CRPC

UNIT-3

Framing of Charges and Joinder of Charges

DEFINITION OF “CHARGE”
Section 2 (b) of the Code of Criminal Procedure (Cr.P.C) gives the statutory
meaning of a charge and states that it “includes any head of charge when the charge
contains more heads than one”. This is a very inclusive definition and it does not
clearly explains the meaning of charge. So to understand the meaning, we need to
decode the statement and interpret it with an example. Suppose, a man enters into
the house of another person, steals his belongings, murders him and runs away. Then
several offences are committed by him under a single act. Therefore, all the
offences are said to be the “heads of charge”. Individually yet together, all of
these offences are tagged as “charge”.

The framing of charge is a very important step before executing a criminal trial.
Without a proper structure, the trial might not reach to a conclusion. The Courts
must be very cautious while building the framework of the charges as it will lead
to different paths and portray various conclusions. A criminal trial begins with
examining the accused by explaining him the accusation made against him in his
vernacular language.

According to Section 239 Cr.P.C in case of warrant cases, the charges framed
against the accused and substance of the accusation shall be read over to him.

Under Section 251 Cr.P.C, the accused has the right to know the subject of the
accusation stated against him. The section reads out that “when in a summons- case
the accused appears or is brought before the Magistrate, the particulars of the
offence of which he is accused shall be stated to him and he shall be asked whether
he pleads guilty or has any defence to make.” But then no formal charge is required
to be framed.

Section 226 Cr.P.C gives power to the prosecutor to open the case of the accused by
describing the charges brought against him and stating the evidences which he
proposes to prove the guilt of the accused.

Chapter XVII of the Code of Criminal Procedure, 1973 deals with “The Charges”.
There are two parts under this Chapter.
• Part A deals with the form of charges (Section 211 to Section 217) and
• Part B deals with Joinder of Charges (Section 218 to Section 224).

• FORM OF CHARGE (Section 211 to Section 217)

Charge is defined as a precise formulation of the specific accusation made against

an accused who has the right to know its nature at the very earliest stage. Charges
are framed by the Court itself. But before framing these charges, the Court carries
out proceedings against the accused which is called Trial. In fact, a charge itself
separates the process of inquiry from trial.

Section 211 to Section 214 of the Cr.P.C explains that “charge” is a written
allegation made by a court. Section 211 briefly points out the pattern of the
contents of charge (in accordance to The Second Schedule, FORM NO. 32 of Cr.P.C)
like name of the offence, the section of the offence committed, date and place of
previous convictions committed by the accused.

In the case of Mohd. Akbar Dar v. State of Jammu Kashmir, the Court held that
meticulous consideration of evidence and other materials is not necessary to frame
a charge.
Section 212 mandates to mention the time and place of alleged offence as well as
the name of the person or thing against whom the it was committed, in the
particulars of the charge. Sub section (2) states to mention the gross sum in case
of breach of trust or criminal misappropriation of money.

In Kadiri Kunhahammad v. State of Madras, the Court said that a charge for criminal
breach of trust framed in contravention of proviso mentioned in sub section (2) of
this section is merely an irregularity then it can be cured under both Section 215
& 464 of the Code and will not vitiate the trial when the accused is not
prejudiced. The above mentioned two sections frame the General Contents of a
Charge.

Section 211(7) and Section 213 frames out the special contents of a charge. Section
213 orders to mention the manner in which the offence has been committed by the
accused in the charge sheet. This provision comes into purview only when the
particulars mentioned in Section 211 and 212 do not give sufficient notice of the
matter.

Section 214 says that in every charge words used in describing an offence shall be
deemed to have been used in the sense attached to them respectively by law under
which such offence is punishable. The judgement given in the case of Mohan Singh v.
State of Bihar clearly explained the provisions related to this section under point
17.

IS A DEFECTIVE CHARGE NECESSARILY FATAL TO CONVICTION? Section 215 deals with the
effects of errors in the charge or a defective charge. It explains that if there
are any errors or omission in the charge then it will not be considered material
unless the accused was in fact misled or there has been a failure of justice. This
section was upheld in the case of Om Prakash v. State of UP.

Also Section 464 in Cr.P.C states the effect of omission to frame, or absence, or
error in, charge. ALTERATION OR ADDITITON OF CHARGE Section 216 speaks about the
power of the Court in case of alteration of a charge. It gives the power to alter
or add to any charge at any time before judgement is pronounced. But there are
certain provisions related to the alteration of charge. The alteration of the
charge must be brought to notice of the accused and explained to him as is
mentioned in the case of Sabbi Mallesu v. State of A.P. [(2006) 10 SCC
543].Kantilal Chandulal Mehta v. State of Maharashtra [(1969) 3 SCC 166: (1970) SCC
(Cri) 19] rules that the Code gives ample power to the Courts to alter or amend a
charge. Section 217 provides for recalling the witnesses when the charge is altered
or added.

JOINDER OF CHARGES
This topic comes under Part B of Chapter XVII of the Criminal Procedure Code, 1973.
Section 218 to Section 224 deals with “Joinder of Charges”. This part is inserted
in this Code to prevent any kind of prejudice that might develop in the
Magistrate’s mind regarding the character of the accused person due to his
offences. Section 218 explains thst every distinct offence shall be a separate
charge and every charge shall be tried separately. In Kamalanantha v. State of
Tamil Nadu, it was upheld that if a trial is proceeded without framing separate
charges for each distinct offence then it is an irregularity and this can be cured
under Section 464 and 465 of Cr.P.C provided that there was no failure of justice.
This section also highlights a proviso for the accused that he can submit a writing
to the Magistrate to try together all or any number of charges framed against him
if it would cause no prejudice as such. Application can be given under this
provision only when the all the distinct offences of that person is tried under the
same Magistrate. This was mentioned in the case of State of Punjab v. Rajesh Syal.
EXCEPTIONS OF SECTION 218 Section 219 states if a person is accused of committing
three offences of same kind within a year then all of the offences may be charged
with and tried at one trial.

Section 220 elaborates that offences which are committed in the course of same
transaction may be charged with and tried at one trial. It lists out several
provisions related to this.

Section 221 provides that if a single act or a series of act is of such a nature
that it is doubtful which of several offences the facts should be proved, then the
accused may be charged with having committed all or any of such offences. Any
number of such charge may be tried at once or he may be charged in the
alternatively.

Section 222 says that if the accused is charged with an offence that consist
several particulars, some of which if combined and proved to be a minor offence
then the accused shall be convicted for that minor offence even if it was not
mentioned.

Section 223 specifically handles the class of persons who can be tried jointly.
This section permits a joint trial of several persons under specified
circumstances.

Section 224 states that when a charge containing mire heads than one is framed
against the same person then the officer conducting the prosecution may with the
remove the remaining charges with the consent of the Court provided that conviction
of one or more of them has already been performed against him.

CONCLUSION
The Code of Criminal Procedure, 1973 is a very elaborate Act which specifies the
manner in which the criminals must be prosecuted. The topic of “charge” has been
flawlessly narrated. It has given equal powers and rights to the Court and the
accused person. Hence, if this document is efficiently utilised by our learned
Magistrates then the judiciary will run very smoothly ensuring speedy and fair
delivery of justice.

Jurisdiction of the Criminal Courts in Inquiries and Trials

Introduction
The word jurisdiction is derived from the Latin terms “juris” and “dicere” which
means “law” and “speak” respectively. Every Court in India be it Supreme Court,
High Court or the Lower Courts, has its jurisdiction under which they are required
to inquire or try or decide upon an offence. No Courts can go beyond their
jurisdiction as prescribed under the law. The rationale behind jurisdictionis to
ensure the proper, legitimate and systematic functioning of the judiciary.

The Supreme Court of India has original, appellate and advisory jurisdictions as
provided under Articles 131, 133 to 136 and 143 of the Constitution of India
respectively. The High Courts in India on the other hand have the original,
appellate, writ and supervisory jurisdictions.

Similarly, Sections 177 to 189 of Chapter XIII of the Code of Criminal Procedure,
1973 provide for the jurisdiction of Criminal Courts in India.

• Ordinary place of inquiry and trial - Section 177 of the Code (CrPC)
provides that the inquiry and trial of an offence must be conducted by a Court
within whose local jurisdiction the offence has been committed.
• Place of inquiry or trial Section 178 provides that in case of an
ambiguity that exactly in which local area an offence was committed, or if it was
committed partly in one local area and partly in another, or if it continued to get
committed in more than one local area, then it may be tried or inquired by any of
the Courts having the jurisdiction of any of such local areas.
• Offence triable where act is done or consequence ensues Section 179 of
the Code provides that when an offence is committed in a certain local area and its
consequences occur in some other local area, then its trial or inquiry can be
conducted by any Court having the jurisdiction of either of such local areas.
• Place of trial where act is an offence because of relation to other
offence As per Section 180 of the Code, when an offence is committed concerning
another act that itself is an offence or would be an offence if was committed by
the doer himself, then the first mentioned offence can be tried or inquired by the
Court having jurisdiction of such local area.
• Place of trial in case of certain offences
• Section 181 (1) says that any offence of thug or murder committed by a
thug, or of dacoity, of dacoity with murder, or of belonging to a gang of dacoits
or escaping from custody can be tried by a Court having jurisdiction over that
local area where either the offence was committed or the accused was found.
• In case of dacoity or abduction, the Court in whose local jurisdiction
the offence was committed, or the kidnapped person was detained or conveyed or
concealed; can conduct the trial or inquiry of the offence, as provided under
Section 181 (2).
• As per Section 181 (3), if the offence of robbery, theft, or extortion
has been committed, it can be tried by a Court in whose local jurisdiction any of
such offence was committed or the stolen property was possessed by a person or by
anyone who knew that such property is stolen property.
• Section 181 (4) of the Code provides that in case of criminal
misappropriation or criminal breach of trust, the Court in whose local jurisdiction
the offence was committed or the property subject to the offence was received or
retained or was required to be returned by the accused.
• As per Section 181 (5), the offence related to the possession of stolen
property can be tried or inquired by the Court having local jurisdiction of the
area where the offence was committed or the stolen property was possessed or
received by the person having knowledge that such property is stolen.

• Offences committed by letters, etc.

• If the offence of cheating is committed by the means of letters or
telecommunication messages can be inquired about or tried by the Court in whose
jurisdiction such messages were received or sent. Also, the offence of inducing the
delivery of property can be inquired or tried by the Court in whose jurisdiction
the property was delivered by the deceived or received by the accused, as per
Section 182 (1) of CrPC.
• As per Section 182 (2), if the offence committed under Sections 494
(Prohibition to marry again during lifetime of husband or wife) and 495
(concealment of former marriage from person with whom subsequent marriage is
contracted) of IPC, then it can be inquired or tried by the Court in whose local
jurisdiction it was committed or where the offender last resided by his or her
spouse by first marriage or where the wife by the first marriage took the permanent
residence.

• Offence committed on journey or voyage - Whenever an offence is

committed by or against a person, or a thing, in the course of a journey or voyage,
then the Court into or through whose local jurisdiction area that person or thing
passed during such journey; can conduct the inquiry or trial of such offence as per
Section 183 of CrPC.

• Place of trial for offences triable together Section 184 says that
• if an offence has been committed which can be charged or tried under
Sections 219, 220, 221 of CrPC, or
 • if the offence or offences are committed by one or more persons which
can be tried or charged together by virtue of Section 223, then those offences can
be tried or inquired into by the Court that is competent to try or inquire into
such offences.

• Power to order cases to be tried in different sessions divisions - The

State Government under Section 185 has got the power to order for the trial of an
offence triable in any district, to be tried in any sessions division; the
condition being it should not be repugnant to any direction previously issued by
the Hon’ble High Court or the Supreme Court under the Constitution, or under this
Code or any other law for the time being in force.

• High Court to decide, in case of doubt, district where inquiry or trial

shall take place If more than one Court has taken cognizance of an offence and the
doubt arises as to which Court should inquire and try such offence then,
• the decision regarding the same shall be taken by the High Court if all
such Courts are subordinate to it (Section 186 a).
• However, in case the Courts are not subordinate to the same High Court,
then the High Court within the local limit of whose criminal appellate jurisdiction
the proceedings were commenced first, shall decide upon it and hence, all other
proceedings with respect to such offence shall be discontinued (Section 186 b).

• Power to issue summons or warrant for offence committed beyond local

jurisdiction - Section 187 provides that,
• if a first-class Magistrate finds a reason to believe that an offence
has been committed outside his local jurisdiction, by a person within his local
jurisdiction and such offence cannot be tried or inquired by him under Sections 177
to 185 or any other law for the time being in force, then he may inquire into such
an offence as if it was committed within his jurisdiction and compel such person to
appear before him and also transfer the person to the Magistrate having local
jurisdiction of such offence.
• However, if there are more Magistrates than one, under whose
jurisdiction such offence was committed, then the Magistrate acting under this
Section cannot be qualified to decide as to whom the accused shall be transferred.
In such a case, the Hon’ble High Court decides over the same.

• Offence committed outside India Section 188 states that if an offence

is committed outside India by the Indian citizen, or by someone who is not an
Indian citizen on the ship or aircraft registered in India; then such an offence
may be tried as if it was committed in India, provided that the previous sanction
of Central Government is necessary. Receipt of evidence relating to offences
committed outside India.

• As per Section 189, when any offence is inquired into or tried under
the provisions of section 188, the Central Government may, if it deems fit, direct
that copies of depositions made or exhibits produced before a Judicial officer in
or for that territory or before a diplomatic or consular representative of India in
or for that territory shall be received as evidence by the Court holding such
inquiry or trial in any case in which such Court might issue a commission for
taking evidence as to the matters to which such depositions or exhibits relate.

Conclusion
Jurisdiction of the Courts, as already mentioned above, is extremely important for
the smooth and systematic function of the judiciary. As the different organs of the
Government i.e. Legislature, Executive and Judiciary are kept separate from each
other so that there could be no interference in the functioning of each organ of
the Government and also prevent the arbitrariness of any of the organs. It also
ensures the fair functioning of all the three organs of the Government. Similarly,
in the judiciary, the functioning of all the Courts is decided according to the
hierarchy and the kinds of duties and powers the respective Courts are assigned
with. Hence, the jurisdiction of the Courts facilitates the just and fair
functioning of the Courts by ensuring that none of the Courts is overburdened with
the cases to decide upon and no Court is given an opportunity to get away with its
obligations prescribed by the respective Indian laws.

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

What is a Trial?
Meaning of Trial: – Trial is the process in a court of law where a judge or a
magistrate listens to evidence and decides if somebody is guilty of a crime or not.
A trial is a coming together of parties to a dispute, to present information (in
the form of evidence) in a tribunal, a formal setting with
the authority to adjudicate claims or disputes. There are 4 types of trial of
offences in Indian legal system namely Trial by Court of Session, Trial of Warrant
case, Trial of Summons case, Summary trials.

The tribunal, which may occur before a judge, jury, magistrate or other

designated trier of fact, aims to achieve a resolution to their dispute.
The term “trial” is not defined anywhere in the Code of Criminal Procedure,
however, it means a commonly understood stage of trial that begins after the
preparation of the charge and ends with conviction or acquittal.

In simple terms, a trial can be defined as a formal examination of evidence by a

judge, usually before a jury, so as to decide a crime in a criminal or civil
proceeding case.

What are the types of trials in Indian legal system?

The trial of the accused in Indian criminal law is divided by the punishment of the
said crime.
The trial of the accused for the crime committed by him is divided into four types:
–
1. Sessions Trial or Trial by court of Session: – If the offence committed
is punishable with more than seven years of imprisonment or Life imprisonment or
Death, the trial is to be conducted in a Sessions court after being committed or
forwarded to the court by a magistrate.
2. Warrant Trial or Trial of Warrant cases: – Warrant case includes
offence punishable with the death penalty, imprisonment for life and imprisonment
exceeding two years.  A trial in a warrant case begins either by filing an FIR in a
Police Station or by filing it before a Magistrate.
3. Summons Trial or Trial of Summons cases: – If the offense committed is
punishable by imprisonment less than two years, it is treated as a summons case. In
relation to this crime, it is not necessary to frame charges. The magistrate issues
summons under section 204 (1) (a) of Cr.P.C, 1973. “Summons case” means a case
related to the offense, not a case of a warrant.
4. Summary Trials: – The trials in which cases are disposed of rapidly and
a simple procedure is followed and recording of such trials are done summarily. In
this trial only small cases are taken up and complex cases are reserved for summons
and warrant trials. The legal provisions for summary trial are given under section
260-265 of Cr.P.C, 1973.

Legal Provisions for the Trials in Criminal Procedure Code

• Sections 225-237 deal with trial of warrant cases by a Session court.
• Sections 238-250 deal with trial of warrant cases by magistrates.
• Sections 251-259 provides procedure for trial of summons cases by
magistrates.
• Sections 260-265 make provisions relating to summary trials.

Procedure in different types of Trials

1. Procedure of Court of Session Court in Criminal Trial
Chapter XVIII of Code of Criminal Procedure starting with Section 225 and ending
with Section 237 relate to the provisions governing the trial before the Court of
Session. The court of session has to go through three stages of trial: –

• First Stage of Trial

• Section 226: – In the Court of Session, each trial is to be conducted
by the Public Prosecutor (Section 225). The Court of Session is not only
accountable in taking cognizance of the offences under Section 199; it can also
take cognizance of any matter pertaining to the offence of grievous nature. To be
more clear and concise, the Sessions Court is a court at the district level serving
only for more henious and serious cases. The accused is brought before the court
for proof of his crime. The prosecutor’s first and most important job is to present
evidence in court to prove the guilt of the accused.
• Section 227: – If after considering the evidence and presenting the
accused, the judge considers that there is no sufficient basis for the proceedings
against the accused, he will discharge the accused after recording the reason for
doing so. If after consideration of the case the court considers that the accused
has committed an offense which is triable by the court, then the court will frame
the charges in writing against the accused of the offense but if not exclusively
triable  by the court after the session, the charges are fixed. After doing so, the
case is transferred to the Chief Judicial Magistrate or any Judicial Magistrate of
the first class.
• Section 228: – The allegations alleged must be read aloud and clearly
in front of the accused with an easily understandable language and the accused is
asked whether he is guilty of the above charges.

• Second Stage of Trial

• Section 229: – If the accused is very well aware of the charges framed
against him and pleads guilty to the same, the judge will file his plea and convict
him, but it all depends on the discretion of the judge. Under section 229, the
judge has the power to convict the accused, but it is desirable that the accused is
not directly convicted. The prosecution will have to call in order to prove its
case by adding appropriate course evidence.
• Section 230: – If the accused refuses to plead under section 229, the
judge will fix a date for prosecution of witnesses, production of any documents 
etc. On the due date fixed by  the judge, he will examine the witnesses, evidence
can be produced in support of the prosecution.

• Third Stage of Trial

• Section 232: – If after examining the accused and the evidence given by
the prosecution, the judge considers that there is no evidence that the accused
committed the crime; The judge acquits the accused.
• Section 233: – If the evidence given by the prosecution clearly
justifies the court in framing of charges and acquitting the accused, then the
defense counsel will add evidence in support of his client. Even the accused can
apply for the issue of any witness or the issue of any process for the production
of a document or thing but this should not give a wrong impression to the court
defeating the ends of justice.
• Section 234 and 235: – After hearing both sides, when the issue arises
to make a closing statement that section 314 of the Act applies and a closing
statement is given by defence. The judge will give the final decision after keeping
in mind all the evidences.

2. Procedure of Trial in Warrant Cases

Chapter XIX of Code of Criminal Procedure begins with Section 238 and ends with
Section 250, with the provisions governing warrant trials.
For the hearing of warrant cases by magistrates, procedures are laid down. One is
adopted by magistrates in cases instuted  on police reports, (Sections 238 to 243
Cr.P.C. and 248 to 250 of CrPC) and in for cases imposed otherwise than in police
reports. (Sections 244 to 247 CRPC and 248 to 250, 275 CrPC).

Police Case
• First Stage of Trial
• Section 238: – In compliance with Section 207, the Magistrate should
satisfy himself that he has been supplied with all necessary documents along with
the charge sheet.
• Section 239: – If after considering the charge sheet filed under
section 173, the magistrate considers the charge against the accused to be
baseless, he shall discharge the accused and record the reasons for such discharge.
• Section 240: – If in the magistrate’s  opinion in the case that the
accused is triable  then charges will be framed against the accused.

• Second Stage of Trial

• Section 242(3): – After framing the charge under section 240, the
magistrate must prove under section 242 Cr.PC and under sub-section (3) of that
section that the magistrate proceed to take all such evidence arising in support of
the prosecution.
• Section 243: – This provision and the provisions in sub-sections (1)
and (2) of Section 243, CrPC, are mandatory. And section 243 provisions  apply to
cases instuted  under police report and personal complaint.

Private Complaint
• First stage of trial
• Section 244: – If the case is filed on a private complaint and the
accused is brought before a magistrate, the prosecution must satisfy itself with
all the evidence produced and may issue summons to give directions to witnesses to
attend or produce any document.
• Section 245: – After taking all the evidence under section 244, if the
magistrate finds it appropriate to free the accused at any previous stage of the
case, his charges are considered baseless.

• Second stage of trial

• Section 247: – The defense counsel will present his evidence to support
the accused. If charges are framed against the accused and the magistrate finds him
not guilt then the order of acquittal will be issued and he will be issued.
• On the off chance that any case is organized on the objection to judge
or to Police official or a blamed individual is introduced before the justice and
officer finds that there is no ground against denounced individual then he will be
released quickly by the judge, the individual who did the protest will be called to
give clarification of why he ought not pay add up to the individual against whom
blamed charges were made.

3. Procedure of Trial in Summons Cases

Chapter XX of Code of Criminal Procedure begins with Section 252 and ends with
Section 259, which governs summons trials.

• First stage of trial

• Section 251: – On the appearance of the accused before the magistrate,
the offense for which he has been charged, should be communicated to him and ask
him whether he is guilty of the same offense to which he is charged.
• Section 253: – Where the accused has been summoned under section 206
and, therefore, he pleads guilty without appearing before the magistrate, he shall
transmit to the magistrate by post or through a messenger. He will also explain the
fine in the summons, but if the accused does not uphold his plea of guilty, the
magistrate with his discretionary powers will sentence him to pay the penalty
specified in his summons.
• Procedure when not convicted under Section 252 or Section 203: – Then
in such a case a magistrate shall hear the prosecution and take evidence arising in
support of the prosecution and directing him to produce in court or produce
documents or any other thing .

• Second Stage of trial

• Acquittal  or Conviction: – If the Magistrate is satisfied that the
accused has committed the offence then the magistrate can convict the accused under
Section 252 or Section 255 and where the magistrate is taking evidence under
Section 254 and finds that the accused is not guilty of the charges framed against
him then he will order acquittal and will release the accused.
• Withdrawal of complaint (Section 257): – Before the final order is
passed, if the complainant satisfies the magistrate that he has sufficient grounds
to withdraw his complaint against the accused, and then the magistrate can allow
him to withdraw the case.
• Power of court to convert summon cases in warrant cases (Section 259):
– In the course of summons case with offense punishable for a period not exceeding
six months, if in the interest of justice, the magistrate may convert  the summons
case into the warrant case and rehearsing the case in the manner provided in the
warrant case procedure.

4. Procedure of Summary trial

Chapter XXI of the Code of Criminal Procedure begins with section 260 and ends with
section 265 L, which governs summons trials. The most important objective of
summary trial is to dispose of the cases speedily.
Procedure to be followed (Section 262): – The procedure to be followed under
summary trial  is similar to the procedure specified for summon trail.
If the penalty is not more than two hundred rupees, no chance of appeal will be
given.
• Section 264: – In each case of summary trial, if the accused is not
guilty, the magistrate will record the substance of the evidence and the judgment
given must also contain a brief description of the reason for coming to a
particular finding.
• Section 265: – Emphasizes that every such record i.e. the details
mentioned in Section 263 and the substance of evidence and judgment should be
recorded in the language of the court.

Case laws on types of trials in India

1. Shivaji Sampat Jagtap vs. Rajan Hiralal Arora
In this case court observed that the Hon’ble Bombay High Court observed that, “the
succeeding   magistrate in a   case,  the procedure contemplated under section 263
and 264 of the Code in detials has not been followed, and there is no need to  hold
a trial de novo”, and the view was upheld in J.V.Baharuni vs. State of Gujarat 2007
CriLJ 122.
2. Biru Ram vs Ishar Singh & onr.
In this case , court held that section 253 of the Code of Criminal Procedure,
provides that nothing in this section shall be construed to prevent a magistrate
from discharging the accused at any previous stage of the case and the reasons
should be recorded by such magistrate he considers this allegation as baseless.
3. Vijay Raj vs State of Rajasthan
In this case held that the procedure to be followed after the accused is called
upon to present his defense, is similar to the the cases generated upon a police
report and those instituted otherwise than on police report.
4. State of U.P. vs. Lakshmi Brahman
In this case held that in reference to  the magistrate’s duty at the level of
commitment. The Court considered the nature of duty on the Magistrate complying
with Section 207 Cr.P.C. And that the duty imposed by section 207 on the magistrate
is to be judicially performed.

Judgement and Sentences under the Code

Application of Judgment in India under the Criminal Procedure Code, 1973
Chapter XXVII, Section 353 to 365 of the Criminal Procedure Code, 1973, deals with
The Judgement. However, there is no definition of “judgement” present in the Code,
but it is to be understood as the final order of the Court. 
In the case of Ismail Amir Seikh vs. the State of Maharashtra, it was held that a
judgment is the act of judging. It was pointed out that judgment should distinctly
mention the reason for accepting an argument and rejecting the other. 

SECTION 353 – Judgment 

Ratio decidendi and Obiter dicta form an important part of the judgement. Ratio
decidendi of a judgement may be defined as the principles of law formulated by the
Judge to decide the problem before him whereas, obiter dicta means observations
made by the Judge, but are not essential for the decision reached. These two are
very important as they define the legal principles which are useful to the legal
fraternity.
If the judgement is of acquittal: –
• Whether the evidence of the prosecution failed to prove the guilt of
the accused or merely failed to prove it beyond a reasonable doubt.
• If the act or omission from which the liability might arise doesn’t
exist.
If the judgement is of conviction: –
• The essential elements of the offense committed by the accused and the
intervening circumstances which led to the commission of this offense.
• Participation of the accused as the principal perpetrator, or
accomplice or accessory.
• The penalty that is imposed on the accused.
The absence of a pleader during the pronouncement of a judgement shall not be
deemed to be enough reason for causing any delay in judgement.

SECTION 354 – Language and Contents of the Judgment

1. Under Section 354, of CrPC, it is stated that every judgement should be:
• In the language of the Court.
• Shall contain the points of determination and the reason for the same.
• The offense should be specified and the reason for the same should be
given for the same. 
• The offence committed must be mentioned in the IPC or any other law
under which the crime is committed and the punishment is given.
• If the offender is acquitted, the offense for which he is acquitted,
the reason for the same and it must be specified that a person is now a free man.

2. If the judgment is passed under the IPC and the judge who is delivering the
judgement is not certain about under which Section the offence is committed or
under which part of the Section, the judge should mention the same in the judgement
and should pass orders in both the alternate situations.
3. The judgement shall give a proper reason for the conviction if it is a sentence
for life imprisonment and in case of death penalty the special reason has to be
given.

SECTION 355 – Metropolitan Magistrate’s Judgment

Under Section 355 of the CrCP, it is mentioned that the judge instead of giving the
judgement in an above-mentioned way, can deliver it in an abridged version that
would contain-
• The serial number of the case,
• Date of the commission of the offence,
• Name of the complainant,
• Name of the accused person, his parentage and residence,
• Offence complained of or proved,
• Plea of the accused and his examination,
 • Final order,
• Date of the order,
• In cases when the appeal lies from the final order either under S.373
or S.374(3) of this Code, a brief statement of reasons for the decision.

This section has its mention in the Allahabad High Court case of State v. Mahipal
And Others, 25th October, 2013.

SECTION 356 – Order for Notifying Address of a Previously Convicted Offender

This section tells us about the order regarding notification of the address of a
previously convicted person.

In cases decided by the Court of Session or a Chief Judicial Magistrate, the Court
or such Magistrate as the case may be shall forward a copy of its or his finding
and sentence (if any) to the District Magistrate within whose local jurisdiction
where the trial was held.

SECTION 357 – ORDER TO PAY COMPENSATION

Under Section 357 of the Code, when a Court imposes a sentence or fine or a
sentence in which fine is also included then the Court while passing judgment may
order the whole or any part of the fine recovered to be used:
• In defraying the expenses incurred during the prosecution.
• In the payment to any person as compensation for any loss or injury
caused by the offence, when compensation is recoverable in the Civil Court.
• When a person is convicted of any offence for causing the death of
another person or have encouraged the commission of such an offence, have to pay
compensation to the persons who are, under the Fatal Accidents Act, 1855 entitled
to recover damages from the person sentenced for the loss resulting to them from
such a death.
• When a person is convicted of any offence including criminal
misappropriation, theft, criminal breach of trust, cheating, dishonestly receiving
or retaining, or willingly assisting in the disposal of any stolen property knowing
that the property has been stolen then compensation has to be given to the bona
fide purchaser of such property for the loss of the same if such property is
restored to the person who is entitled to the possession of it.

If the fine is imposed in a case which is appealable, no such payment shall be made
before the period allowed for presenting the appeal has lapsed, or if an appeal is
presented then before the decision of the appeal is delivered.
Moreover, when a Court imposes a sentence, in which fine is not included, the Court
while passing judgment may order the accused person to pay, in the form of
compensation, the amount as may be specified in the order to the person who has
suffered any loss or injury by reason of the act for which the accused person has
been sentenced. An order can also be made by an Appellate Court or by the High
Court or Sessions Court while exercising its powers of revision.

It is important to note that at the time of awarding compensation in any civil suit
relating to the same subject matter, the Court will take into consideration any sum
paid or recovered as compensation under this Section.
Sub-sections: – 
• S.357A describes victim compensation scheme
• S.357B deals with compensation to be in addition to fine under S.326A
and S.376D of the Indian Penal Code
• S.357C deals with treatment of victims 

SECTION 358 – Compensation for Wrongful Arrest

Under Section 358, it is stated that in case a person compels the police to arrest
another person, which the Magistrate thinks that there is no ground for such
arrest, the Magistrate may order compensation not exceeding Rs 1000, to be paid by
the person who causes such arrest. The fine is given as a way of compensation for
the loss of time and expenses or other matters, as the judge may think fit. If more
than one person is arrested on such a basis, then each of them should be awarded a
compensation not exceeding Rs 100, as the Magistrate thinks fit. Such compensation
shall be recovered as a fine and if the person does not pay the compensation then
the Magistrate can sentence him to imprisonment not exceeding 30 days unless the
compensation is sooner paid. 

SECTION 359 – Order to Pay Costs in Case of Non-Cognizable Offence

In Section 359 of the Code, it is held that whenever the Court convicts the
offender in a non-cognizable offence, then along with the sentence of the crime, it
can also order the payment of expenses that are borne by the complainant, these
expenses would include the fees of the witness, pleaders fees or any other which
the Court deems fit. The payment could be made in full or in installments. In case
of default of such payment, the Magistrate may order imprisonment not exceeding
thirty days.

SECTION 360 – ORDER TO RELEASE ON PROBATION OF GOOD CONDUCT OR AFTER ADMONITION

Section 360 of the CrPC mentions a provision in which a person could be released on
good conduct or after admonition. In this, if a person is not under the age of 21
years and is not convicted of an offence which is punishable with a fine or a term
which is seven years or less. Also if a person is more than 21 years of age or a
woman is convicted of an offence which is not punishable with a death sentence or
life imprisonment and no previous conviction is there against the person then if
the Court thinks it is fit as per the age, character, antecedents of the offender
and the circumstance under which the offence was committed, that it is expedient to
release the person on good conduct and the Court instead of punishing him, may or
may not order him to be released in the sureties. Such a person has to appear
before the Court to receive the sentence of the punishment not exceeding 3 years
and in the meantime peace and good behaviour, must be exercised.

If the first offender is convicted by the magistrate of the second class then the
magistrate has to record its opinion to that effect and submit it to the first
class magistrate. The first class magistrate will hear the case in the same manner
as if it originally came to his Court and he may order further inquiries if he
feels that it is necessary to do so. He may order to record evidence or do it by
himself.
Suppose a person is convicted of theft, misappropriation, cheating, or any other
offence under the IPC, and is punishable with not more than two years of
imprisonment or fine. Then, in this case, the person is not previously convicted of
any other offence, the Court may if it deems fit can release the person based on
his age, antecedent, mental and physical condition, character, the trivial nature
of the offence, or any circumstances which took place. The Court may release him
after due admonition. An order under this Section could be given by the Appellate
Court or High Court or Court of Session while exercising its power of revision.

The Court should ensure that the offender and his sureties must get a place of
living and a regular occupation of observation as specified by the Court.

SECTION 361 – Special Reasons to be Recorded in Certain Cases

The Code through Section 361 makes the application of Section 360 necessary
wherever possible and in cases in which there is an exception to state clear
reasons. The judge must give specific reasons for awarding the punishment which is
below the minimum prescribed under the relevant laws of the country. The act of
recording the specific reason is an irregularity and can set aside the sentence
passed on the ground of failure of justice. The Probation of Offenders Act, 1958 is
very similar to Section 360 of the CrPC. It is more elaborate in the sense that it
explicitly provides for conditions of release order, a supervision order, payment
of compensation to the affected party, powers and predicaments of the probation
officer, and other particulars that might fall in this field. Moreover, Section 360
would cease to have any force in the States or parts where the Probation of
Offenders Act is in force.
Sub-section (b) of S.361 says that, a youth offender under the Children Act 1960
(S.60 of 1960), or any other law for the time being which is in force for the
treatment, training and rehabilitation for young offenders, but has not done so, it
shall also record in its judgement the reason for not having done so.

SECTION 362 – Court not to Alter Judgment

This section tells us that once a judgement is pronounced, no change shall be made
by the court or the presiding officer on such judgement. Unless the appeal is filed
at a higher court.
In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736, the Supreme Court held
that the prohibition in Section 362 of CrPC, against the Court altering or
reviewing its judgment on this case, is subject to what is “otherwise provided by
this Code or by any other law for the time being in force”. Those words, in turn,
refer to those provisions only where the Court has been expressly authorized by the
Code or other law to alter or review its judgment. The power inherited by the Court
is not contemplated by the saving provision contained in Section 362 of the CrPC.

SECTION 363 – Copy of the Judgment to be Given to the Accused and Other Persons
Section 363 of the CrPC states that when the sentence of imprisonment is
pronounced, the guilty must be immediate, given a copy of judgement-free of cost.
If the accused applies, the copy of the judgment in his language (if possible) or
in the language of the Court shall be translated and given to him in every instance
where such a case is appealable. This copy should be given to him free of cost.
However, if the High Court confirms the death sentence of the accused, then he
should be given a copy of the judgement even if he has not applied for the same.
Except for these cases, the accused will get a copy of the judgement or order, once
he makes the payment of the specified charges, or in special cases, as the Court
shall deem fit, will be given to him free of cost. Furthermore, if the appeal to
the judgement lies in the higher Court, then the accused must be informed of the
time within which he should appeal, and his appeal must be preferred. Moreover,
other persons who are not affected by the judgment of the High Court shall get a
copy of the same after payment of specified prices and following certain conditions
as ascertained by the High Court in the rules made by it.

In the case of Shree Lal Sarof v. State of Bihar, the Court held that when a person
is affected by a judgement or an order passed by a criminal court, then on the
application made in this behalf under S. 363(5), and on the payment of the
prescribed fees, he has to be provided a copy of the order, disposition or other
parts of the record irrespective of whether he has appeared in the court or not. 

SECTION 364 – Judgment when to be Translated

This section provides that every judgement pronounced by a court must be recorded.
In an instance where such judgement is not in the language of the court and the
accused requires so, then the judgement should be translated into the language of
the court and stored accordingly.

SECTION 365 – Session Court to Send a Copy of Finding and Sentence to the District
Magistrate
This section tells us that in case a judgement is pronounced by a Court of Session
or by a Chief Judicial Magistrate, then a copy of such a judgement should be sent
to the office of the District Magistrate, under whose local jurisdiction the trial
is held.

CONCLUSION
Judgement forms an important part of any legal proceedings as it mentions the
decisions that are taken after hearing the argument from both sides and the reason
for the same. Chapter XXVII of the Criminal Procedure Code, 1973, lays down a
detailed description of the judgement in criminal matters. Provisions relating to
the language, contents, etc are provided. Separate provisions are present for
delivering judgement in cases relating to the death sentence, fine or
imprisonment. 

Submission of Death Sentences for Confirmation

Introduction
Chapter XXVIII of the Code of Criminal Procedure, 1973 (CrPC) deals with the
confirmation of the death sentence and Chapter XXXII of the CrPC deals with the
execution of the death sentence. Our Indian criminal laws are framed in a manner to
avoid or minimize errors and facilitate the smooth functioning of the criminal law
system.

According to the report of Project 39A on the death penalty, released by National
Law University, Delhi, around 1,810 people were sentenced to death by the trial
courts between 2000 and 2014. More than half of them were commuted to life
imprisonment and around a quarter of them, were acquitted by the Hon’ble Supreme
Court and High courts of India.In the year 2018, India was among the top 7countries
to award the death penalty to convicts. The lower courts awarded the death sentence
to 162 convicts as per the report. Also, the Apex Court upheld the death sentence
of 73 prisoners, out of which many have spent a decade on death row already. The
Apex Court commuted 11 death sentences to life imprisonment in the year 2018.

What Are The Offences That Are Subjected To Death Penalty In India?
Capital Punishment is a kind of punishment in which a person is executed and
deprived of his life by the law because of the commission of a certain crime, after
a proper trial before the concerned court. There are certain offenses that are
subjected to the sentence of death under the Indian Criminal Laws. Such offenses
include
• Waging war against the State (Section 121 of IPC, 1860),
• Terrorism (Section 16 of UAPA, 1967),
• Aiding or abetting Sati (Section 4 of Commission of Sati (Prevention)
Act, 1987),
• Falsely implicating an SC/ST person in a capital case (Section 3(2)(i)
of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act,
1989),
• Murder (Section 302, 303 of IPC), Rape/ gang rape and murder (Section
376 IPC),
• Rape/ gang rape of minor below 12 (Section 376 DB of IPC).

The Provisions For The Confirmation and Execution of Death Under CrPC
• Sentence of death to be submitted by Court of Session for confirmation
- Section 366 of CrPC says that, whenever a sentence of death is passed by the
Court of Session, the same cannot be executed unless it is confirmed by the Hon’ble
High Court. In order to get the confirmation, the proceedings of the case need to
be submitted to the Hon’ble High Court. Meanwhile, the Court that passes the death
sentence is required to keep the convicted person safe in jail custody under a
warrant.

• Power to direct further inquiry to be made or additional evidence to be

taken Section 367 provides that, if the Hon’ble High Court deems it fit to carry-on
further inquiry or seeks additional evidence regarding the case concerned, then it
may do so either itself or direct the Court of Session to do the same. Further, if
such an inquiry is made by the Hon’ble High Court then the convicted person’s
presence may be eliminated during the process. And in case no such inquiry is made
by the High Court, then the Court of Session is to be certified with the result of
the inquiry conducted or evidence taken up by it.
 • Power of High Court to confirm sentence or annul the conviction Section
368 of CrPC talks about the powers of the Hon’ble High Court to confirm the
sentence provided to the convicted person or acquit him, depending upon the
submission made before it by the Court of Session. The Hon’ble Court may even pass
any other order or sentence, authorized by the law or order a whole new trial or
make the desired amendments to the concerned case.

• Confirmation or new sentence to be signed by two Judges Section 369 of

CrPCrequires the Hon’ble High Court to get the confirmation or any new sentence if
passed by it in furtherance of the submission made to it, signed by at least two
judges if such a Court consists of two or more judges.

• Procedure in case of difference of opinion Section 370 of CrPC provides

that if the opinions of the Judges of Hon’ble High Court in deciding a matter
submitted to it become contradictory and the number of Judges deciding on either
side are equal, then the fate of the case is decided in a manner subject to the
provisions of Section 392 of CrPC. Therefore, in the above-mentioned situation of
equally divided opinions of the Judges in an appeal, then such an appeal is laid
before the other Judge of that High Court. That judge then gives his opinion
regarding the case followed by the final judgment. Also, if one of the Judges of
such a Bench or such Court where the appeal is made to another Judge, deems fit,
may even ask for the re-hearing of the case by a larger Bench of Judges.

• Procedure in cases submitted to High Court for confirmation Section 371

of CrPC says that, as soon as the confirmation of the death sentence or any other
order has been passed by the Hon’ble High Court regarding the case submitted to it
by the Court of Session, the proper officer of the High Court send the copy of such
order under the seal of the High Court and his official signature, to the Court of
Session.

Execution of the death sentence:

• Execution of order passed under Section 368 - Section 413 says that,
when the Court of Session receives the final judgment of the Hon’ble High Court for
the confirmation of death sentence or any other judgment so passed, it must thence,
by issuing a warrant or taking any required step, bring such order into effect.

• Execution of sentence of death passed by High Court - Section 414 of

CrPC says that the death sentence if passed by the Hon’ble High Court needs to be
executed by the Court of Session by issuing a warrant for the same.

Controversy Regarding The Constitutional Validity of Capital Punishment

Whenever there is a commission of any heinous crime in India, people demand capital
punishment. The offenses like terrorism, rapes, murders, etc though attract the
death penalty under certain circumstances; still, it is believed that capital
punishments are against human rights.

It is a matter of debate whether the death sentences are a must to deliver justice
to the victims of the horrible crimes or are they against the human rights provided
by the Constitution of India. Since, the Right to Life and Personal Liberty,
guaranteed by the Constitution of India cannot be taken away under any
circumstances, is it legally and morally valid to deprive the convicts of such
rights that they were born with; is a big question. The question that arises is
that, whether capital punishment reduces the commission of heinous crimes? The
answer to this is no because every year, the crime rate is increasing in India. So
what is the rationale behind capital punishment? All of these questions arise
whenever there is a matter before the Indian Courts that involves the death
penalty.
The Hon’ble Supreme Court, therefore, provided for the doctrine of “rarest of the
rare” doctrine in the case of Bacchan Singh v. State of Punjab (AIR 1980 SC 898).
The Doctrine of Rarest of the Rare One of the first cases in which the issue of the
constitutional validity of the death penalty got raised was Jagmohan Singh v. State
of Uttar Pradesh. The counsel on behalf of the appellant argued that Section 302 of
the IPC violates Articles 14, 19, and 21 of the Indian Constitution. The five-judge
however, rejected all the contentions and ruled that the death penalty is
constitutionally valid. It ruled that a citizen cannot be deprived of his rights by
any law under Article 19 of the Indian Constitution unless such deprivation is both
reasonable and in the public interest. Also, since the legislature has not yet
declared the death penalty to be unreasonable, the same cannot be considered
unreasonable. Later several cases popped up before the High Courts and Apex Court
of India that involved the issue of the constitutional validity of capital
punishment. Bacchan Singh’s case is one of those.In the mentioned case, the
constitutionality of the death penalty was upheld by the Hon’ble Supreme Court by
the majority of 4:1. The Hon’ble Court provided that the death penalty, which is
the highest penalty that could be granted must be given only in the cases that come
under the ambit of the “rarest of the rare” category.

The scope of the doctrine was however left undefined in the Bacchan Singh case,
which was later defined in the case of Macchi Singh v. State of Punjab. In this
case, the Hon’ble Supreme Court of India laid down the criteria for the rare of the
rarest cases. The criteria so provided are:
1. Manner of murder – If a murder is committed in such a brutal,
ridiculous, diabolical, revolting, or reprehensible manner and it arouses intense
and extreme indignation in the community, like: Setting up the victim’s house on
fire with the aim to burn him/her alive. Torturing the victim withinhuman acts so
as to bring about his/her death. Cutting down the body of the victim into pieces in
a vicious manner.
2. Motive for murder– If total immorality and cruelty are the major
driving forces behind a murder, for example: A killeris hired for executing the
murder for the sake of a financial reward. A cold-blooded murder,designed in a
careful manner to get control over property or for any other selfish gains.
3. Socially heinous nature of the crime – If the murder of a person from
one of the backward classes is committed, which includes the cases of burning of
brides, also known as dowry deaths, it comes under this ambit.
4. Magnitude of the crime – If the intensity of the crime is extreme, such
as inthe cases of multiple murders.
5. The victim’s personality –If the victim of the murder is an innocent
child, a helpless woman or man (due to old age or infirmity), a public figure, etc.

Conclusion
The execution of the death penalty in India is being practiced for ages. However,
today when people are gaining awareness about their legal and fundamental rights,
the validity of the death penalty isbeing questioned. The Hon’ble Supreme Court
has,over the period of years and ina number of cases, tried to minimize the award
of the death penalty to the convicts. Around 104 countries across the globe have
completely abolished capital punishment and many of them have not awarded the death
sentence to their convicts in the past 10 years, which implies that they too are
de-facto trying to abolish such provision from their criminal law system. In India
however, it is subjected to the condition of “rarest of the rare” cases. The issue
continues to persist and hopefully, the upcoming cases and judgments will decide
the constitutional validity of capital punishments in India.

General Provisions as to Inquiries and Trial

Provisions as to Inquiries and Trials
Sections 300 to 327 deal with the general provisions relating to inquiries and
trials and sections 328 to 339 sets out provisions regarding inquiries and trials
as to accused persons of unsound mind.
 • Section 300 lays down a general rule that person once convicted or
acquitted not to be tried for the same offence Jathendra Singh vs Ranjit Kaur 2001.
The sub-secs to section 300 provides for the exceptions to the general rule.
(i) A person acquitted or convicted of any offence may be afterwards tried, with
the consent of the State Government, for any distinct offence for which a separate
charge might have been made against him at the former trial.
(ii) A person convicted of any offence constituted by any act causing consequences
which, together with such act, constituted a different offence from that of which
he was convicted, may be afterwards tried.
(iii) A person acquitted or convicted of any offence constituted by any acts may be
subsequently charged with, and tried for, any other oftence constituted by the same
acts , which he may have committed if the Court by which he was first tried was not
competent to try the offence with which he is subsequently charged
(iv) A person discharged under section 258 shall not be tried again for the same
offence except with the consent of the Court by which he was discharged or of any
other Court to which the first- mentioned Court is subordinate.

• Section 301 empowers the Public Prosecutor and Assistant Public

Prosecutor to appear and plead without any written authority.

• Section 302 empowers the Magistrate to permit any person to conduct the
prosecution Section 303 sets out the rights of the person against whom proceedings
are instituted to be defended by a legal practitioner of his choice.
It was held in Bashira vs State of U.P. that where a person is denied right to be
defended by a pleader of his own choice in violation of this section the trial
shall be illegal.

• Section 304 provides for legal aid to the accused at State expense in
certain cases if he is indigent person.

• Section 305 sets out procedure when Corporation, Registered society is

an accused.

• Section 306 provides for provisions relating to tender of pardon to

accomplice. An approver is a person who is an accomplice in crime and who turns out
a witness for the prosecution.
It was held in State of U.P vs C. Ganeshwar Rao 1850 that the object of the section
is to allow pardon to be tendered when in a case where grave offence is alleged to
have been committed by several persons, with the aid of the evidence of the person
pardoned the offence could be brought home to rest.

The Magistrate tendering pardon must maintain a record stating, (a) the reason for
his tendering pardon and (b) whether it is accepted or not.

• According to section 307 the Special Judge and Chief Judicial

Magistrate are empowered to tender pardon.

• Section 308 sets out provisions for the trial of person not complying
with conditions of pardon. Section 309 authorises the Magistrate to postpone or
adjourn the proceedings.
In P.G. Thampe vs State of Kerala 1994 Cr. L.J. 634 (Ker) it was held that when a
witness is present in court his examination should not be adjourned to another day
merely because counsel for the party is engaged in other case.

• Section 310 empowers the Magistrate to visit and inspect any place in
which an offence is alleged to have been committed. According to Section 311 the
court has the power to summon material witness or examine Sved Firozuddin vs State
of Rajasthan 1993 Cr.L.J. 1169 (Rai) Sawal Das vs State of Bihar AIR 1974 SC 778
 • Section 312 provides for expenses of complainant and witnesses and
criminal court may order such payment.

• Section 313 lays down the power to examine the accused and the court
may at any stage without previous warning may put questions to the accused.
It was held in Jai Deo vs State of Punjab AIR 1963 SC 612 that the object of this
section is to give the accused an opportunity to say what he wanted to say in
respect of the prosecution case against him. Under this section no oath shall be
administered to the accused when he is examined and shall not be punished if he
refuses to answer or gives false answers.

• Section 314 provides for addressing oral arguments and for filing
memorandum of arguments.

• According to section 315 the accused person shall be a competent

witness but he shall not be called as a witness except on his own request in
writing
It was held in Hargun Sundar Das vs State AIR 1970 SC 1514 that failure to give
evidence on the part of the accused shall not give rise to any presumption against
him.

• Section 316 curtails the use of any kind of influence by way of any
promise or threat to induce the accused to disclose or withhold any matter within
his knowledge.

• Section 317 provides for inquiries and trials to be held in the absence
of the accused in certain cases.

• Section 318 sets out the procedure where accused does not understand
proceedings. Under such circumstances the court may proceed with the inquiry or
trial and if such proceedings result in conviction the same shall be forwarded to
the High Court with a report of the circumstances of the case.

• Section 319 empowers the court to proceed against the persons appearing
to be guilty of offence if it appears to the court from any evidence that such
person could be tried together with the accused.

• Section 320 sets out law relating to compounding of offences.

• Section 320(1) mentions the offences that may be lawfully compounded
even without permission of the court.
• But if the offences to be compounded which are mentioned under section
320(2) the permission of the court is necessary.
• The offences not mentioned in either of these sections are not
compoundable.

It was held in Ram Lal vs State of Jammu & Kashmir 1999, that an offence which law
declares to be non-compoundable cannot be compounded even with the permission of
the court.

• Section 321 enables Public Prosecutor or Assistant Public Prosecutor

who is in charge of the case to withdraw from prosecution by filing an application.

• When the Magistrate has no jurisdiction to try the case section 322
provides that he shall stay the proceedings and it must be transferred to Chief
Judicial Magistrate along with brief report.

• According to section 323 when after commencement of the inquiry or

trial the Magistrate finds case should be committed then he shall commit it to
Court of Session.

• Section 324 provides that when a magistrate is satisfied that the

accused person was previously convicted of offence against coinage, stamp law or
property then he shall be sent for trial to Chief Judicial Magistrate or to Court
of Session.

• As per section 325 when the Magistrate cannot pass sentence

sufficiently severe or appropriate then he should submit the entire proceeding to
Chief Judicial Magistrate to whom he is subordinate and he shall forward all he
accused if there are more accused. The Chief Judicial Magistrate may pass sentence
or even he may commit the case to Court of Session.

• According to section 326 when a part case is tried by his predecessor

the succeeding may if he thinks necessary re-summon any witness, examine, cross-
examine or re-examine the witness.

• Section 327 provides that it is a general rule that the place in which
any criminal court is held be deemed to be an open court, to which the public
generally have access.

Provisions as to accused persons of unsound mind (Section 328 to Section 339)

• Section 328 sets out procedure in case of accused person being lunatic
- If the Magistrate has reasons to believe while holding inquiry that the accused
person is a lunatic or is incapable of making his defence. The Magistrate shall
inquire into such fact of unsoundness and shall cause such person to be examined by
Civil Surgeon of the District and shall examine such officer as a witness and
reduce the examination into writing and shall postpone the proceedings.

• Section 329 provides for a similar procedure to be adopted in case of a

person of unsound mind tried before the court.

• According to section 330 when a person is found t be unsound under

section 328 or 329 and is incapable of making defence the Magistrate, whether the
case is one where bail may be taken or not, may release him on sufficient security
being given that he shall be properly taken care of and shall appear before the
court when required by court.

• Section 331 provides for resumption of inquiry or trial on a

certificate of fitness that he is capable of making defence.

• Section 332 when the accused appears r is brought before the Magistrate
and the Magistrate considers him capable of making his defence, he inquiry or trial
shall proceed.

• Section 333 - In case he appears to be of sound mind the magistrate may

proceed with the case and based on evidence before him if he is satisfied that the
accused has committed an act, if committed by a person of sound mind would have
been an offence and he has reasons to believe that the accused was of unsound at
the time of commission of offence and that he was incapable of understanding the
nature of the act and act was wrong or contrary to law, then the Magistrate may try
himself or commit him to the Sessions Court for trial.

• According Sec.334 the Magistrate may acquit the accused on the ground
that the accused was of unsound mind at the time of commission of offence and
incapable of knowing the nature of the act but the judgment must state whether he
has committed the alleged act or not.

• Section 335 lays down that even if such accused is acquitted on such
ground he must be detained in safe custody. He may also pass an order that the
accused to be delivered to any of his relatives or friend but only on application
by such relative and also on giving security the person delivered shall be with
condition that he shall be properly taken care of and prevented from doing injury
to himself or to any other person and will be produced before such officer as
provided by the State Government.

• Section 336 sets out the power of State Government to empower officer
in charge to discharge the functions of Inspector General

• Section 337 lays down procedure where lunatic prisoner is reported

capable of making his defence. When the person is in prison the Inspector General
or if in asylum two visitors certify that he is capable of making defence and shall
be receivable in evidence, he shall be taken to Magistrate.

• Section 338 provides for procedure where the lunatic detained is

declared fit to be released. If Inspector General or visitors certify that he may
be released, the Government may appoint a commission with a judicial officer and
two medical officers for an inquiry as to the state of mind of such person, take
evidence if necessary and report to the Government.

• Section 339 provides that of the accused may be delivered to a relative

or a friend on application by such relative.

Execution, Suspension, Remission and Commutation of Sentencesa.

Execution of sentence of death
Execution of order passed under Section 368
Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence
without the confirmation of the High Court, till that time the convict has to be in
jail custody. The High Court, under Section 368 of the CrPC, looks into the case.
The High Court can:
Confirm the sentence given by the Session Court.
Annul the conviction and convict the accused of the same charges as that of the
Session Court or may order for fresh proceedings on the same or altered charges.
May acquit the person, as the time for the appeal has not lapsed yet or the appeal
has been disposed of.
Any order received by the Session Court from the High Court has to be executed by
the Session Court by way of issuance of a warrant. (Section 413 of the CrPC).
Execution of sentence of death passed by High court
Under Section 414 of the CrPC, if the High Court, passes the order of death
sentence in appeal or revision, the Session Court has to carry on the order by
issuing a warrant.
Duty of the jail superintendent in certain cases
When the High Court certifies to the Sessions Judge, any information regarding the
confirmation, annulment of charges of the accused in the case that was sent by way
of an appeal or revision, the Session judge will send a warrant to the
Superintendent of Jail of which the prisoner was originally committed. If the
prisoner is transferred to another jail, then, in that case, the Superintendent of
Jail has to send back the warrant

to the Sessions Judges who in turn will give the warrant to the Superintendent of
the Jail in which the prisoner is transferred.
In case of alteration of the charges by the appellate courts by way of an appeal or
revision, the same would be informed to the Superintendent of Jail to which the
prisoner is committed. Even in the case of immediate release of the prisoner from
the jail, the Sessions Judge by way of a warrant would inform the Superintendent of
the Jail. the superintendent after such execution will give the original warrant,
duly filled to the district magistrate in which the trial was held.
Postponement of execution of death sentence In case of appeal to the Supreme Court
Under Section 415 of the CrPC, 1973, the High Court may order for the postponement
of the execution of death sentence, if the case has been sent to the Supreme Court
for appeal (Article 134 of the Indian Constitution). The postponement would be
until the time for preferring such appeal has been lapsed or the appeal has been
disposed of, altogether.
If the death sentence has been confirmed by the High Court, the person so sentenced
may ask the High Court, by way of an application for the grant of a certificate
under article 134 or 132 of the Indian Constitution. The High Court has to postpone
the execution of the death sentence until such demand is disposed of by the High
Court or such certificate of appeal has been granted before the time of considering
such appeal by the Supreme Court has not lapsed.
When the death sentence has been confirmed by the High Court, but the High Court is
satisfied that the person so sentenced intends to file a Special Leave Petition to
the Supreme Court under Article 136 of the Indian Constitution. The High Court will
order the postponement of the execution of the death sentence till the time which
is reasonable for the person who is sentenced, to file such appeal in the Supreme
Court.
Postponement of capital sentence on a pregnant woman
Under Section 416 of the CrPC, if the woman who is sentenced is found to be
pregnant, then the High Court, in that case, can postpone the sentence or if it
deems fit, the High Court can also commute the sentence to life imprisonment.
Place of imprisonment

The State Government unless provided has the power to direct the place of
imprisonment for any person who is convicted under CrPC.
Moreover, if the person who is convicted under the provisions of CrPC, is confined
in the civil jail, then the magistrate of the court shall order that the person so
convicted, should be shifted to a criminal jail. However, if the person who was
transferred to the criminal jail from the civil jail, will be sent back to the
civil jail unless-
Three years have lapsed, the person, in this case, shall be released under Section
58 of the CPC, 1908 or Section 23 of the Provincial Insolvency Code.
The which ordered the imprisonment of the person in the civil jail orders the
officer in charge to release of the convicted person under Section 58 of CPC or
Section 23 of the Provincial Insolvency Code.
Execution of sentences of imprisonment
Under Section 418 of the CrPC, a person who is imprisoned for life or for terms
other than those mentioned in Section 413 of the CrPC, the court passing such
sentence has to give a warrant to the place where the person has to be confined
unless such person is confined to such place. However it must be the person who is
imprisoned till the court is rising, then there is no need to forward a warrant to
the jail and the person shall be confined as per the direction of the court.
Under Section 418(2) of the CrPC, if the accused is not present in the court at the
time when he is sentenced to such imprisonment, then, in that case, the court has
to order for the arrest of that person, by way of an arrest warrant, for forwarding
him to jail or any other place where he shall be confined and the sentence will
start from the time of arrest of the accused.
In the case of Ishwarbhai Hirabhai Churana vs the State of Gujrat, this Section is
held to be mandatory. Moreover, under this Section, the court also owes a duty to
ensure that the sentence is executed, otherwise, the accused may avoid it.
The warrant issued is non – bailable, as it empowers the authority to arrest the
person, after the issuance of this warrant. Such a warrant is necessary in case the
sentence was pronounced in the absence of the accused.
A warrant for the execution of sentence of imprisonment
Under Section 419 of the CrPC, the warrants for the execution of the sentence of
imprisonment has to be directed to the in-charge of the jail or of any place in
which

the accused is to be confined. But if the person is to be confined in the jail,

then the warrant needs to be given to the jailor.
Execution of the sentence of fine A warrant for the levy of fine
When the court sentences to levy the fine on the offender, it can recover it
through either or both of these methods
Issue of warrant for the levy of amount through the attachment of the movable
property of the offender.
Issue of a warrant to the district collector and order him to collect it as an
arrear of land revenue accruing from a movable or immovable property or both. The
collector, in this case, shall collect the arrears of revenue as per the prevailing
laws with respect to the collection of revenue in the country. The warrant here
will only serve the purpose of a certificate.
It is important to note that in case it is mentioned that there shall be
imprisonment if default of payment happens, and if the offender has already served
the default sentence, then no court shall issue such warrant, unless there are some
special circumstances which have to be recorded in writing, or if there is an order
for the payment of compensation of fine that arose as per the provisions of Section
357.
The state government can make rules in regards to how the execution of the recovery
of the fines would take place and the summary claims made by a person other than
the offender himself would be considered accordingly.
No such warrant shall be executed by the arrest or detention of the person in the
prison.
Effect of such warrant
The court shall order the attachment of property for the recovery of fines within
the local limits of its jurisdiction, however, it could order such attachment
outside its jurisdiction too if it is endorsed by the District Magistrate of the
area in which the property to be attached is present.
A warrant for the levy of fine issued by a court in any territory to which this
Code does not extend

If the offender has been sentenced to pay the fine in the territory where this
code does not apply, then the court would issue a warrant to the District Collector
of the area where the code applies and order him to collect the fine by way of
arrears of revenue. This warrant shall be treated as if it is issued under Section
421 of the Code and all the conditions would apply accordingly.
Suspension of execution of the sentence of imprisonment in default of payment of
fine
When the offender has been sentenced to fine only and in case of default of payment
he shall be imprisoned, and if the fine is not paid then:
The order that the fine shall be made in full within 30 days of such order or in
instalments in which the first instalments shall be made within 30 days of such
order and the next instalments within the intervals of not more than 30 days.
The court may order the suspension of imprisonment order, if the offender gives a
bond with sureties or not, depending upon the court, for the payment of the fine in
full or in instalments. If the offender fails to furnish the fine at the latest
date on which such instalments has to be made, then the court shall order the
execution of the imprisonment order.
This shall also apply in the case where the order for the payment of money has been
made for the non- recovery of which imprisonment may be made. And if the person
fails to furnish a bond for the payment of the fine, the court may order the
execution of the imprisonment immediately
General provisions regarding the execution Who may issue a warrant?
Under Section 425, every warrant which is issued for execution is to be given by
the Magistrate or the Judge or Magistrate who passed the sentence or by their
successor in- charge.
The sentence on an escaped convict
If a sentence of death, life imprisonment or fine is passed under the provisions of
this code, on an escaped convict, then the execution of such sentence should take
effect immediately.
When the sentence is passed on the escaped convict then:

When this sentence is more severe than the previous sentence from which the
convict escaped, then the sentence shall take place immediately.
If the present sentence is less severe than the sentence from which the convict
escape then the accused has to serve the term which is remaining of the sentence he
escaped from.
The sentence of rigorous imprisonment will be more severe than the imprisonment of
the simple nature.
The sentence on offender already sentenced for another offence
If a person has been previously convicted for a sentence and then is subsequently
convicted for another, then the person has to serve his former punishment first and
then will serve the punishment sentenced later. Or if the court orders that both
the punishment are to be served concurrently. The punishment could be imprisonment
or imprisonment for life. It is also to be noted that where a person who has been
sentenced to imprisonment by an order under Section 122 in default of furnishing
security is while undergoing such sentence, sentenced to imprisonment for an
offence committed prior to the making of such order, the latter sentence shall
commence immediately.
However, if a person is already sentenced to life imprisonment and then
subsequently is punished for a term or for life imprisonment, then the former
sentence would run concurrent to the latest imprisonment.
Period of detention undergone by the accused against the sentence of imprisonment
Where an accused is serving a sentence, other than the one on the default of
payment of fine, and the term of detention undergone by him during the
investigation and trial of the same case shall be set off against the term imposed
on him from such conviction. The person shall be liable only for the term of
imprisonment left if in case the sentence of imprisonment is given to him.
In case of a sentence given under Section 433A, such period of detention shall be
set off against fourteen years referred to in that Section.
But nothing in Section 426 and Section 427 shall be the reason to excuse any person
from the term he is sentenced to in his former or subsequent conviction.
When an award of imprisonment in default of payment of a fine is added to a
substantive sentence of imprisonment and the person undergoing the sentence is
after

its execution to undergo a further substantive sentence or substantive sentences

of imprisonment. In this case, the sentence accruing to the default of payment of
fine should be served by the person only after he has undergone the subsequent
sentences.
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Return of warrant on execution of sentence
When the sentence has been executed fully, the officer executing such a sentence
will have to return the warrant to the court which has issued it. The warrant that
is returned has to be undersigned by the respective officer. The method of
execution of the sentence must also be specified by the officer in charge.
Money ordered to be paid recoverable as a fine
Any money which is payable (other than fine) under the provision of this act, and
the method of recovery of such money is not expressly given in the Code, then it
shall be collected in the manner as if it is fine.
It is to be noted that Section 421 shall, in its application to an order under
Section 359, by virtue of this Section, be construed as if in the proviso to Sub-
Section (1) of Section 421, after the words and figures “under Section 357”, the
words and figures “or an order for payment of costs under Section 359” had been
inserted.
Constitutional provisions
The Constitution of India, vests a large amount of sovereign power in the President
and the Governor. Centre and the State are governed in the name of President and
Governor respectively. Under Article 72 of the Indian Constitution, the President
has the power to pardon, remit, suspend or commute any sentence.
Under Article 72, the President has the power to pardons, reprieves, respites or
remission of punishment or to suspend remit or commute the sentence of any person
convicted of any offence:

In cases where the punishment is given by the court-martial. The Governor’s power
to remit, suspend or commute the sentence under the laws of the State, shall be
given precedence.
In cases where the power of executive extends.
In cases where the punishment is a death sentence.
Similarly, under Article 161 of the Constitution of India, these powers are
conferred on the Governor of the States. The Governor can pardon, reprieve, respite
a punishment or suspend, remit or commute the sentence, which is given on the basis
of the laws prevalent in the State, to which the executive power of the State
extends.
The difference between the pardoning power of the President and that of the
Governor is that the Governor does not enjoy the power to grant pardon to a death
sentence.
However, this power of the President is not absolute and depends on the
consultation with the council of ministers. This is not present in the Constitution
but practically this process is followed. Further, the Constitution does not
provide for any mechanism to check the legality of the decision taken by the
President and the Governor while exercising their mercy power. However, in the case
of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway is provided for
judicial review of the mercy granting power of the President and the Governor to
rule out any sort of arbitrariness.
Suspension or remission of sentences
The suspension is the stay or postponement of the execution of the sentence. In
remission, the duration of the sentence is reduced, without changing the nature of
the sentence. Remission and suspension differ to a large extent. In remission, the
nature of the sentence is remained untouched, while the duration is reduced i.e.
the rest of the sentence need not be undergone. For example, a person sentenced for
a term of two years, his sentence is now reduced to one year. The effect of the
remission is that the prisoner is given a certain date on which he shall be
released and the eyes of the law he would be a free man. However, in case of breach
of any of the condition of remission, it will be cancelled and the offender has to
serve the entire term for which he was originally sentenced.
The procedure followed is given under Section 432 of CrPC, 1973. The government
would ask the opinion of the court which gave such a sentence. The court would
revert with proper records. The government can grant or reject the application for
remission and suspension if in its view all the conditions necessary for such a
grant are not fulfilled. the offender may if at large, be arrested by any police
officer without a warrant and is to undergo the unexpired portion of the sentence.
The power of remission is wholly an executive action. There is no law as such to
question the legality of this action, but the government should use this power
fairly and not in an

arbitrary manner. However, the court must consider the limitation provided under
Section 433A of the CrPC, 1973. The power of remission and suspension should not in
any way interfere with the conviction of the court, it should affect the execution
of the sentence.
Commutation of sentence
In contrast to Suspension and Remission, which only affect the duration of the
punishment without interfering with the nature of the punishment, Commutation, on
the other hand, changes the nature of the punishment and converts it into a less
severe form of punishment.
There is nothing to restrict the government to commutate a sentence, even if it is
as low as a fine. Under Section 433 of the CrPC, the appropriate government gets
the power to commutate the sentence in an appropriate case. Various sentences are
eligible for commutation, one of them is death sentence i.e.mercy plea.
Death sentence to any other punishment provided in the IPC.
Imprisonment for life to any other imprisonment not exceeding fourteen years or
fine.
Sentence of rigorous imprisonment for simpler imprisonment which the person has
been sentenced or a fine.
Sentence for a simple sentence to a fine.
Commutation of death sentence has always been in the controversy, it raises an
issue regarding the basic human rights of the accused and on the other hand the
impact of the grave crime on the society. Section 433 of the CrPC gives the power
to the government to commutate the death sentence to a simpler sentence.
Most of the convicts of the death sentence, get their sentence reduced to 14 years
of life imprisonment in accordance with the provisions of CrPC.
Restriction on powers of remission or commutation in certain cases
Section 433A of the CrPC puts a restriction on the power of the President and the
Governor that they can’t commutate the death sentence to less than 14 years of life
imprisonment. In absence of any order under Section 51 of the IPC or Section 433A
of the CrPC, the convicts are not released even after the expiry of 14 years of
imprisonment.

Moreover, remission can be granted under Section 432 of the CrPC in case of a
definite term of sentence. The power is to grant “additional” term of imprisonment
which is over and above the remission granted to convict under the jail manual or
statutory rules. In case of an indefinite sentence, like that of life imprisonment,
may remit or suspend the sentence of the person but not on the basis that such
imprisonment is arbitrary or on the assumption that it is for twenty years.
Concurrent power of the Central Government in case of death sentences
Under Section 434 of the CrPC, it is stated that the powers under Section 432 and
Section 433, which are given to the State government, can be exercised by the
Central government in case of a death sentence.
State government to act after consultation with the Central Government in certain
cases
Under Section 435 of the CrPC it is stated that the power given to the state
government to remit or commutate a sentence in an offence:
Which is investigated under the Delhi Special Police Establishment or by any other
agency which is constituted under any Central Act other than this Code.
Which involves misappropriation or destruction of, or damage to any property
belonging to the Central government.
Which was committed by the person who is working under the Central government and
was discharging his official duty.
Such offences, as mentioned above, shall not be discharged by the state government
except after the consultation of the central government. Moreover, no order of
remission, commutation, or suspension by the state government shall apply where the
executive power of the Central government also extends, or where the terms of
imprisonment of a person have to run concurrently. Such orders will have effect
only where the central government has passed the same sentence with regard to the
subject matter on which the executive power of the centre extends.
According to the 41st Report of the Law Commission of India, it was stated that
there are some matters on which the centre is vitally concerned although on those
subject matters the laws of the State government would apply. It is thus necessary
that the central government should have a say on those matters and the state
government should work only in consultation of the central government otherwise the
administration of law and justice would be very difficult for the central
government.

Conclusion
The sentence awarded by the judiciary to an offender can be remitted, suspended or
commutated by the executive action. The provisions of the Constitution and Criminal
Procedure Code, 1973, gives various powers to the President and the Governor to
alter the sentence awarded to the offender. This executive power has no legal check
but after the few judicial cases, a small window for the judicial review has been
available.
Remission in basic terms means to reduce the duration of the term of the sentence.
Suspension, on the other hand, means to postpone the sentence without changing its
duration. The above two do not interfere with the nature of the sentence.
Commutation, in contrast, changes the nature of the punishment and turns it into a
less severe one.
There are also various matters on which the state has to pass sentence in the
consultation of the Central Government as the latter is vitally concerned with
those subject matter. Under the CrPC, separate provisions are present for pregnant
women.