at least one person who may either be a
family member of the arrestee or any other respectable person in the
locality. The memo must contain the date and time of arrest and must also
be countersigned by the arrestee.
3. If the person who has signed the memo of arrest is not a family member,
relative or friend of the arrestee, then the arrestee is entitled to have one
friend or relative being informed about his arrest as soon as possible.
4. The person arrested must be made aware of this right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained.
5. Entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend
of the person who has been informed of the arrest and the names and
particulars of the police officials in whose custody the arrestee is.
6. The police officer should, on the request of arrestee, record at the time of
his arrest major and minor injuries, if any, present on arrestee‘s body,
after subjecting the arrestee to an examination. The ―Inspection Memo‖
must be signed both by the arrestee and the police official making such
arrest, and one copy of that memo must be provided to the arrestee.
7. Copies of all the documents including the memo of arrest, referred to
above, should be sent to illaqa Magistrate for his record.
8. The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation.
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9. The court also ordered that in every district and state headquarters, a
police control room should be established, wherein every arrest which is
being made must be reported by the police officer making such arrest
within 12 hours of such arrest, and it should be displayed on a
conspicuous notice board.

The Court also emphasized failure to fulfill the given requirements would render
the concerned officer liable for contempt of court along with departmental actions,
and such proceedings can be initiated in any High Court having the territorial
jurisdiction over the matter.

b.) Provision for Bail under the Code

The Criminal Procedure Code, 1973 or Cr.P.C. talks in details about the bail
process and how it is obtained. However, it does not define bail. To get a glimpse
of the law, we need to go deeper to section 2(a) Cr.P.C. wherein it says that
bailable offense means an offense which is shown as bailable in the First Schedule
or which is made bailable by any other law for the time being enforce, and non-
bailable offense means any other offense.

Thus, section 2(a) Cr.P.C. talks about schedule which refers to all the offenses
under the Indian Penal Code and puts them into bailable and on bailable categories
which have been determined according to the nature of the crime. For instance, all
serious offenses like offenses punishable with imprisonment for three years or
more have seen considered as non bailable offenses, all other offenses have been
kept bailable offenses.

Later part of the Cr.P.C. talks about the process of bail under sections 436 to 450
wherein it has the provisions for the grant of bail and bonds in criminal cases and
also talks about the amount of security that is to be paid by the accused to secure
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his release has not been mentioned in the Cr.P.C. However, still a lot of
discretionary power has been vested into the court to put a monetary cap on the
bond.

Do I have right to bail?

The Supreme Court of India has delivered several cases wherein it has reminded
that the basic rule is bail and not jail. One such instance came in State Of
Rajasthan, Jaipur vs Balchand @ Baliay case which the apex court decided on 20
September, 1977 and held that the basic rule is bail, not jail, except-where there are
circumstances suggestive of fleeing from justice or thwarting the course of justice
or creating other troubles in the shape of repeating offences or intimidating
witnesses and the like by the petitioner who seeks enlargement on bail from the
court.

The bench of Krishna iyer, V.R. had observed that when considering the question
of bail, the gravity of the offence involved and the heinousness of the crime which
are likely to induce the petitioner to avoid the course of justice must weigh with the
court. Taking into consideration the facts of the case the apex court held that the
circumstances and the social milieu do not militate against the petitioner being
granted bail.

What is the process of bail?

When you are an accused of some crime and arrested to record your statement and
take information like the name, residence address, birth place, charge filed against
you, etc. The police officer may also check back the criminal record if any in the
police station and ask for finger prints to files a case against you. The crimes that
are bailable and simple, you will be allowed to apply for bail immediately.

However, if the crime is a little bit complex and non-bailable, you may wait for 48
hours to claim your right to bail in the court wherein you are given a hearing.
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Depending upon the facts of the case, the judge decides whether you should get
bail or not. Also, in situation you are given bail you are asked to deposit money
with the court. Generally, in certain smaller crime cases, a standard amount is
asked to be deposited for awarding the bail.

What are the usual bail conditions?

There are some conditions put under section 437 of the Cr.P.C. wherein you can
ask for bail even if you committed non-bailable offense. In non-bailable cases, bail
is not the right but the discretion of the judge if regards the case as fit for the grant
of bail, it regards imposition of certain conditions as necessary in the
circumstances. Section S. 437 (3) elaborates the conditions set by the law to get
bail in non-bailable offenses.

The sub-section says that when a person accused or suspected of the commission
of an offense punishable with imprisonment which may extend to seven years or
more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the
Indian Penal Code (45 of 1860) or abatement of, or conspiracy or attempt to
commit, any such offense, is released on bail under sub-section (1). However, for
that the Court has power to impose any condition which it considers necessary.

Some conditions that the court may place while granting bail are as follows:

In order to ensure that such person shall attend in accordance with the conditions
of the bond executed under this Chapter, or

In order to ensure that such person shall not commit an offence similar to the
offence of which he is accused or of the commission of which he is suspected, or
otherwise in the interests of Justice.

Process to Compel Appearance of Person

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There are six ways of process to compel a person to appear in court, viz. (1)
Summons; (2) Warrant; (3) Warrant in lieu of summons; (4) Proclamation of an
absconder; (5) Attachment of his property; and (6) Bond, with or without sureties,
to appear before a court on a certain date.

(1) Summons:

It is a document issued from the office of a court of justice calling upon the person
to whom it is directed to attend before a judge or officer of the court. Section 61 of
the Code requires that every summons issued by a court shall be in writing in
duplicate signed and sealed by the presiding officer of such court. It states in clear
terms the title of the court, the place at which and the day or time of the day when
the attendance of the person summoned is required. The summons shall be served
by a police officer or an officer of the court issuing it or other public servant.
[Section 62] The summons has to be served personally on the person, summoned
by delivering a duplicate copy of the summons, who signs receipt therefore on the
back of the other (duplicate). (Section 62)

Service on a corporation:

Service of a summons on an incorporated company may be affected by serving it

on the secretary, local manager or other principal officer of the corporation or by
registered post letter addressed to the chief officer of the corporation in India.
(Section 63).

Where the person summoned not found:

Where the person summoned cannot be found, the summons may be served by
leaving one of the duplicates for him with some adult member of his family
residing with him, and the person with whom the summons is so left shall sign a
receipt therefore on the back of the other duplicate. (Section 64). A servant is not a
member of the family within the meaning of Section 64.
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If service in the manner mentioned above in Sections 62, 63 and 64 cannot be

effected, 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. This is called substituted service
(Section 65).

Service on Government servant:

If a Government servant has to be summoned, the summons shall be sent by the

court in duplicate to the head of the office in which such person is employed, and
such head shall thereupon cause the summons to be served personally on the
person summoned and shall return a duplicate copy to the court under his signature
with the endorsement of receipt effected thereon. (Section 66).

Service of summons outside local limits:

Where a summons is to be served outside the local limits of jurisdiction of the

court issuing it, service has to be effected by sending it in duplicate to the
Magistrate within whose jurisdiction the person summoned resides.

Service of summons on witness by post:

Notwithstanding anything contained in the preceding sections of this chapter, a

Court issuing a summons to a witness may in addition to and simultaneously with
the issue of such summons, direct a copy of the summons to be served by
registered post addressed to the witness at the place where he ordinarily resides or
carries on business or personally works for gain.

When an acknowledgment purporting to be signed by the witness or an

endorsement purporting to be made by a postal employee that the witness refused
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to take delivery of the summons has been received, the Court issuing the summons
may declare that the summons has been duly served. (Section 69).

(2) Warrant of Arrest:

The second method of securing attendance of a person is by means of a warrant of

arrest. The warrant is an order addressed to a certain person directing him to arrest
the accused and to produce him before the court.

It is executed by a Magistrate on good and legal ground only. Section 70 of the

Code gives the essentials of a warrant of arrest. It lays down that every warrant of
arrest issued by a court shall be in writing, signed by the presiding officer of such
court, and shall bear the seal of the court.

From a reading of the above it is clear that in order to be valid a warrant must fulfil
the following requisites:

(i) It must be in writing;

(ii) It must be signed by the presiding officer;

(iii) It must bear the name and designation of the police officer or other person who
is to execute it;

(iv) It must give full particulars of the person to be arrested so as to identify him
clearly;

(v) It must specify the olfences charged; and

(vi) It must be scaled.

Continuance of the warrant of arrest:

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Every warrant shall remain in force until it is cancelled by the court which issued it
or until it is executed. A warrant of arrest does not become invalid on the expiry of
the date fixed for return of the warrant.

Warrants are of two kinds: bailable and non-bailable. Section 71 deals with
bailable warrant and lays down that a warrant may contain a direction of the court
that if the person to be arrested executes a bond with sufficient sureties for his
attendance before the court at a specified time, the serving officer shall take such
security and release him from custody.

Such a bailable warrant shall also state the number of sureties, the amount of the
bond and the time at which the arrested person is to attend the court.

A warrant of arrest shall ordinarily be directed to one or more police officers, but
the court issuing such a warrant may, if its immediate execution is necessary and
no police officer is immediately available, direct it to any other person or persons
and such person or persons shall execute the same. (Section 72).

The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant
to any person within his local jurisdiction for the arrest of any escaped convict,
offender or person accused of a non-bailable offence, or a proclaimed offender
evading arrest. (Section 73)

The police officer or any other person executing a warrant has to notify the
substance thereof to the person to be arrested, and if so required, to show him the
warrant (Section 75).

The police officer or other person executing a warrant shall (subject to the
provisions of Section 71 to security) without unnecessary delay bring the person
arrested before the court before which he is required by law to produce such
person: provided that such delay shall not in any case exceed 24 hours exclusive of
the time necessary for the journey from the place of arrest to the Magistrate‘s court
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(Section 76). A warrant of arrest may be executed at any place in India. (Section
77).

(3) Warrant in lieu of summons:

A court may issue a warrant in lieu of or in addition to a summons for the

appearance of any person in the following three cases:

(i) Where the court believes that the person summoned has absconded or will not
obey the summons;

(ii) Where although the summons is proved to have been served in time, the person
summoned without reasonable cause fails to appear; and

(iii) On breach of a bond for appearance.

A Magistrate ought not to issue a warrant either in lieu of or in addition to

summons in a summons case unless he has previously recorded the reason for his
so doing. (Sections, 87, 89).

(4) And (5) Proclamation for person absconding and attachment:

The fourth and fifth processes of compelling the appearance of a person before a
court are by a proclamation and attachment. If a court has reasons to believe 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
time not less than thirty days from the date of publishing such proclamation.

The proclamation shall be published: (i) by publicly reading in some conspicuous

place of the town or village in which such person ordinarily resides, (ii) by affixing
it to some conspicuous part of the house or homestead in which such person
ordinarily resides or to some conspicuous place of such town or village; and (iii)
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by affixing a copy thereof to some conspicuous part of the court-house. The court
may also, if it thinks fit, direct a copy of the proclamation to be published in daily
newspaper circulating in the place in which such person ordinarily resides.
(Section 82).

Before the issue of a proclamation the Magistrate should be satisfied that the
accused was absconding or concealing himself for the purpose of avoiding the
service of a warrant. The proclamation also should direct appearance of the person
concerned within thirty days, and if the date fixed for the appearance is less than
thirty days, it is illegal.

The court issuing a proclamation may for reasons to be recorded in writing at any
time order the attachment of any property, movable or immovable, or both,
belonging to the proclaimed person. There may even be a simultaneous order of
attachment along with the order of proclamation.

If the court is satisfied that the person in relation to whom the proclamation is
issued—(a) is about to dispose of the whole or any part of his property or is about
to remove the whole or any part of his property from the local jurisdiction of the
court. Since the object of attachment is to enforce the appearance of the absconder,
the attachment usually accompanies the proclamation. (Section 83).

Modes of attachment:

If the property ordered to be attached is a debt or other movable property, the

attachment may be made—(i) by seizure, or (ii) by the appointment of a receiver;
or (iii) by an order in writing prohibiting the delivery of such property to the
proclaimed person or to anyone on his behalf; or (iv) by all or any two of such
methods, as the court thinks fit.
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If the property ordered to be attached is immovable, the attachment shall, in the

case of land paying revenue to the State Government, be made through the
Collector of the district in which the land is situated.

If the immovable property is not the land paying revenue to the State Government,
the attachment shall be: (i) by taking possession; or (ii) by the appointment of a
receiver; or (iii) 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 by all or any
two of such methods, as the court thinks fit.

If the property to be attached consists of livestock or is of a perishable nature, the

court may order its immediate sale. (Section 83).

Objections to attachment by third person:

Any person other than the proclaimed person may prefer a claim or make an
objection to the attachment of property within six months from the date of
attachment on the ground that the claimant or objector has an interest in the
attached property and that such interest is not liable to attachment.

Every such claim or objection shall be inquired into by the court in which it is
preferred and may be allowed or disallowed. If the claim or objection is disallowed
in whole or in part, the claimant or objector may within a period of one year
institute a suit to establish his right in respect of the property in dispute, but subject
to the result of such suit, if any, the order of the court disallowing the claim shall
be conclusive. (Section 84).

If the proclaimed person appears within the time specified in the proclamation, the
court shall make an order releasing the property from attachment. If, however, he
does not appear within such specified time, the property under attachment shall be
at the disposal of the State Government and shall not be sold before six months
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from the date of the attachment and until the disposal of any claim or objection
made by a person other than the proclaimed offender.

But if the property is subject to speedy and natural decay or if the court considers
that the sale would be for the benefit of the owner, the court may cause it to be sold
whenever it thinks fit. (Section 85).

Restoration of attached property:

If the proclaimed person appears within two years from the date of the attachment
and satisfies the court that he did not abscond or conceal himself for the purpose of
avoiding execution of the warrant and that he had no notice of the proclamation,
the property or net proceeds of the sale after deducting the cost of the attachment
shall be delivered to him. (Section 85).

6. Bond of appearance:

The sixth method of securing attendance of a person in court is to require him to

execute a bond, with or without sureties, for his appearance in court. When a
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, he may require
such person to execute a bond, with or without sureties for his appearance in such
court. When the person so bound by any bond to appear before a court does not
appear, the presiding officer may issue a warrant directing that such person be
arrested and produced before him. (Ss. 88-89).

Process to Compel Production of Things

The law regarding processes to compel the production of documents and other
movable property is laid down in Sections 91 to 94 of the Code of Criminal
Procedure. Such processes are of two kinds, viz., a summons and a search warrant.
Whenever any court or any officer in charge of a police station considers that any
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document or other thing is necessary or desirable for the purposes of any

investigation, inquiry, trial or other proceeding under the Code, such court or
officer may issue a summons or a written order to the person in whose possession
or power it is believed to be requiring him to attend and produce it, or to produce it
at the time and place stated in the summons or order (Section 91). If the document
or thing is in the custody of a postal or telegraph authority, a District Magistrate,
Chief Judicial Magistrate, the High Court or Court of Sessions may require the
postal or telegraph authority to deliver such document, parcel or thing to such
person as such Magistrate or court directs. (Section 92)

Search warrants are issued:

(i) For production of a document or thing

(ii) For search of a house suspected to contain stolen property, forged
documents, etc.
(iii) For seizing any forfeited publications, and
(iv) For discovery of persons wrongfully confined.

Condition Requisites for Initiation of Proceeding

Magistrate may proceed against an accused on the basis of a complaint of facts; or

an information received from any person other than a police officer, or upon his
own knowledge, that such offence has been committed (section 190 CrPC). The
criminal investigation process and prosecution mechanism in India, can be started
in any of the following manner:

On complaint /reporting /knowledge of the commission of a cognizable offence,

any police officer, even without the orders of a Magistrate, can investigate the
cognizable case. [Section 156 (1) of the CrPC]

In case of failure or inaction of a police officer to investigate a cognizable offence,

a criminal complaint can be filed before a Magistrate under Section 190 of CrPC,
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for taking cognizance of such offence, and on such complaint, the Magistrate
himself can take cognizance of the case and do the enquiry, or in the alternative
under Section 156 (3) of the CrPC, order Police to register an F.I.R and investigate
the offence. In case of non-cognizable offence, Police is not obliged to investigate,
and the judicial process can be started by filing a criminal complaint before the
competent court, under Section 190 of the CrPC. It would be appropriate to
describe, in brief, as to what a ―complaint‖ is and what a ―police report‖ is.

What is a complaint?

Complaint is an allegation made to a magistrate with an intent that an action be

taken against the offender. Complaint may be made orally or in writing. It does not
include a police report. [section (2(d) CrPC]

Explanation to section 2(d) says that a report made by a police officer in a case
which discloses, after investigation, the commission of a non-cognizable offence
shall be deemed to be a complaint; and the police officer by whom such report is
made shall be deemed to be the complainant.

The explanation to section 2(d) should be read with section 155 of the Code.
According to the section 155 a police officer cannot investigate into a non-
cognizable offence without the order of the Magistrate. The information of the
non-cognizable offence is entered into the Diary Book. When any police officer
produces copy of the entry of diary regarding commission of non-cognizable
offence and obtains permission of the Magistrate to investigate into the offence and
submits report to the Magistrate that report disclosing after investigation the
commission of a non-cognizable offence is referred to by the section 2(d) of CrPC
to be deemed as complaint.

Ingredients of a complaint:-
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According to the definition of section 2(d) of CrPC, the following are essential
ingredients of a complaint:-

It needs merely to be an oral or written allegation. So it need not be in any

particular prescribed form. A telegram or a letter addressing to the Magistrate and
containing that some person has committed an offence is sufficient to constitute a
complaint. The complaint should contain a fact that some person, known or
unknown, has committed an offence. It should be made to a Magistrate. Hence a
report by the police or CBI to the Hon‘ble High Court is not a complaint. The
allegation must be made with a view to the Magistrate‘s taking action according to
the CrPC. This taking action is not an administrative action. It is not compulsory
that name of the accused should be mentioned.

In the case of Sunil v. State of W.B. [(1965) I CriLJ 630], Hon‘ble High Court of
Calcutta held that a protest petition challenging a report of enquiry or a final report
of the police is a complaint. It must, however, contain all necessary facts which
constitute an offence.

In the case of Mohd. Yousuf v. Smt. Afaq Jahan [Appeal (crl.) 2 of 2006],
Hon‘ble Supreme Court of India held that there is no particular format for a
complaint. Nomenclature is also inconsequential. It has also been held in that case
that a petition addressed to the Magistrate containing an allegation that an offence
has been committed and ending with a prayer that the culprit be suitably dealt with
is a complaint. It is not necessary to cite or quote particular section of the IPC or
any statute defining or providing the offence.

What is a police report?

When police submits a report, after investigating into a matter, that the
investigation has disclosed commission of a cognizable offence, such report is
called a police report. [Section 2(r) CrPC.
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However, when police submits a report, to the effect that investigation has
disclosed commission of a non-cognizable offence such report is treated as a
complaint and the police officer making the same is treated as a complainant
section 2(d) of CrPC.

Whenever police submits a report, after investigating into a matter, that

investigation has disclosed commission of no offence at all, such report is
generally called a final report.

Complaint And Commencement of Proceeding before Magistrate

Section 2 (d) of the Code of Criminal Procedure (in short Cr PC) defines the term
‗complaint‘ as any allegation made orally or in writing to a Magistrate, with a view
to his taking action under this Code, that some person, whether known or
unknown, has committed an offence, but does not include a police report.
Explanation: - A report made by a police officer in a case which discloses, after
investigation, the commission of a non-cognizable offence shall be deemed to be a
complaint; and the police officer by whom such report is made shall be deemed to
be the complainant.

Every day experience of the Courts shows that many complaints are ill founded,
and it is necessary therefore that they should at the very start be carefully
considered and those which are not on their face convincing should be subjected to
further scrutiny so that only in substantial cases should the Court summon the
accused person. An order summoning a person to appear in a court of law to
answer a criminal charge entails serious consequences. Therefore, Sections 200 to
203, Cr PC have been enacted for weeding out false, frivolous and vexatious
complaints aimed at harassing the accused person. However, these sections are
exclusively applicable in cases where the cognizance is taken on a complaint under
Section 190 (1)(a), Cr PC. Such special procedure is not needed in cases where
cognizance has been taken on a police report under Section 190 (1) (b) of Cr PC.
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On receipt of a complaint a Magistrate has several courses open to him. He may

take cognizance of the offence and proceed to record the statements of the
complainant and the witnesses present under Section 200, Cr PC. Thereafter if in
his opinion there is no sufficient ground for proceeding he may dismiss the
complaint under Section 203, Cr PC. If in his opinion there is sufficient ground for
proceeding he may issue process under Section 204, Cr PC. However, if he thinks
fit, he may postpone the issue of process and either inquire into the case himself or
direct an investigation to be made by a police officer or such other person as he
thinks fit for the purpose of deciding whether or not there is sufficient ground for
proceeding(Section 202, Cr PC). He may then issue process if in his opinion there
is sufficient ground for proceeding or dismiss the complaint if there is no sufficient
ground for proceeding. On the other hand, in the first instant, on receipt of a
complaint, the Magistrate may, instead of taking cognizance of the offence, order
an investigation under Section 156(3), Cr PC. The police will then investigate and
submit a report under Section 173(1), Cr PC. On receiving the police report the
Magistrate may take cognizance of the offence under Section 190 (1) (b) and
straightaway issue process. This he may do irrespective of the view expressed by
the police in their report whether an offence has been made out or not. The police
report under Section 173 will contain the facts discovered or unearth by the police
and the conclusion drawn by the police there from. The Magistrate is not bound by
the conclusion drawn by the police and he may decide to issue process even if the
police recommend that there is no sufficient ground for proceeding further. The
Magistrate after receiving the police report, may, without issuing process or
dropping the proceeding decide to take cognizance of the offence on the basis of
the complaint originally submitted to him and proceed to record the statements
upon oath of the complainant and the witnesses present under Section 200, Cr PC
and thereafter decide whether to dismiss the complaint or issue process. The mere
fact that he has earlier ordered an investigation under Section 156(3), Cr PC and
received a report under Section 173, Cr PC will not have the effect of total
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effacement of the complaint and therefore the Magistrate will not be barred from
proceeding under Sections 200, 203 and 204 of the Cr PC. Thus, a Magistrate who
on receipt of a complaint, orders an investigation under Section 156(3) and
receives a police report under Section 173(1), may, thereafter, do one of three
things:

(i) He may decide that there is no sufficient ground for proceeding further and drop
action;

(ii) He may take cognizance of the offence under Section 190 (1) (b) on the basis
of the police report and issue process; this he may do without being bound in any
manner by the conclusion arrived at by the police in their report;

(iii) He may take cognizance of the offence under Section 190 (1) (a) on the basis
of the original complaint and proceed to examine upon oath the complainant and
his witnesses under Section 200. If he adopts the third alternative, he may hold or
direct an inquiry under Section 202, Cr PC if he thinks fit. Thereafter he may
dismiss the complaint or issue process, as the case may be.
Case Law

Francis Savio vs. Kerala 1998 Cr LJ 4735

In drafting a criminal complaint, there is no specific provision either in the

Criminal Procedure Code or in the rules framed there under as to how a criminal
complaint has to be drafted. What we should see in the criminal complaint is
whether the entire substance of the complaint prima facie, makes out an offence
said to have been committed, or whether there is a ground to presume on the entire
reading of the substance of the complaint that the offence is likely to have been
committed.

M/s. Nova Electricals, Jalgaon vs. State of Maharashtra and Anr. 2007 Cr LJ
535
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The Bombay High Court has observed that the verification of the complainant as
required under Section 200 of the Cr PC is not a mere formality and the Magistrate
has to ascertain thereby whether the complaint is genuine or frivolous. It is further
held that for omission by the Court to record verification, the complainant cannot
be penalized for it and on that ground the complaint cannot be quashed. Omission
by Court to record verification and/or examining the complainant on oath, at the
most can be said to be an irregularity and the same can be cured subsequently.

Manharibhai Muljibhai Kakadia vs. Shaileshbhai Mohanbhai Pale (2012) 10

SCC 517

The Apex Court has observed: - where complaint has been dismissed by the
Magistrate under Section 203 of the Cr PC, upon challenge to the legality of the
said order being laid by the complainant in a revision petition before the High
Court or the Session Judge, the person who are arraigned as accused in the
complaint have a right to be heard in such revision petition. If the Revisional Court
overturns the order of the Magistrate dismissing the complaint and the complaint is
restored to the file of the Magistrate and it is sent back for fresh consideration, the
person who are alleged in the complaint to have committed crime, have, however,
no right to participate in the proceedings nor they are entitled to any hearing of any
sort what so ever by the Magistrate until the consideration of the matter by the
Magistrate for issuance of process.

Santokh Singh vs. Geetanjali Wollen Pvt. Ltd. 1993 Cr LJ 3744 (P&H)

An order of dismissal under Section 203 of Cr PC is no bar to the entertainment of

a second complaint on the same facts but it will be entertained only in exceptional
circumstances.

Mahesh Chand vs. Janardhan Reddy, AIR 2003 SC 702

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The Supreme Court has observed that the second complaint on the same facts
could be entertained only in exceptional circumstances, namely, where the
previous order was passed on an incomplete record or on a misunderstanding of the
nature of complaint or it was manifestly absurd, unjust or where new facts which
could not, with reasonable diligence, have been brought on record in the previous
proceedings, have been adduced.

Abdul Hamid Khan vs. State 1989 Cr LJ 468

The Gujarat High Court has held that merely because the Magistrate has not
examined all the witnesses named in complaint as prosecution witness at the time
of holding enquiry under Section 202 of Cr PC in a case exclusively triable by
Session Court, the order of issuing process against accused cannot be said to be
void or illegal.

If process is issued on a complaint under Section 204 of Cr PC even if wrongly and

no offence is made out the Court which passed the order, cannot entertain any
application for recalling its own order. Neither provisions of Section 203 nor
245(2) of Cr PC provides. Appropriate remedy would be revision or quashing
under Section 482 Cr PC. Whether the Special Judge/Magistrate is justified in
referring a private complaint made under Section 200, Cr PC for investigation in
exercise of powers conferred under Section 156(3) Cr PC without the production
of a valid sanction order under Section 19 of the Prevention of Corruption Act,
1988.

The Supreme Court of India in Anil Kumar vs. M K Aiyappa on 1 Oct 2013 has
observed that:- A Special Judge referring the case for investigation under Section
156(3) Cr PC is at pre-cognizance stage and if the law requires sanction, and the
Court proceeds against a public servant without sanction, the public servant has a
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right to raise the issue of jurisdiction as the entire action may be rendered void ab-
initio.

UNIT-III: Trial Proceedings

Framing of Charges and Joinder of Charges

One basic requirement of a fair trial in criminal jurisprudence is to give precise

information to the accused as to the accusation against him. This is vitally
important to the accused in the preparation of his defence. In all trials under the
Criminal Procedure Code the accused is informed of the accusation in the
beginning itself. In case of serious offences the Code requires that the accusations
are to be formulated and reduced to writing with great precision & clarity. This
"charge" is then to be read and explained to the accused person.

Charge serves the purpose of notice or intimation to the accused, drawn up

according to specific language of law, giving clear and unambiguous or precise
notice of the nature of accusation that the accused is called upon to meet in the
course of trial VC Shukla v. State through CBI 1980 Cri LJ 690, 732.

Relevant Legal Provisions of Criminal Procedure Code (CrPC)

Section 211 & Section 212 specifies about Contents of Charge and mentioning of
particulars as to time and place of the alleged offence in the charge.

This rule is to an extent relaxed in a case of criminal breach of trust or of dishonest

misappropriation. When the accused is charged with criminal breach of trust or
dishonest misappropriation of money or other movable property, it shall be
sufficient to specify the gross sum or, as the case may be, describe the movable
property in respect of which the offence is alleged to have been committed, and the
dates between which the offence is alleged to have been committed, without
specifying particular items or exact dates. It is obvious that the relaxation given by
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the above rule is applicable only in case of criminal breach of trust or dishonest
misappropriation and not in case of any other offence like theft, falsification of
accounts under Section 477-A of the IPC, cheating etc.

This rule is intended to cover cases of persons who showed a deficiency in the
accounts with which they were entrusted but who could not be shown to have
misappropriated this or that specific sum Shiam Sunder v. Emperor, AIR 1932
Oudh 145,147.

Section 213 talks about; when manner of committing offence must be stated:

When the nature of the case is such that the particulars mentioned in sections 211
and 212 do not give the accused sufficient notice of the matter with which he is
charged, the charge shall also contain such particulars of the manner is which the
alleged offence was committed as will be sufficient for that purpose.

Section 214 gives a rule for interpreting the words used in the charge: It provides
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.

Basic Procedure regarding charge & its trial

The initial requirement of a fair trial in criminal cases is a precise statement of the
accusation. The code seeks to secure this requirement, first, by laying down in
Sections 211 to 214 of CrPC as to what a charge should contain; next, stipulating
in Section 218 of CrPC that for every distinct offence there should be a separate
charge; and lastly, by laying down in the same section that each charge should be
tried separately, so that what is sought to be achieved by the first two rules is not
nullified by a joinder of numerous & unconnected charges Sanatan Mondal v.
State, 1988 Cri LJ 238 (Cal).
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Section 218 reads as Separate charges for distinct offences

The object of section 218 is to save the accused from being embarrassed in his
defence if distinct offences are lumped together in one charge or in separate
charges & are tried together Aftab Ahmad Khan v. State of Hyderabad, AIR
1954 SC 436. Another reason is that the mind of the court might be prejudiced
against the prisoner if he were tried in one trial upon different charges resting on
different evidence. It might be difficult for the court trying him on one of the
charges not to be influenced by the evidence against him on the other charges. The
strict observance of Section 218(1) may lead to multiplicity of trials, therefore
exceptions, in suitable cases, have been provided by Section 218(2) in Sections
219,220,221 & 223. The effects of non-compliance with provisions regarding
charge would be considered later. It would however be useful to allude to the
decision of the Supreme Court in context of non-compliance with Section 218. In
every case, in which a departure from the requirements of Section 218 has
occurred, the question before the courts is, whether the omission to frame the
required charge has or has not in fact occasioned a failure of justice by prejudicing
the accused in his defence, & whether he has thus been deprived of a fair trial
Willie Slaney v. State of MP, AIR 1956 SC 116.

Power of Court to order separate trial in cases where joinder of charges or of

offenders is permissible

The basic rule regarding charge is that for every distinct offence there shall be a
separate charge & for every such charge there shall be separate trial. The only
exceptions recognized are contained in Sections 219,220,221 & 223 of CrPC.
Therefore separate trial is the rule and the joint trial is an exception. The sections
containing the exceptions are only enabling provisions. A court has got the
discretion to order a separate trial even though the case is covered by one of the
exceptions enabling a joint trial Chunnoo v. State, AIR 1954 ALL 795 . A joint
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trial of a very large number of charges is very much to be deprecated even though
it is not prohibited by law. A separate trial is always desirable whenever there is
risk of prejudice to the accused in a joint trial. The Supreme Court has taken the
view that it is the option of the court whether to resort to Section 219,220 & 223 of
the Code or whether to act as laid down in Section 218 and that the accused has no
right to claim joinder of charges or of offenders Ranchhod Lal v. State of MP,
AIR 1965 SC 1248

Applicability of provisions relating to joinder of charges to cases where no

charge is framed

As will be seen later, in all summons cases though it is necessary to state to the
accused the particulars of the offence of which he is charged, it is not necessary to
frame a formal charge. In such cases a question may arise whether the provisions
relating to joinder of charges & of offenders are applicable to such proceedings.
The Code does not make any express provision in this regard. However the courts
have taken the view that these provisions are equally applicable in summons cases
also Harihar Chakravorthy v. State of W.B., AIR 1954 SC 266.

Amendment/Alteration of charge

According to Section 216 (1) of CrPC, any court may alter or add to any charge at
any time before judgment is pronounced. The section invests a comprehensive
power to remedy the defects in the framing or non-framing of a charge, whether
discovered at the initial stage of the trial or at any subsequent stage prior to the
judgment.

The code gives ample power to the courts to alter or amend a charge whether by
the trial court or by the Appellate Court provided that the accused has not to face a
charge for a new offence or is not prejudiced either by keeping him in the dark
about that charge or in not giving a full opportunity of meeting it & putting
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forward any defence open to him, on the charge finally preferred against
him Kantilal Chandulal Mehta v. State of Maharashtra, (1969) 3 SCC 166.The
court has a very wide power to alter the charge; however, the court is to act
judiciously and to exercise the discretion wisely. It should not alter the charge to
the prejudice of the accused person Harihar Chakravorthy v. State of W.B.,
AIR 1954 SC 266

Withdrawal of remaining charges on conviction on one of several charges

Section 224 of CrPC states that when a charge containing more heads than one is
framed against the same person, and when a conviction has been had on one or
more of them, the complainant, or the officer conducting the prosecution, may,
with the consent, of the Court, withdraw the remaining charge or charges, or the
Court of its own accord may stay the inquiry into, or trial of, such charge or
charges and such withdrawal shall have the effect of an acquittal on such charge or
charges, unless the conviction be set aside, in which case the said Court (subject to
the order of the Court setting aside the conviction) may proceed with the inquiry
into, or trial of, the charge or charges so withdrawn. The section is applicable
where the accused in convicted of one of several distinct charges before the other
charges are tried. It is necessary that the several charges made must be in respect of
distinct offences and the section will not apply where the several charges are made
under Sections 220(3), 220(4), or Section 221.

Effects of omission to frame, or absence of, or error in charge

Under Section 215 & 464 of CrPC object is to prevent failure of justice where
there has been only technical breach of rules not going to the root of the case as
such. The two sections read together lay down that whatever the irregularity in
framing of a charge, it is not fatal unless there is prejudiced caused to the accused
Kailash Gir v. V.K. Khare, Food Inspector, 1981 Cri LJ 1555, 1556 (MP) . The
object of the section is to prevent failure of justice where there is some breach of
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the rules in the formulation of the charge. However, the section also makes it clear
that insignificant irregularities in stating the particulars of the offence will not
affect the trial or its outcome. In order to decide whether the error or omission has
resulted in a failure of justice the court should have the regards to the manner in
which the accused conducted his defence & to the nature of the objection.

The object of the charge is to give an accused notice of the matter he is charged
with. If the necessary information is conveyed to him and no prejudice is caused to
him because of the charges, the accused cannot succeed by merely showing that
the charges framed were defective. Nor could a conviction recorded on charged
under wrong provisions be reversed if the accused was informed of the details of
the offences committed and thus no prejudice was caused to him SS Rout v. State
of Orissa, 1991 Cri LJ 1595 . The mere omission to frame a charge or a mere
defect in the charge is no ground for setting aside a conviction. Procedural laws are
designed to subserve the ends of justice & not to frustrate them by mere
technicalities.

Jurisdiction of the Criminal Courts in Inquiries and Trials

Introduction

To ensure that justice is served to the one whose right has been infringed, the
Constitution of India gave the judiciary system. To ensure that the judiciary is
working in an efficient manner, various courts having different powers were
established. Code of Criminal Procedure, 1973 (hereinafter referred as CrPC)
under Section 6, directs that beside High Courts in every state the following
criminal courts will be established:

Courts of Session

Metropolitan Magistrate in any Metropolitan area

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Judicial Magistrate of the first class in areas other than Metropolitan area

Executive Magistrate

Court of Session

Establishment

As per Section 7 of CrPC, every state will have session division and the number of
such division will be decided by State Government after consulting the High
Court. Section 9 of CrPC, states that the State Government will have to establish a
Court of Session for every session‘s division which shall be presided by a
Judge and he will be appointed by the High Court. Further, the High Court can also
appoint Additional Session Judge and Assistant Session Judge.

Triable offence

As per Section 26, a Court of Session can try any offence given under IPC or any
other offence which has shown to be triable by the Court of Session in the First
Schedule.

Subordination

The Assistant or Additional Session Judge appointed by the High Court will
be subordinate to their respective Sessions Judge who will distribute the work
among them. Session Judge can make rules with respect to the additional and
assistant judges but they must be consistent with the Code. [Section 9]

Punishment

A Sessions Judge and Additional Sessions Judge can pass any sentence that
is authorised by law but, in case of death sentence confirmation of High Court is
required. An Assistant Sessions Judge can pass any sentence excluding sentence of
death or imprisonment for life or for a term exceeding ten years. [Section 28]
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Court of Metropolitan Magistrate

Establishment

Areas having population more than one million and notified by the State
Government are Metropolitan areas. The area of Mumbai, Kolkata, Chennai and
Ahmedabad are the areas that are mentioned in the Code as Metropolitan Areas.
[Section 8]

As per Section 16, the State Government after consulting the High
Court will establish as many courts of Metropolitan Magistrates as it may deem fit
in the Metropolitan Area. The High Court will appoint the presiding officer and
the jurisdiction of the officer will extend throughout the metropolitan area.

Under Section 17, High Court will appoint a Metropolitan Magistrate as Chief
Metropolitan Magistrate (CMM) for a particular area. High Court can also appoint
any Metropolitan Magistrate as Additional Chief Metropolitan Magistrate.

Subordination

The CMM and every Additional CMM will be subordinate to the Sessions Judge.
Every other Metropolitan Magistrate will be subordinate to CMM and the extent of
the subordination will be defined by the High Court. Further, the CMM can make
rules consistent with the Code and can also distribute the work among the
Metropolitan Magistrate. [Section 19]

Triable Cases

As per Section 26, Court of Metropolitan Magistrate can try offence which
has shown to be triable by the Court of Metropolitan Magistrate in the First
Schedule.

Punishment
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CMM may pass any sentence authorised by the law except a sentence of death or
of imprisonment for life or a term exceeding seven years whereas a Metropolitan
Magistrate can pass a sentence for a term not exceeding three years or fine not
exceeding five thousand rupees or both. [Section 29]

Court of Judicial Magistrate

Establishment

As per Section 7, each division is divided into districts and the State Government
in every district after consultation with the High Court will establish as many
Courts of Judicial Magistrates of First Class and Second Class as it may deem fit.
The presiding officer of such Courts shall be appointed by the High Court. [Section
11]

In every district a Judicial Magistrate of First Class (JMFC) will be appointed as a

Chief Judicial Magistrate (CJM) under Section 12 of CrPC. The High Court can
also appoint any JMFC to be an Additional CJM.

A CJM, subject to the control of High Court, can define the local limit of the areas
within which the Magistrates appointed under Section 11 or Section 13 can
exercise their powers. [Section 14]

Subordination

As per Section 15, a CJM will be subordinate to the Sessions Judge and the other
Judicial Magistrate will be subordinate to CJM, subject to general control of
Sessions Judge. Also, the CJM can make rules consistent with this Code and can
distribute the work among the Judicial Magistrate subordinate to him.

Triable Cases
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As per Section 26, Court of Judicial Magistrate can try offence which has shown to
be triable by the Court of Judicial Magistrate in the First Schedule.

Punishment
CJM may pass any sentence authorised by law except a sentence of death or
of imprisonment for life or a term exceeding seven years whereas a JMFC can pass
a sentence for a term not exceeding three years or fine not exceeding five thousand
rupees or both. Judicial Magistrate of Second Class can pass a sentence of
imprisonment wherein the term will not be exceeding one year and in terms of fine,
the amount will not exceed one thousand rupees, or of both. [Section 29]

Court of Executive Magistrate

Establishment

Under Section 20, the State Government in every district and in every metropolitan
area will appoint as many Executive Magistrates as it thinks fit and shall appoint
one of them as District Magistrate (DM). The State Government can also appoint
any Executive Magistrate as an Additional District Magistrate (ADM) who will
have same power as that of a DM.

The DM subject to the control of State Government will define the local limits in
which the Executive Magistrate can exercise their power.

Subordination

Every Executive Magistrate other than ADM will be subordinate to the

DM and every Executive Magistrate exercising power in a Sub-division shall also
be subordinate to the Sub-Divisional Magistrate, subject to the general control of
DM. [Section 23]

Triable Cases
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As per Section 3(4)(b), the matters which are administrative or executive in nature
will be exercisable by an Executive Magistrate.

Order

The order that can be passed by an Executive Magistrate will be either

administrative or executive in nature and hence it will depend on the facts and
circumstances of the case.

Types of trials: Sessions Trial, Warrant Trial, Summons Trial, Summary

Trial

Indian Penal Code and Code of Criminal Procedure are together known as ―twin
sisters‖ of criminal law.

Code of Criminal Procedure (Cr. P. C.) is the procedural law for conducting a
criminal trial in India. The procedure includes the manner for collection of
evidence, examination of witnesses, interrogation of accused, arrests, safeguards
and procedure to be adopted by Police and Courts, bail, the process of criminal
trial, a method of conviction, and the rights of the accused of a fair trial by
principles of natural justice.

Indian Penal Code (IPC) is the primary penal law of India, which applies to all
offences. Indian Evidence Act (IEA) is a comprehensive, treaty on the law of
―evidence‖, which can be used in the trial, the manner of production of the
evidence in a trial, and the evidentiary value which can be attached to such
evidence.
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Types of trials

According to the Code of Criminal Procedure, a Criminal Trial is of different

types. Depending upon the type of criminal trial the different stages of a criminal
trial are discussed below.

Warrant Case

According to Section 2(x) of Code of Criminal Procedure, 1973 a warrant case is

one which relates to offenses punishable with death, imprisonment for life or
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imprisonment for a term exceeding two years. The trial in warrant cases starts
either by the filing of FIR in a police station or by filing a complaint before a
magistrate. Later, if the magistrate is satisfied that the offense is punishable for
more than two years, he sends the case to the sessions court for trial. The process
of sending it to sessions court is called ―committing it to sessions court‖.

Important features of a warrant case are:

 Charges must be mentioned in a warrant case

 Personal appearance of accused is mandatory
 A warrant case cannot be converted into a summons case
 The accused can examine and cross-examine the witnesses more than
once.
 The magistrate should ensure that the provisions of Section 207 are .
 Section 207 of Cr. P.C. 1973, include the supply of copies such as police
report, FIR, statements recorded or any other relevant document to the
accused.

The stages of trial in warrant cases are given from Section 238 to Section 250 of
the Code of Criminal Procedure, 1973.

Different Stages of Criminal Trial in a Warrant Case when instituted by the police
report

 First Information Report: Under Section 154 of the Code of Criminal

Procedure, a FIR or First Information Report is registered. FIR puts the
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case into motion. A FIR is information given by someone (aggrieved) to

the police relating to the commitment of an offense.
 Investigation: The next step after the filing of FIR is the investigation by
the investigating officer. A conclusion is made by the investigating
officer by examining facts and circumstances, collecting evidence,
examining various persons and taking their statements in writing and all
the other steps necessary for completing the investigation and then that
conclusion is filed to the magistrate as a police report.
 Charges: If after considering the police report and other important
documents the accused is not discharged then the court frames charges
under which he is to be trialled. In a warrant case, the charges should be
framed in writing.
 Plea of guilty: Section 241 of the Code of Criminal Procedure, 1973
talks about the plea of guilty, after framing of the charges the accused is
given an opportunity to plead guilty, and the responsibility lies with the
judge to ensure that the plea of guilt was voluntarily made. The judge
may upon its discretion convict the accused.
 Prosecution evidence: After the charges are framed, and the accused
pleads guilty, then the court requires the prosecution to produce evidence
to prove the guilt of the accused. The prosecution is required to support
their evidence with statements from its witnesses. This process is called
―examination in chief‖. The magistrate has the power to issue summons
to any person as a witness or orders him to produce any document.
 Statement of the accused: Section 313 of the Criminal Procedure Code
gives an opportunity to the accused to be heard and explain the facts and
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circumstances of the case. The statements of accused are not recorded

under oath and can be used against him in the trial.
 Defence evidence: An opportunity is given to the accused in a case
where he is not being acquitted to produce so as to defend his case. The
defense can produce both oral and documentary evidence. In India, since
the burden of proof is on the prosecution the defense, in general, is not
required to give any defense evidence.
 Judgement: The final decision of the court with reasons given in support
of the acquittal or conviction of the accused is known as judgement. In
case the accused is acquitted, the prosecution is given time to appeal
against the order of the court. When the person is convicted, then both
sides are invited to give arguments on the punishment which is to be
awarded. This is usually done when the person is convicted of an offense
whose punishment is life imprisonment or capital punishment.

Stages of Criminal Trial in a Warrant Case when Private Complaint institutes case

 On the filing of the complaint, the court will examine the complainant
and its witnesses on the same day or any other day to decide whether any
offense is made against the accused person or not.
 After examination of the complainant, the Magistrate may order an
inquiry into the matter and submit a report for the same.
 After examination of the complaint and the investigation report, the court
may come to a conclusion whether the complaint is genuine or whether
the prosecution has sufficient evidence against the accused or not. If the
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court does not find any sufficient material through which he can convict
the accused, then the court will dismiss the complaint and record its
reason for dismissal.
 After examination of the complaint and the inquiry report, if the court
thinks that the prosecution has a genuine case and there are sufficient
material and evidence with the prosecution to charge the accused then the
Magistrate may issue a warrant or a summon depending on the facts and
circumstances.

Summon Cases

According to Section 2(w) of Code of Criminal Procedure, 1973, Those cases in

which an offense is punishable with an imprisonment of fewer than two years is a
summon case. A summon case doesn‘t require the method of preparing the
evidence. Nevertheless, a summon case can be converted into a warrant case by the
magistrate if after looking into the case he thinks that the case is not a summon
case.

Important points about summons case

 A summons case can be converted into a warrant case.

 The person accused need not be present personally.
 The person accused should be informed about the charges orally. No need
for framing the charges in writing.
 The accused gets only one opportunity to cross-examine the witnesses.
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The different stages of criminal trial in a summon case are given from Section 251
to Section 259 of the Code of Criminal procedure.

Stages of Criminal Trial in a Summons Case

 Pre-trial: In the pre-trial stage, the process such as filing of FIR and
investigation is conducted.
 Charges: In summons trials, charges are not framed in writing. The
accused appears before the court or is brought before the court then the
Magistrate would orally state the facts of the offense he is answerable.
 Plea of guilty: The Magistrate after stating the facts of the offense will
ask the accused if he pleads guilty or has any defense to support his case.
If the accused pleads guilty, the Magistrate records the statement in the
words of the accused as far as possible and may convict him on his
discretion.
 Plea of guilty and absence of the accused: In cases, where the accused
wants to plead guilty without appearing in the court, the accused is
supposed to send Rs.1000/- by post or through a messenger (lawyer) to
the Magistrate. The absentee should also send a letter containing an
acceptance of guilt and the amount of fine provided in the summons. The
Magistrate can on his discretion convict the accused.
 Prosecution and defense evidence: In summons case, the procedure
followed is very simple and elaborate procedures are eliminated. If the
accused does not plead guilty, then the process of trial starts. The
prosecution and the defense are asked to present evidence in support of
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their cases. The Magistrate is also empowered to take the statement of the
accused.
 Judgement: When the sentence is pronounced in a summons case, the
parties need not argue on the amount of punishment given. The sentence
is the sole discretion of the judge. If the accused is acquitted, the
prosecution has the right to appeal. This right to appeal is also extended
to the accused.

Summary Trial

Cases which generally take only one or two hearings to decide the matter comes
under this category. The summary trials are reserved for small offenses to reduce
the burden on courts and to save time and money. Those cases in which an offense
is punishable with an imprisonment of not more than six months can be tried in a
summary way. The point worth noting is that, if the case is being tried in a
summary way, a person cannot be awarded a punishment of imprisonment for
more than three months.

The trial procedure is provided from Section 260 to Section 265 of the Code of
Criminal Procedure.

Stages of Criminal Trial in Summary Cases

 The procedure followed in the summary trial is similar to summons-case.

 Imprisonment up to three months can be passed.
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 In the judgement of a summary trial, the judge should record the

substance of the evidence and a brief statement of the finding of the court
with reasons.

Judgement and Sentences under the Code

Judgment

Section 353 of the Criminal Procedure Code

1. The judgment in every trial in any Criminal Court of original jurisdiction

shall be pronounced in open Court by the presiding officer immediately after
the termination of the trial or at some subsequent time of which notice shall
be given to the parties or their pleaders,
1. by delivering the whole of the judgment; or
2. by reading out the whole of the judgment: or
3. by reading out the operative part of the judgment and explaining the
substance of the judgment in a language which is understood by the
accused or his pleader.
2. Where the judgment is delivered under clause a) of Sub-Section (1), the
presiding officer shall cause it to be taken down in short-hand, sign the
transcript and every page thereof as soon as it is made ready, and write on it
the date of the delivery of the judgment in open Court.
3. Where the judgment or the operative part thereof is read out under clause b)
or clause c) of Sub-Section (1), as the case may be, it shall be dated and
signed by the presiding officer in open Court and if it is not written with his
own hand, every page of the judgment shall be signed by him.
4. Where the judgment is pronounced in the manner specified in clause c) of
Sub-Section (1), the whole judgment or a copy thereof shall be immediately
made available for the perusal of the parties or their pleaders free of cost.
5. If the accused is in custody, he shall be brought up to hear the judgment
pronounced.
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6. If the accused is not in custody, he shall be required by the Court to attend to

hear the judgment pronounced, except where his personal attendance during
the trial has been dispensed with and the sentence is one of fine only or he is
acquitted:

Provided that, where there are more accused than one, and one or more of
them do not attend the Court on the date on which the judgment is to be
pronounced, the presiding officer may, in order to avoid undue delay in the
disposal of the case, pronounce the judgment notwithstanding their absence.

7. No judgment delivered by any Criminal Court shall be deemed to be invalid

by reason only of the absence of any party or his pleader on the day or from
the place notified for the delivery thereof, or of any omission to serve, or
defect in serving, on the parties or their pleaders, or any of them, the notice
of such day and place.
8. Nothing in this section shall be construed to limit in any way the extent of
the provisions of section 465.

Sentence

Section 389 in The Code Of Criminal Procedure, 1973

389. Suspension of sentence pending the appeal; release of appellant on bail.

(1) Pending any appeal by a convicted person, the Appellate Court may, for
reasons to be recorded by it in writing, order that the execution of the sentence or
order appealed against be suspended and, also, if he is in confinement, that he be
released on bail, or on his own bond.

(2) The power conferred by this section on an Appellate Court may be exercised
also by the High Court in the case of an appeal by a convicted person to a Court
subordinate thereto.
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(3) Where the convicted person satisfies the Court by which he is convicted that he
intends to present an appeal, the Court shall,-

(i) where such person, being on bail, is sentenced to imprisonment for a term not
exceeding three years, or

(ii) where the offence of which such person has been convicted is a bailable one,
and he is on bail, order that the convicted person be released on bail, unless there
are special reasons for refusing bail, for such period as will afford sufficient time to
present the appeal and obtain the orders of the Appellate Court under sub- section
(1); and the sentence of imprisonment shall, so long as he is so released on bail, be
deemed to be suspended.

(4) When the appellant is ultimately sentenced to imprisonment for a term or to

imprisonment for life, the time during which he is so released shall be excluded in
computing the term for which he is so sentenced.

Sentence in cases of conviction of several offences at one trial

1. When a person is convicted at one trial of two or more offences, the Court may,
subject to the provisions of section 71 of the Indian Penal Code (45 of 1860),
sentence him for such offences, to the several punishments, prescribed therefore
which such Court is competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration of the other in such
order as the Court may direct, unless the Court directs that such punishments
shall run concurrently.
2. In the case of consecutive sentences, it shall not be necessary for the Court by
reason only of the aggregate punishment for the several offences being in
excess of the punishment which it is competent to inflict on conviction of a
single offence, to send the offender for trial before a higher Court:

Provided that -
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1. in no case shall such person be sentenced to imprisonment for a longer

period than fourteen years;
2. the aggregate punishment shall not exceed twice the amount of
punishment which the Court is competent to inflict for a single
offence.
3. For the purpose of appeal by a convicted person, the aggregate of the
consecutive sentences passed against him under this section shall be deemed to
be a single sentence.

Submission of Death Sentences for Confirmation

Section 366 of the Code provides that when a Sessions Court passes a death-
sentence, the proceedings must be submitted to the High Court, and the sentence
cannot be executed, unless it is confirmed by the High Court. In the meanwhile, the
Sessions Court must commit the convicted person to jail custody under a warrant.

It is now a well-established practice of High Courts to be satisfied both on the law

as well the facts of the case before confirming a death sentence. In other words, the
High Court must come to its own independent conclusion as to the guilt or
innocence of the accused, independently of the opinion of the Judge who has
inflicted the death penalty on him. (Balak Ram, — A.I.R. 1974 S.C. 2165)

When a death-sentence is submitted to it for confirmation, if the High Court is of

the opinion that some further inquiry should be made or additional evidence taken,
it may do so itself, or direct it to be done by Sessions Court. Unless the High Court
otherwise directs, the presence of the convicted person may be dispensed with
when such inquiry is made or such evidence is taken. (S. 367)

Whenever such a case is submitted to the High Court, it may,—

(a) Confirm the sentence, or pass any other sentence warranted by law; or
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(b) Annul the conviction, and convict the accused of any offence of which the
Sessions Court might have convicted him or order a new trial on the same or an
amended charge; or

(c) Acquit the accused.

However, no order of confirmation of the death sentence can be passed until the
period allowed for preferring an appeal has expired, or if an appeal has been filed
within such period, until such appeal is disposed of.

Where both the confirmation case and the appeal arise from the same order of
conviction, the practice of the High Court‘s is to hear both together, and deal with
the merits of the case on the basis that all material questions of fact and law can be
agitated by the accused. The Bombay High Court has endorsed that this practice is
fully justified by the provisions of the Criminal Procedure Code. In every case thus
submitted to the High Court, the confirmation or any other order passed by the
High Court must be made, passed and signed by at least two Judges, when such a
Court consists of two or more Judges. (S. 369)

Moreover, if such a case is heard by a Bench of Judges, and such are equally
divided in their opinion, the case, along with the Judge‘s opinions, is to be laid
before another Judge of the High Court. That Judge, after such hearing as he thinks
fit, must deliver his opinion, and the judgement of the Court is to be based on that
opinion. (S 370)

After the order of confirmation (or any other order) has been made by the High
Court, the proper Officer of the High Court must, without any delay, send a copy
of such order, under the seal of the High Court, and attested with his official
signature, to the Sessions Court.

General Provisions as to Inquiries and Trial

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Procedure in Sessions Trial

Legal Provisions of Section 177 of Code of Criminal Procedure, 1973 (Cr.P.C.),

India. Ordinary place of inquiry and trial:This section is meant for the facility of
both, the prosecution and the defence who can conveniently attend trial if it is held
in the Court of their locality. The provision of this section regarding the place of
inquiry and trial is applicable to trials whether held under the Code or under any
local or special laws. The words ―ordinarily‖ used in the section clearly suggests
that the provisions are not exclusive and there are certain other special provisions
in the Code itself which provide for alternative venues for inquiry and trial for
certain offences.

The place of inquiry or trial of an offence is generally dependent as to where and

how the offence was committed as gathered from the contents of the complaint or
the police report, i.e., the charge-sheet. In absence of any positive proof to the
contrary, the Court will be presumed to have jurisdiction on the basis of facts made
out by averments.

Generally, a Magistrate within whose local jurisdiction the offence is committed is

authorised to take cognizance and try the case or commit it to the Court of Session.
The subsequent transfer of locality to another district does not oust the jurisdiction
of the Magistrate.

Where the offence consists of different acts done in different places such as
conspiracy, it may be inquired into or tried by a Court having jurisdiction over any
such place.

In defamation cases the Trial Court has the jurisdiction to go into the merits of
issue pertaining to territorial jurisdiction.
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In case of a defamatory article appearing in a newspaper which is printed and

published at one place but circulated at different places, the Magistrate of any of
such places have the jurisdiction to entertain the complaint for defamation.

When the question of jurisdiction is raised, it must be decided first, before the trial
of the case is commenced.

Important Cr.P.C Sections In Trial Court

The Code of Criminal Procedure 1973 (Cr.P.C) is a procedural law which provides
a mechanism in which way the criminal trial to be conducted. It gives the
administration of criminal law. The primary object of the criminal justice system is
to ensure that the trial is to be fair. The accused can prove their innocents through
this trial and the guilty person should not be escaped from the punishment. The
trial began after framing the charge and end with the judge‘s declaration. The trial
classified into two schedules the offenses classified under I.P.C. and the offenses
classified other than I.P.C. The nature of the trial depends on the seriousness of the
offense.

Sessions Trial Procedure

1. Police case225 to 237 Cr.P.C

Chapter XVIII of Cr.P.C starting with sec.225 and ending with sec.237 deals with
the manners on which the trial to occur before a court Session. A prosecution
should be conducted by a public prosecutor before a court session. When accused
come before the court the public prosecutor should open the case by describing the
charge brought against the accused and the evidence that proves his guilt. After
considering the evidence from the prosecutor and the accused the session court
make a decision. If the documents produced by the prosecutor have no grounds
for proceeding against the accused, session court shall discharge the accused. If the
judge found the documents proves the accused guilty, then he makes decision
about the charge and he will write it. At this stage, the judge will only consider the
prosecution‘s document and he will not consider any documents from the accused.
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1. Complaint case: S.190 to 210 of Cr.P.C.

Chapter XIV of Cr.P.C deals with the provisions to handle the complaint cases.
Section 190 to 204 deals with the evidence of cases and section 190(1) says that
the Magistrate can take evidence of offense upon a complaint, upon a police report
or upon his own knowledge or report from another person.

Chapter XV of Cr.P.C says about the procedure to follow by the Magistrate when a
complaint is made to him. The Magistrate can enquire the evidence by himself or
with the help of the police. After the investigation, the court will examine the
documents and if it found wrong then the accused will be dismissed and if it found
true then the Magistrate will issue the summons.

The other Important Cr.P.C sections in trial court are

317 Crpc – Petition filied for absence of accused

207 Crpc – For copies

311 Crpc – To recall witness at any stage after trial

91 Crpc – To produce documents

205 Crpc – Apperence dispence of accused

239 Crpc – Discharge of accused

257 Crpc – withdrawal of complaint

301 Crpc – To assisting the prosecution

302 Crpc – Private prosecution

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156(3) Crpc – Direction to register a case

173(5)(8) Crpc – Additional documents to be filed after filing a charge sheet

167(2) Crpc Bail in mandatory provision in Sessions case -90days Below 3 years
punishment cases – 60
days

437 Crpc Lower court bail

438 Crpc sessions bail / Anticipatory bail

439 Crpc High court bail

Execution, Suspension, Remission and Commutation of Sentences

Power to appoint place of imprisonment (section 417)

The State Government may appoint a place where any person liable to
imprisonment shall kept or confined or committed to custody. If any person liable
to imprisoned or committed to custody in a civil jail. The Court of Magistrate, who
passed the judgment of imprisonment shall direct that the person shifted to a
criminal jail. Under the Code of Criminal Procedure, 1973.
When a person shifted to a criminal jail under Sub-Section (2) of section 417. Then
he shall released there from, and also sent back to the civil jail, unless either :
1. Three years have elapsed since he shifted to the criminal jail. In which
case he shall deemed to have released from the civil jail under section
58 of the Code of Civil Procedure, 1908 (5 of 1908) or section 23 of
the Provincial Insolvency Act, 1920 (5 of 1920), as the case may be; or
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2. The Court which ordered his imprisonment in the civil jail has certified
to the officer in charge of the criminal jail. Such certification that
person entitled to released under section 58 of the Code of Civil
Procedure, 1908 or under section 23 of the Provincial Insolvency Act,
1920, as the case may be.

Power to suspend or remit sentences (section 432)

The appropriate Government may, with or without conditions, suspend the
execution of sentence or remit whole or part of the punishment. This power can
exercised for any person who has sentenced to punishment for an offence.
Whenever an application made to the appropriate Government for the suspension
or remission of a sentence. The appropriate Government may require the presiding
Judge of the court who passed the judgment. The Appropriate government may
require the presiding judge to state his opinion regarding the application together
with reason. Presiding judge also required to forward the certified copy of record
of trial.
The appropriate government has suspended or remitted the sentence on certain
conditions. If such condition, in the opinion of the appropriate Government, not
fulfilled. The appropriate Government may cancel the suspension or remission.
Thereupon, also may direct any police officer to arrest the person in whose favour
such suspension of or remittance of sentence passed. Also direct to undergo the
unexpired portion of the sentence. The condition on which a sentence suspended or
remitted under this section may fulfilled by the person in whose favour the
sentence suspended or remitted, or one independent of his will. The appropriate
Government may make general rules and also special orders for giving directions
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for suspension of sentences. Also the conditions on which the petitions should
presented.
Provided that in the case of any sentence (other than a sentence of fine) passed on a
male person above the age of eighteen years. No such application for petition by
the person sentenced or by any other person on his behalf shall considered. Unless
the person sentenced is in jail and :
1. Where such petition made by the person sentenced and also presented
through the officer in charge of the jail; or
2. Where such petition made by any other person and also contains a
declaration that the person sentenced is in jail.
These provisions shall also apply to any order passed by a Criminal Court under
any section of this Code or of any other law which restricts the liberty of any
person or imposes any liability upon him or his properly.

Power to commute sentence (section 433)

The appropriate Government may, without the consent of the person sentenced
commute a sentence of :
1. Death, for any other punishment provided by the Indian Penal Code;
2. Imprisonment for life, for imprisonment for a term not exceeding
fourteen years or for fine;
3. Rigorous imprisonment for simple imprisonment for any term to which
that person might have been sentenced, or for fine;
4. Simple imprisonment, for fine.

Appropriate Government
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1. In cases where the sentence is for an offence against, or the order

passed under, any law relating to a matter to which the executive power
of the Union extends, the Central Government
2. In other cases the Government of the State within which the offender is
sentenced or the said order is passed.

Legal provisions regarding power to suspension or remission by the appropriate

Government under section 432 of the Code of Criminal Procedure, 1973.

Section 432 of the Code of Criminal Procedure provides the following provisions
relating the power to suspension or remission by an appropriate Government:

(1) When any person has been sentenced to punishment for an offence, the
appropriate Government may, at any time, without conditions or upon any
conditions which the person sentenced accepts, suspend the execution of his
sentence or remit the whole or any part of the punishment to which he has been
sentenced.

(2) Whenever an application is made to the appropriate Government for the

suspension or remission of a sentence, the appropriate Government may require the
presiding judge of the Court before or by which the conviction was had or
confirmed, to state his opinion as to whether the application should be granted or
refused, together with his reasons for such opinion and also to forward with the
statement of such opinion a certified copy of the record of the trial or of such
record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in the
opinion of the appropriate Government, not fulfilled, the appropriate Government
may cancel the suspension or remission, and thereupon the person in whose favour
the sentence has been suspended or remitted, may, if at large, be arrested by any
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police officer, without warrant and remanded to undergo the unexpired portion of
the sentence.

(4) The condition on which a sentence is suspended or remitted under Section 432
may be one to be fulfilled by the person in whose favour the sentence is suspended
or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders, give
directions as to the suspension of sentences and the conditions on which persons
should be presented and dealt with.

However, in the case of any sentence (other than a sentence of fine) passed on a
male person above the age of eighteen years, no such petition by the person
sentenced or by any other person on his behalf shall be entertained, unless the
person sentenced is in jail, and;

(a) Where such petition is made by that person sentenced, it is presented through
the officer in charge of the jail; or

(b) Where such petition is made by any other person, it contains a declaration that
the person sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed
by a criminal Court under any Section of this Code or of any other law, which
restricts the liberty of any person or imposed any liability upon him or his property.

(7) In Sections 432 and 433, the expression ‗appropriate Government‘ means;

(a) In cases where the sentence is for an offence against, or the order referred to in
sub-section (6) is passed under any law relating to a matter to which the executive
power of the Union extends, the Central Government;
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(b) In other cases, the Government of the State within which the offender is
sentenced or the said order is passed.

The powers conferred on the President of India and the Governors of States by
Articles 72 and 161 of the Constitution of India to suspend, remit or commute any
sentence is ordinarily called ‗mercy jurisdiction‘. The judiciary has no such ‗mercy
jurisdiction‘.

‗Pardon‘ and ‗remission‘ stand on different footings. The difference between a

pardon and a remission of sentence lies in the fact that in the case of pardon it
affects both the punishment prescribed for the offence and the guilt of the offender,
in other words, a fall pardon may blot out the guilt itself; in the case of remission,
the guilt of the offender is not affected nor is the sentence of the Court affected,
except in the sense that the person concerned does not suffer incarceration for the
entire period of the sentence, but is believed from serving out a part of it.

The power to grant pardon is in essence an executive function to be exercised by

the Head of the State after taking into consideration various matters which may not
be germane for consideration before a Court of law inquiring into the offence.

The Government of India and State Governments must dispose of the petitions
under Sections 432 and 433 of the Code as expeditiously as possible and a self
imposed rule should be followed by the authorities rigorously that every such
application shall be disposed of within the period of three months from the date on
which it is received.

The law governing suspension, remission and commutation of sentence is both

statutory and constitutional. The stage for the exercise of this power generally
speaking is post-judicial. The grant of remission is a matter of policy and it is for
the executive branch of Government to decide as to when, to what extent and in
what manner remission is to be granted.
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The Courts cannot give any direction in the matter of policy which is purely within
the executive domain of the Government. It is not the duty of the Government to
give reasons in its order of remission. The remission of sentence depends on the
concept of mercy and it is not a prisoner‘s right.

The sentence will not automatically be revived when there is a breach of any
condition of suspension or remission. It is only when the Government chooses to
pass an order of cancellation of the suspension or remission that the convict is
arrested and is required to serve the unexpired portion of the sentence.

Section 389 of Cr. P.C. empowers the Court to suspend the sentence and even the
conviction but if there is no such suspension, the Competent Authority or the
Government‘s powers under Section 432, Cr. P.C. are not curtailed in any manner
nor there is an embargo on its powers merely because the appeal against the
conviction is pending. But when the sentence is suspended and the convict is
ordered to be released on bail, such an order prevails over the powers of the
Government under Section 432, Cr. P.C.

Unit -4

Appeals, reference and revision

Introduction

The term ―appeal‖ has not been defined in the code. According to the dictionary
meaning, an appeal is a complaint or grievance to a superior court for
reconsideration or review of a decision, verdict or sentence of a lower court. It has
been said that every human being is fallible and a judge is not an exception. It is
thus possible that even a judge may err or commit mistake and his decision may be
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wrong or faulty. Article 25 of the Constitution Of India guarantees life and liberty
to every citizen, small or big, rich or poor, as one of the Fundamental Rights.

Chapter XXXIX (Section 372 – 394 of Cr.PC ) deals with Appeals.

A right of Appeal is not a natural or inherent right. It is a statutory right and must
be governed by the statute which grants it.

SECTION 372 provides, no appeal lies except otherwise provided by the Code or
by any other law for the time being in force. Under Articles 132, 134 and 136 of
the Constitution of India, it may be possible to present an appeal to the Supreme
Court against the order of acquittal passed by the High Court.

SECTION 373 – APPLIES TO APPEALS FROM

Orders requiring security for keeping peace or good behavior and Against order
refusing to accept or rejecting to accept or rejecting a surety under s. 121. The
appeal lies to Court of Session, except, of course, in cases where under sub-s. (2)
Or (4) of S. 122, the proceedings are already laid before the Session Judge.

SECTION 374: APPEALS FROM CONVICTIONS

Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court. Any person convicted on a
trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by
any other Court in which a sentence of imprisonment for more than seven
years [has been passed against him or against any other person convicted at the
same trial]; may appeal to the High Court Save as otherwise provided in sub-
section (2), any person, convicted on a trial held by a Metropolitan Magistrate or
Assistant Sessions Judge or Magistrate of the first class, or of the second class,
sentenced under section 325, or in respect of whom an order has been made or a
sentence has been passed under section 360 by any Magistrate, may appeal to the
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Court of Session. While disposing of appeals from the sentences of the Sessions
Court under this Section, the High Court should specify the reasons for rejection of
appeal and should not reject it summarily. This will enable the Supreme Court to
know the view of the High Court, in case the appellant moves the Supreme Court
in appeal. For computing the sentence of imprisonment for seven years for the
purpose of ascertaining the appellate forum under Section 374 (2), the sentence in
default of payment of a fine is not to be added to the substantive sentence of
imprisonment.

An appeal from an order of acquittal must be filed within the period of limitation
prescribed by Article 114 of the Schedule of the Limitation Act, 1963. For the
extension of the period of limitation, and for exclusion of time in computing the
period of limitation, Sections 5 and 12 of the Limitation Act, 1963 would be
useful.

NO RIGHT OF APPEAL

Section 375 and 376 bar appeals in certain cases, though a provision of
Revision is maintainable. Thus no appeal shall lie-

Where a High Court passes a sentence of imprisonment not exceeding six months
or fine not exceeding one thousand rupees or both; Where a Court of Session or a
Metropolitan Magistrate passes a sentence of imprisonment not exceeding three
months or fine not exceeding two hundred rupees or both; Where a Magistrate of
the First Class passes a sentence of fine not exceeding one hundred rupees; or
Where in a summary case, a Magistrate passes a sentence of fine not exceeding
two hundred rupees.

APPEAL FOR ENHANCEMENT OF SENTENCE

Section 377 confers right on the Government to file an appeal against the
inadequacy of sentence awarded by any court other than a High court. If the
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sentence appears to be manifestly inadequate resulting in failure of justice, the

appellate court can interfere with it and can enhance the sentence. But at the same
time, the high court can also exercise its revisional jurisdiction, suo motto call for
the record and enhance the sentence in appropriate cases after giving an
opportunity to the accused.[4]The appellate court must pass a speaking order for
enhancing the sentence. A bold statement that the ends of justice demanded
enhancement of sentence was held insufficient by courts.

An appeal under Section 377 must be filed by the State within a period of 60 days
and the contention of the State that it was under a mistaken belief that period of
limitation is ninety days would be no excuse for condonation of the delay.

APPEAL IN CASE OF ACQUITTAL

Under Articles 132, 134 and 136 of the Constitution of India, it may be possible to
present an appeal to the Supreme Court against the order of acquittal passed by the
High Court. An appeal from an order of acquittal must be filed within the period of
limitation prescribed by Article 114 of the Schedule of the Limitation Act, 1963.
For the extension of the period of limitation, and for exclusion of time in
computing the period of limitation, Sections 5 and 12 of the Limitation Act, 1963
would be useful. Appeal against an order of acquittal is an extraordinary remedy.
In exercising this power the High Court should give proper weight and
consideration to ―Very substantial and compelling reasons‖ exist when:

The trial court‘s conclusion with regard to the facts is palpably wrong. The trial
court‘s decision was based on an incorrect view of law; The trial court‘s judgment
is likely to result in ―grave miscarriage of justice‖; The entire approach of the trial
court in dealing with the evidence was patently illegal; The trial court‘s judgment
was manifestly unjust and unreasonable; The trial court has ignored the evidence
or misread the material evidence or has ignored material documents like dying
declarations/ report of the Ballistic expert, etc. This list is intended to be
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illustrative, not exhaustive. The Appellate Court must always give proper weight
and consideration to the findings of the trial court. If two reasonable views can be
reached – one that leads to acquittal, the other to conviction – the High
Court‘s/appellate courts must rule in favour of the accused.

POWERS OF APPELLATE COURT IN APPEAL AGAINST ACQUITTAL

In Chandrappa & Others v. State of Karnataka [6], Supreme Court held:

An appellate court has full power to review, re-appreciate and reconsiders the
evidence upon which the order of acquittal is founded.

The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition

on the exercise of such power and an appellate court on the evidence before it may
reach its own conclusion, both on questions of fact and of law.

Various expressions, such as, ―substantial and compelling reasons‖, ―good and
sufficient grounds‖, ―very strong circumstances‖, ―distorted conclusions‖, ―glaring
mistakes‖, etc. are not intended to curtail extensive powers of an appellate court in
an appeal against acquittal. Such phraseology are more in the nature of ―flourishes
of language‖ to emphasize reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to review the evidence and to come
to its own conclusion.

An appellate court, however, must bear in mind that in case of acquittal, there is
double presumption in favour of the accused. Firstly, the presumption of innocence
is available to him under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and strengthened by
the trial court.
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If two reasonable conclusions are possible on the basis of the evidence on record,
the appellate court should not disturb the finding of acquittal recorded by the trial
court.‖

SECTION 379 – APPEAL AGAINST CONVICTION BY HIGH COURT IN

CERTAIN CASES

Where the High Court has, on appeal, reversed an order of acquittal of an accused
person and convicted him and sentenced him to death or to imprisonment for life
or to imprisonment for a term of ten years or more, he may appeal to the Supreme
Court.

An appeal to would lie to the Supreme Court as a matter of right when High Court,
on appeal, Reversed an order of Acquittal of an accused person and

Convicted and sentenced him to death or to imprisonment for life or to

imprisonment for a term of ten years or more.

In other cases appeal can be filed, if the High Court certifies that the case is a fit
one for appeal to the Supreme Court. Only grave injustice manifest on record can
induce the Supreme Court to interfere with the concurrent finding of guilt of
Courts below. The Court would be slow in reversing the finding entered by the
High Court unless there is a perverse and erroneous appreciation of evidence. If the
High Court, for acquitting the accused has given certain tenable reasons, the
Supreme Court would not be justified in interfering with such acquittal. The word
―acquittal‖ doesn‘t mean that the trial must have ended in a complete acquittal but
would also include the case where an accused has been acquitted of the charge of
murder and has been convicted of a lesser offense.

SECTION 380- SPECIAL RIGHT OF APPEAL IN CERTAIN CASES

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Notwithstanding anything contained in this Chapter, when more persons than one
are convicted in one trial, and an appealable judgment or order has been passed in
respect of any of such person, all or any of the persons convicted at such trial shall
have a right of appeal.

Form of Appeal

SECTION 382 – Petition of Appeal.

Every appeal shall be made in the form of a petition in writing presented by the
appellant or his pleader, and every such petition shall (unless the Court to which it
is presented otherwise directs) be accompanied by a copy of the judgment or order
appealed against. A copy of the judgment or order means a certified copy. The
court has, however, discretion to dispense with the copy of the judgment.

SECTION 383 – APPEAL FROM JAIL

Where a convict is in jail and intends to challenge his conviction, he can file an
appeal from jail by presenting it to the officer in charge of the jail. It is the duty of
the jail officer to forward such appeal to an appropriate court. No Jail Appeal can
be dismissed without affording the reasonable opportunity to the appellate court of
being heard.

SECTION 384 – Summary Dismissal of Appeal or Dismissal in Limine

If upon examining the petition of appeal and copy of the judgment received under
section 382 or section 383, the Appellate Court considers that there is no sufficient
ground for interfering, it may dismiss the appeal summarily.

DISMISSAL IN LIMINE (U/S 384)

The Appellate court‘s power to dismiss an appeal must be exercised sparingly and
with great circumspection. The Apex court has dealt with cases where the
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summary dismissal of criminal appeal is permissible. Even if the records of the

case is destroyed or is not available, it would justify acquittal. Bolin v. Jagdish
(2005) AIR 2005 SC 1872; State v. Abhai Roy (2004)4 SCC 6

SECTION 385 – Procedure for hearing of the appeal which has been admitted and
not dismissed summarily under Section 384

The section lays down the procedure for hearing of the appeal which has been
admitted and not dismissed summarily under Section 384.

An order of the High Court setting aside the acquittal of the accused in appeal
without notice having been sent to the accused was held to be illegal. The accused
must be heard and his appearance must be ensured while disposing of the appeal.

Where the appeal is not dismissed summarily under Section 384, the Appellate
Court is bound to call for the record if such record has not already been sent by the
Court and then give a hearing to the parties However, the Court may dispose of the
appeal even without asking for the record where the appeal is only as to the legality
of the sentence.

Revision and reference

The reason for granting a power of revision to victims of crime is so that a superior
criminal court may wield a sort of supervisory jurisdiction which makes certain
that justice is given out correctly and fairly, without any neglect or irregularities of
procedures of law, and causing unnecessary burdens upon the victims involved. A
limitation on the power of revision would be that it is discretionary in nature and
must only be exercised by a higher court in exceptional cases where there has been
an evident mistake of law. In the case Pranab Kumar v. State of W. B. the
Supreme Court held that revisional powers do not create any right in the litigant,
but only conserve the power of the High Court to see that justice is done in
accordance with the recognized rules of criminal jurisprudence, and that
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subordinate criminal courts do not exceed their jurisdiction, or abuse their powers
vested in them by the Code .Revision is broader in sense than appeal .

It must be noted that both Revision and Appeals under the Criminal Procedure
Code are review procedures. This means that the verdicts of lower courts are
scrutinised and corrected by the Superior courts in criminal matters. The lower
criminal court which has passed the order can review its order under Section 362
of the Code only to correct clerical or arithmetical orders.

In contrast though, in the Civil Procedure Code, the courts which pass the order or
decree has, to a large extent wider power to review its own order as expressed in
Section 114 of the Civil Procedure Code. This is distinctly different from the
Criminal Procedure Code where under Section 362 it says, ―Save as otherwise
provided by this Code or by any other law for the time being in force, no court,
when it has signed its judgement or final order disposing of a case, shall alter or
review the same except to correct a clerical or arithmetical error."

Another distinct point about revision which must be made is that the power of
revision is exercised by a superior court to a court which decides a case, but the
power of review is exercised by the same court which passed the decree or order.
Power of revision is exercised only when there is no appeal to the High Court. This
happens to be one of the main points of difference between revision and appeal.

Reference

Section 113 and Order 46 deal with reference.

The object of making a reference is to enable the subordinate courts to obtain the
opinion of the High Court in advance on a question of law in non-appealable cases,
and thereby to avoid the commission of an error which cannot be remedied later
on. The case is referred to the High Court by the subordinate Court to that High
Court. The party is not entitled to make a reference. The grounds of reference
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relate to reasonable doubt on a ‗question of law‘ .It is of consultative nature from

subordinate Court to High Court.

Revision

Section 115 deals with revision.

The object of revision is to prevent the subordinate courts from acting arbitrarily,
capriciously and illegally or irregularly in the exercise of their jurisdiction. In
revision, the jurisdiction of the High Court is invoked either by the aggrieved party
or by the High Court suo motu. The grounds for revision relate to ‗jurisdictional
errors‘ of the subordinate court. It is of commanding nature from High Court to its
subordinate courts.

Inherent powers of court

Under section 482 of the Code of Criminal Procedure, the inherent power of High
Court is peculiar in criminal jurisprudence. It is the most powerful weapon for the
High Court to clear the province of criminal law jurisdiction of all vitiating and
malicious influences. The issue naturally lifted in the context are about the extent,
scope, and limitation of the power.

These powers are not available to the subordinate courts for the obvious reason that
there will be pandemonium in the criminal justice system‘. These powers are
available only to the High Court for reasons philosophical, historical and practical.

According to Sec 26 of CrPC, 1973, Offences under the Criminal Procedure Code
are divided into:

1. Offenses under Indian Penal Code (IPC).

2. Offenses under any other law.

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Section-482 of CrPC deals with Inherent powers of the Court.Section- 482 of CrPC
of provides:

“Saving of inherent power of High Court- Nothing in this Code shall be deemed to
limit or affect the inherent powers of the High Court to make such orders as may
be necessary to give effect to any order under this Code, or to prevent abuse of the
process of any Court or otherwise to secure the ends of justice.‖

This section was added by the Code of Criminal Procedure (Amendment) Act of
1923 as the high courts were unable to render complete justice even if in a given
case the illegality was palpable and apparent. The section envisages 3
circumstances in which the inherent jurisdiction may be exercised, namely:

To give effect to an order under CrPC.

To prevent abuse of the process of the court.

To secure the ends of justice.

The grounds on which the High Court can impede extended lapse of time.

Non-achiever to supply to accused, copies of police statements and other relevant

documents- grounds for other relevant documents- grounds for HC to quash
proceedings against accused. The law that deals with the inherent powers of the
Civil Court, falls under Section-148 to Section-153A of the Civil Procedure Code
(CPC), which envisages the exercise of powers in different circumstances. The
provisions that deal with these inherent powers are:-

Section-150: This provision is related to the transfer of business.

Section-151: It conserves the inherent powers of the courts

Section 152, 153 and Sec 153A: These provisions of the CPC deal with
amendments in decrees, judgments orders or in other proceedings.
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Transfer of criminal cases

Parties or witnesses can submit application for transfer of criminal case under
Cr.PC if they feel insecure, threat or inconvenience. The principal which is laid
down in section 177 is very much clear. That every offense shall ordinarily be
inquired into and tired by a court within the local limits of whose jurisdiction it
was committed. But this is not a hard and fast rule. Because parties can also file an
application for the transfer of criminal case from court to another court, district to
another district or province to another province.

Court has the absolute authority to transfer criminal case from one district to
another. Mere allegation is not a ground for the transfer of case, some concrete
proof has to be given in court.

Transfer of Criminal Case

There are three modes of transfer of case under Cr.PC. Only three provision
relating to transfer of case can be found in criminal law. These modes are as under:

Transfer of Criminal Case Through High Court

Transfer of Criminal Case By Provincial Government

Transfer By Session Court

1. Transfer Through High Court

Section 526 of criminal procedure code explains the procedure

Grounds For transfer Of Criminal Case

There are five grounds of transfer which a party can take, if the parties suspects
that a fair justice will not be served. That a fair or impartial inquiry or trial cannot
be had in any subordinate criminal court. That a place where offense took place is
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far away from the place of court and court wants to view the occurrence. That a
difficult question of law has arisen which cannot be decided by the lower
court.Convenience of the party or witness that it is expedient for justice if any one
of these grounds exists in any case than the high court can order that;

i. Any particular case or class of case or appeal be transferred from one subordinate
court to another

ii. Any particular case be tried by itself

iii. Any accused person can be sent to another session court or to itself for trail

2.Transfer Of Case To The High Court

When any case is withdraw from any of its subordinate court and is tried by itself
than the high court must adopt the same rules and procedure which the lower court
has adopted.

Modes For Application Of Transfer

There are three modes to file an transfer petition in criminal cases;

Application by lower court

Application by any interested party

Suo motu order

1. Application By Lower Court

When any matter arises to determinate any difficult question of law. Than lower
court always consult with the high court and for this purpose they make report.
High court while considering the importance of this report can transfer criminal
cases from one court to another or to itself.
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2. Application By Any Interested Party

Application for transfer can be filed by any party mentioning the grounds in it
which are explained above. If the party show mistrust towards the presiding officer
of the court or there is danger to his life or fair trail cannot be held than he can
submit this application and upon this high court can transfer the case.

3. Suo Motu Order

High court has the discretion to transfer case suo motu even without having any
application to transfer. Transfer Application by Advocate General when the
applicant is an advocate general who wants to transfer the criminal case, than his
application must be supported by affidavit or confirmation. Except advocate
general this requirement is not mandatory for other applicants.

4.Application By Accused person

When the application is filed by the accused person than high court may order the
accuse to furnish bonds with or without sureties in the court. If his application is
rejected than the amount of bonds will be awarded to the opposing party.

Notice To The Public Prosecutor By The Accused Person

In every application of transfer filed by the accused, a prior notice shall be given in
writing to the public prosecutor along with the copy of grounds on which transfer
of case is sought. The court can make no order unless the 24 hours are elapsed of
giving notice to the public prosecutor.

Payment of Compensation Upon Rejection Of Application

When an application is filed under section 526 and while rejecting this application
the high court thinks that this application was filled to waste the time of court or it
was frivolous and vexatious. Than High Court can impose fine on applicant which
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will be paid to the opposing party. The maximum amount of fine cannot exceed
five hundred rupees.

No Adjournment or Judgement Is pronounced

During the trail if any party intimates to the presiding officer of the court that he
want to file an application to transfer the case. No adjournment will be granted to
the intended applicant. And also no judgment will be pronounced unless this
application has been decided by the high court.

Plea bargaining

Plea bargaining is essentially derived from the principal of 'Nalo Contendere'

which literary means 'I do not wish to contend'. The Apex Court has interpreted
this doctrine as an "implied confession, a quasi confession of guilt, a formal
declaration that the accused will not contend, a query directed to the court to
decide a plea guilt, a promise between the Government and the accused and a
government agreement on the part of the accused that the charge of the accused
must be considered as true for the purpose of a particular case only. It has been
introduced in the criminal procedure code in the chapter XXI A wide criminal law
(amendment) Act 2005.This has change the prospect & the face of the criminal
justice system. It is not applicable in cases where the offence is committed against
a women or a child below the age of 14 years. Also once the court passes an order
in the case of plea bargaining, no appeal shall lie to any court against the order.

"Plead Guilty or bargain for lesser sentence" is the straight & shortest possible
meaning of plea bargaining. Plea bargaining refers to pre - trail negotiation
between the defendant usually conducted by the counsel & the prosecution during
which the defendant agrees to plead guilty in the exchange for certain concessions
by the prosecutor. Plea bargaining is the result of modern judicial thinking before
the introduction of plea bargaining most courts used to ignore Plea Bargaining. The
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concept of Plea Bargaining was not recognized in jurisprudence of India. However

accused used to plead guilty only for petty offences & pay small fine whereupon
the case is closed. Initially the concept of Plea Bargaining was opposed by the
legal experts, judiciary etc.

RELEVANT PROVISION & PROCEDURE FOR PLEA BARGAINING

As Per Section 265-A, the plea bargaining shall be available to the accused who is
charged of any offence other than offences punishable with death or imprisonment
or for life or of an imprisonment for a term exceeding to seven years. Section 265
A (2) of the Code gives power to notify the offences to the Central Government.
The Central Government issued Notification No. SO1042 (II) dated 11-7/2006
specifying the offences affecting the socioeconomic condition of the country.

Section 265-B contemplates an application for plea bargaining to be filed by the

accused which shall contain a brief details about the case relating to which such
application is filed, including the offences to which the case relates and shall be
accompanies by an affidavit sworn by the accused stating therein that he has
voluntarily preferred the application, the plea bargaining the nature and extent of
the punishment provided under the law for the offence, the plea bargaining in his
case that he has not previously been convicted by a court in a case in which he had
been charged with the same offence. The court will thereafter issue notice to the
public prosecutor concerned, investigating officer of the case, the victim of the
case and the accused for the date fixed for the plea bargaining. When the parties
appear, the court shall examine the accused in-camera wherein the other parties in
the case shall not be present, with the motive to satisfy itself that the accused has
filed the application voluntarily.

Section 265-C prescribes the procedure to be followed by the court in working out
a mutually satisfactory disposition. In a case instituted on a police report, the court
shall issue notice to the public prosecutor concerned, investigating officer of the
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case, and the victim of the case and the accused to participate in the meeting to
work out a satisfactory disposition of the case. In a complaint case, the Court shall
issue notice to the accused and the victim of the case.

Section 265-D deals with the preparation of the report by the court as to the arrival
of a mutually satisfactory disposition or failure of the same. If in a meeting under
section 265-C, a satisfactory disposition of the case has been worked out, the Court
shall prepare a report of such disposition which shall be signed by the presiding
office of the Courts and all other persons who participated in the meeting.
However, if no such disposition has been worked out, the Court shall record such
observation and proceed further in accordance with the provisions of this Code
from the stage the application under sub-section (1) of section 265-B has been filed
in such case.

Section 265-E prescribes the procedure to be followed in disposing of the cases

when a satisfactory disposition of the case is worked out. After completion of
proceedings under S. 265 D, by preparing a report signed by the presiding officer
of the Court and parities in the meeting, the Court has to hear the parties on the
quantum of the punishment or accused entitlement of release on probation of good
conduct or after admonition. Court can either release the accused on probation
under the provisions of S. 360 of the Code or under the Probation of Offenders
Act, 1958 or under any other legal provisions in force, or punish the accused,
passing the sentence. While punishing the accused, the Court, as its discretion, can
pass sentence of minimum punishment, if the law provides such minimum
punishment for the offences committed by the accused or if such minimum
punishment is not provided, can pass a sentence of one fourth of the punishment
provided for such offence. " Section 265-F deals with the pronouncement of
judgment in terms of mutually satisfactory disposition.

Section 265-G says that no appeal shall be against such judgment.

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Section 265-H deals with the powers of the court in plea bargaining. A court for
the purposes of discharging its functions under Chapter XXI-A, shall have all the
powers vested in respect of trial of offences and other matters relating to the
disposal of a case in such Court under the Criminal Procedure Code.

Section 265-I specifies that Section 428 is applicable to the sentence awarded on
plea bargaining.

Section 265-J talks about the provisions of the chapter which shall have effect
notwithstanding anything inconsistent therewith contained in any other provisions
of the Code and nothing in such other provisions shall be construed to contain the
meaning of any provision of chapter XXI-A.

Section 265-K specifies that the statements or facts stated by the accused in an
application for plea bargaining shall not be used for any other purpose except for
the purpose as mentioned in the chapter. " Section 265-L makes chapter not
applicable in case of any juvenile or child as defined in Section 2(k) of Juvenile
Justice (Care and Protection of Children) Act, 2000.

For a valid disposal on plea bargaining it is important to follow the aforesaid

procedure contemplated in Chapter XXI-A. Even though 'plea bargaining' is
available after the introduction of the said amendment is available, in cases of
offences which are not punishable either with death or with imprisonment for life
or with imprisonment for a term exceeding seven years, the chapter contemplates a
mutually satisfactory disposal of the case which may also include the giving of
compensation to victim and other expenses and same cannot be done without
including the victim in the process of arriving at such settlement.

The Hon'ble High Court in the case of Sh. Charan Singh v. M.C.D. has held that
no disqualification on account of conviction could be attached to petitioner as he
had been released on probation. In this case, the Hon'ble Delhi High Court has
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quoted the case of Trikha Ram v. V. K. Seth and Anr wherein the Hon'ble
Supreme Court held that the benefit of Section 12 of The Probation of Offenders
ACT, 1958 can be extended to the service of the offender.
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