RIGHTS OF THE ACCUSED AND VICTIM

SECTION 273: Evidence to be taken in the Presence of Accused

● Section 273 of the Code of Criminal Procedure,1973 provides that the evidence should
be taken in the presence of the accused.
● This provision should not be followed only in rare situations like cases relating to the
rape of a minor woman. Section 299 of the Code of Criminal Procedure,1973 provides
the conditions to record evidence in the absence of the accused.

The doctrine of “Autrefois Convict” and “Autrefois Acquit”

● The principle autrefois convict means ‘formerly convicted’ and the principle autrefois
acquit means ‘formerly acquitted’.
● The same principle is also accepted by the various Australian courts by the name
“issue-estoppel”.
● Autrefois convict is a defence plea that is followed and accepted by the common law
countries. This plea ensures that no person is convicted twice for the same offence.
● This plea will stop the entire proceeding. The concept of double jeopardy is also
prevented by our Indian Constitution.
● Section 300 of the Code of Criminal Procedure,1973 provides that the person once
convicted or acquitted not to be tried for the same offence.
● There are certain exceptions to the above-mentioned rule in subsection (2) and (4) of
Section 300 of the Code of Criminal Procedure,1973.
● According to this section the person acquitted or convicted can be tried again if the prior
trial was not done by a competent court.
● The person acquitted or convicted can be tried again with the consent of the State
Government for any different offence for which a separate charge has been made
against the accused in the formal trial.

SECTION 303: RIGHT OF PERSON AGAINST WHOM PROCEEDINGS ARE INSTITUTED TO

BE DEFENDED
Any person accused of an offence before a Criminal Court, or against whom proceedings are
instituted under this Code, may of right be defended by a pleader of his choice.

● Section 304 of the Code of Criminal Procedure,1973 deals provides that it is the duty
of the State to provide legal assistance to an accused if the Court feels that the accused
has no sufficient means to appoint a pleader for his defence.
● The Court itself will appoint a pleader in that case at the expense of the State.
● This provision ensures that the trial is not biased as there is equal representation from
both sides.
● The High Court with the previous approval of the State Government makes rules under
various aspects for:
1. The mode of selecting pleaders for defence;
 2. The facilities to be allowed to such pleaders by the Courts;
3. The fee which is payable to such pleaders by the Government.

SECTION 305: Procedure when corporation or registered society is an accused:

● This section prescribes the procedure to be followed when a corporation or a registered
society is an accused in a criminal case.
● Sub-section (2) requires that when a corporation or a legistered society is the accused
person in an inquiry or trial, it should appoint a nominee to represent it.
● Where there is no nomination under Section 305 the person who is responsible for the
conduct of business of the company shall be liable for punishment.
● Where it is proved that the offence has been committed due to the negligent act or
omission of any director or manager of the company, he shall be liable for punishment.
Once the guilt of the company is proved it may be directed to point out the person on
whom liability is to be fixed.

SECTION 306: TENDER OF PARDON TO ACCOMPLICE

In order to get the testimony of anyone suspected of being directly or indirectly involved in or
privy to an offence covered by this section, the Chief Judicial Magistrate or a Metropolitan
Magistrate at any stage of the investigation or inquiry into, or trial of, the offence, and the
Magistrate of the first class investigating or trying the offence, at any stage of the investigation
or trial, may offer a pardon to that person on the condition that he or she testify.

SECTION 310: LOCAL INSPECTION

(1) Any judge or magistrate may, at any point in an investigation, trial, or other proceeding,
after giving proper notice to the parties, visit and inspect any place where an offence is
said to have been committed or any other place he thinks is important to see in order to
understand the evidence presented at such an investigation or trial, and he or she must
make a note of any relevant facts seen during such an inspection as soon as possible.
(2) This note will be part of the case file, and if the lawyer, complainant, accused, or anyone
else involved in the case,

SECTION 311 A: Power of Magistrate to order person to give specimen signature or

handwriting
● If a Magistrate of the first class is sure that it would be best for an investigation or
proceeding under this Code for any person, including an accused person, to give
specimen signatures or handwriting, he can make an order to that effect.
● The person to whom the order applies must then be brought in or show up at the time
and place specified in the order and give his specimen signatures or handwriting.
● Subject to any rules made by the State Government, any Criminal Court may, if it thinks
it's right, order the Government to pay the reasonable costs of any complainant or
witness who shows up for an investigation, trial, or other action under this Code.
SECTION 312: EXPENSES AND COMPLAINTS OF WITNESSES
Subject to any rules made by the State Government, any Criminal Court may, if it thinks it's
right, order the Government to pay the reasonable costs of any complainant or witness who
shows up for an investigation, trial, or other action under this Code.

SECTION 313: POWER TO EXAMINE THE ACCUSED

(1) In every investigation or trial, to give the accused a chance to explain things that show up in
the proof against him, the Court:
a) may ask the accused any questions it thinks are important at any time without giving him
advance notice;
(b) shall, after the prosecution's witnesses have been questioned and before he is called on to
defend himself, ask him about the case in general: In a summons case, if the court decides not
to have the accused show up in person, it can also decide not to have him examined under
clause (b).
(2) No oath will be given to the accused person when he is being questioned under section 1.
(3) The accused can't be punished if he or she refuses to answer these questions or lies in
response to them.
(4) The accused's answers can be used in the investigation or trial, and they can be used as
evidence for or against him in any other investigation or trial for any other crime that his answers
might suggest he did.

SECTION 316: NO INFLUENCE TO USED TO INDUCE DISCLOSURE

Except as stated in sections 306 and 307, no offer, threat, or other form of pressure may be
used on an accused person to get him to tell the truth or keep something from the truth that he
knows.

SECTION 317: Provision for inquiries and trial being held in the absence of accused in
certain cases.
(1) If the Judge or Magistrate is convinced, for reasons that must be written down, that the
accused's personal attendance before the Court is not necessary in the interests of
justice or that the accused repeatedly disrupts the proceedings in Court, the Judge or
Magistrate may, if the accused is represented by a pleader, do away with his presence
and continue with the inquiry or trial without him, and may, at any stage.
(2) If the accused doesn't have a lawyer or if the judge or magistrate thinks he needs to be
there in person, he can, if he thinks it's best and he writes down his reasons, either
postpone the inquiry or trial or order that the accused's case be heard or tried separately.

● The Section deals with additional prosecution.

● It mandates the court to add any such person to the trial with the accused against whom
strong evidence has been presented.
● Such a person against whom sufficient evidence has been produced and the court is
satisfied as to his involvement in the case becomes an accused on the date when the
order has been passed by the court.
 ● The magistrate has ample powers at any stage of inquiry or trial to take cognizance and
add any such person against whom prima facie evidence has been given.
● Even if the complaint has been dismissed under Section 203 CrPC after the inquiry is
completed, it does not bar the court from initiating the proceedings under section 319.

SECTION 321: WITHDRAWAL FOR PROSECTUTION

● Section 321 of Criminal Procedure Code, 1973 deals with the aspect of withdrawal from
prosecution by the Public Prosecutor.
● This section corresponds to S. 494 of the old Cr.P.C.
● The new section is different from the archaic one in mainly two aspects.
● One, in earlier section, the phrase in-charge of a case was not present which led any
public prosecutor to withdraw a case.
● In the new section, only the Public prosecutor or Assistant public prosecutor who is
in-charge of the particular case may apply for withdrawal from prosecution.
● Second, in the new section, clauses (i) to (iv) have been added to require permission
from the Central government for the Public prosecutor to withdraw from prosecution in
cases related with the Central government.

SECTION 327: COURT TO BE OPEN

(1) The place in which any criminal Court is held for the purpose of inquiring into or trying any
offence shall be deemed to be an open Court to which the public generally may have access, so
far as the same can conveniently contain them:

Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any
inquiry into, or trial of, any particular case, that the public generally, or any particular person,
shall not have access to, or be or remain in, the room building used by the Court.

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an
offence under section 376, section 376A, section 376AB, section 376B, section 376C or section
376D, section 376DA, section 376DB of the Indian Penal Code (45 of 1860) shall be conducted
in camera:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the
parties, allow any particular person to have access to, or be or remain in, the room or building
used by the Court.

Provided further that in camera trial shall be conducted as far as practicable by a woman Judge
or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person
to print or publish any matter in relation to any such proceedings, except with the previous
permission of the Court;
Provided that the ban on printing or publication of trial proceedings in relation to an offence of
rape may be lifted, subject to maintaining confidentiality of name and address of the parties.

VICTIM RIGHTS
SECTION 357: ORDER TO PAY COMPENSATION
(1) When a court gives a fine sentence or a sentence that includes a fine, like a death
sentence, the court can order that all or part of the fine be used to:

(a) to pay for the costs of the case that were done right;

(b) in the payment of compensation to a person for a loss or damage caused by the crime, if
the court thinks that person can get compensation in a Civil Court;

(c) when someone is found guilty of causing the death of another person or helping them do
so, to pay compensation to the people who have the right under the Fatal Accidents Act
of 1855 (13 of 1855) to get money from the person who was found guilty for the loss they
suffered because of the death;

(d) If a person is found guilty of a crime like theft, criminal misappropriation, criminal breach
of trust, or cheating, or if they are found to have dishonestly received or kept stolen
property or helped get rid of stolen property even though they knew or had reason to
believe it was stolen, they must make up for the loss to any honest buyer of that property
if the property is returned to the rightful owner.

2. If the fine is given in a case that can be appealed, no payment of this kind can be made
before the time for filing an appeal has passed or, if an appeal is filed, before the appeal has
been decided.

(3) When a court gives a sentence that doesn't include a fine, the court can order the accused
person to pay the person who was hurt or lost something because of the act for which the
accused person was sentenced. The amount that the accused person has to pay can be stated
in the order.

(4) An order under this section can also be made by an appeals court or the High Court or Court
of Session when they are using their amendment powers.

(5) If the same thing comes up in a civil case again, the Court will take into account any money
paid or returned as compensation under this section when deciding how much money to give as
compensation.

SECTION 357 A: VICTIM COMPENSATION SCHEME

● Every State Government will work with the Central Government to come up with a plan
for giving money to the victim or his children who have been hurt or lost something
because of a crime and need to get better.
 ● Whenever the court recommends compensation, the District Legal Service Authority or
the State Legal Service Authority, as the case may be, will decide the amount of
compensation to be given under the scheme mentioned in sub-section (1).
● If the trial Court, at the end of the trial, is convinced that the compensation given under
section 357 is not enough for rehabilitation, or if the cases end in an acquittal or
discharge, and if the State Legal Service Authority or the District Legal Service Authority
agrees, then the State Legal Service Authority will
● If the offender can't be found or recognised, but the victim can, and there's no trial, the
victim or his dependents can ask for compensation from the State or the District Legal
Services Authority.
● When the State or the District Legal Services Authority gets these suggestions or a
request under subsection (4), they have to do a proper investigation and decide what
kind of compensation is fair. They have to do this within two months.
● To ease the victim's pain, the State or the District Legal Services Authority, as the case
may be, may order that free first aid or medical care be given right away on the
certificate of a police officer not below the rank of the officer in charge of the police
station or a Magistrate of the area in question, or any other temporary relief that the right
authority thinks is necessary.

SECTION 357 B: COMPENSATION TO BE IN ADDITION TO FINE UNDER SECTION 326 A

OR SECTION 376 D OF IPC
The Indian Penal Code says that the victim must also be given a fine under sections 326A,
376AB, 376D, 376DA, and 376DB. The State Government must also pay the victim
compensation under section 357A.

SECTION 357 C: TREATMENT OF VICTIMS

All hospitals, public or private, run by the Central Government, the State Government, local
bodies, or anyone else, must give victims of crimes covered by sections 326A, 376, 376A,
376AB, 376B, 376C, 376D, 376DA, 376DB, or 376E of the Indian Penal Code (45 of 1860) free
first aid and medical care right away. They must also report the crime to the police right away.

SECTION 372: NO APPEAL TO LIE

No one can challenge a Criminal Court's decision or order unless it's allowed by this Code or
another law in effect at the time.
 JUDGMENT (SECTIONS: 353, 354, 355, 361-365)

● Judgement is a basic term used in our daily lives. Generally, it means analysing a certain
situation and forming a notion thereafter.
● In a legal sense, judgement is the decision given by the Court, after hearing both sides,
it contains reasons for reaching such a conclusion.

Form and contents of the judgment under Section 353

❖ In a judgement Ratio decidendi and Obiter dicta form an integral part. Ratio decidendi is
the binding statement in judgement and Obiter Dicta is the “by the way” remarks
delivered by the judge which is not necessary to the case at hand.
❖ 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 absolutely 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 offence committed by the accused and the intervening
circumstances which led to the commission of this offence.
● Participation of the accused as the principal perpetrator, or accomplice or accessory.
● The penalty that is imposed on the accused.

Language and contents of judgment Section 354

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 offence should be specified and the reason for the same should be given for the
same. The offence so 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 offence for which he was 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 is not certain as to under which
Section the offence is committed or under which part of the Section, the judge should specify
the same in the judgement and should pass orders in both the alternate situations.

3. The judgement shall furnish a proper reason for the conviction if it is a sentence for a term of
life imprisonment and in case of death sentence the special reason has to be given.
Judgment given by Metropolitan Magistrate under Section 355
❖ 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 where the appeal lies from the final order, a brief statement of reasons for the
decision.

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 special reasons for awarding the punishment which is below the
minimum prescribed under the relevant laws of the country.
● The omission to record the special 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 the ambit of
the field.
● Moreover, Section 360 would cease to have any force in the States or parts where the
Probation of Offenders Act is in force.

Court not to alter judgment under Section 362

Under Section 362, it is categorically mentioned that except otherwise provided in the Code, the
Court will not alter the Judgement or the order once signed by it to dispose of it, except to
correct any clerical or arithmetical errors.

Copy of judgment to be given to the accused and some other persons under Section 363

● Section 363 of the CrPC states that when the sentence of imprisonment is pronounced,
the guilty must be immediately, given the 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, would be
given to him on payment of the specified charges, or in special cases, as the Court shall
deem fit, will give it to him free of cost.
● Moreover, 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 judgement of the High Court shall
get the copy of the same after payment of specified prices and following of certain
conditions as ascertained by the High Court in the rules made by it.

Translation of judgment under Section 364

● Section 364 of the Code holds that the judgement needs to be filed along with the
proceedings.
● Moreover, if the judgement is recorded in the language that is different from the Court’s
language and the Court, the accused requires that the translation needs to be done in
the language of the Court, then such judgement needs to be translated.

Court of Session to send a copy of finding and sentence to District Magistrate under
Section 365
Under Section 365, it is stated that in cases where the proceedings are held in the Court of
Judicial Magistrate or Sessions Judge, the copy of all the findings and the sentence need to be
given to the District Magistrate, under whose local jurisdiction the trial is held.
 DEATH SENTENCE CONFORMATION (SECTIONS 366-371)
● 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.

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 CrPC requires 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.
 APPEAL (SECTIONS 372-376)

Kinds of Appeal Under Criminal Procedure Code

Various kinds of appeals provided under CrPC are:

Cases where No Appeal Lies

No appeal unless provided by law – S.372
■ Appeal is not a matter of right.
■ An aggrieved person can only appeal if the same provided by the law under some
statutory provision.

1. Appeal in Court of Session – Section 373 CrPC

An appeal may lie to the Court of Session against the order under:
● Section 117: Where a person has been ordered to give security for keeping the peace or
for good behaviour.
● Section 121: Where a person has been aggrieved by any order refusing to accept or
reject a surety.

2. Appeal From Convictions – Section 374 CrPC

1. While exercising extraordinary original criminal jurisdiction, if High Court passes an order of
conviction, an appeal shall lie to Supreme Court.
2. If Court of Session or Additional Court of Session passes the order of conviction during the
trial, an appeal shall lie to High Court.
3. If Court of Session or Additional Court of Session gives punishment of more than seven
years, the appeal shall lie to High Court.
4. Where a person is convicted by Assistant Court of Session, Metropolitan Magistrate Judicial
Magistrate I, Judicial Magistrate II, an appeal shall lie to Court of Session.
5. A person aggrieved under section 325, 360 of the Criminal Procedure Code can appeal to the
Court of Session.

Exception to Section 374 CrPC

Section 375 and section 376 of the Criminal Procedure Code are exceptions to sections
374 of the Criminal Procedure Code, elaborated as follows.

Section 375 CrPC – No Appeal in Certain Cases Where the Accused Pleads Guilty
If the accused pleads guilty at High Court and the court takes the plea on record and convicts
the person, then no appeal shall lie.
Where the accused pleads guilty at a court other than High Court, an appeal for the sentence is
allowed.
Appeal on sentence is allowed based on:
1. Extent.
2. Legality of the sentence.
Section 376 CrPC – No Appeal in Case of Petty Cases
No appeal shall lie in the case of petty cases. Petty cases differ from court to court. Following
are considered petty cases:
● In case of High Court- Imprisonment up to 6 months, fine of Rs 1000 or both.
● In case of Court of Session- Imprisonment up to 3 months, fine of Rs 200 or both.
● In case of Metropolitan Magistrate- Imprisonment up to 3 months, fine of Rs 200 or both.
● In case of Judicial Magistrate I- Fine of Rs 100.
● In case of Magistrate empowered under section 260 of the Criminal Procedure Code-
Fine up to Rs 200.
 REFERENCE/ REVISION (SECTIONS 395, 396, 397 & 401)

SECTION 395: REFERENCE TO HIGH COURT

1. Where a Court is satisfied that a case pending before it involves a question as to the
validity of any Act, Ordinance, or Regulation, or of any provision contained in an Act,
Ordinance, or Regulation, the determination of which is required for the disposition of the
case, and is of the opinion that such Act, Ordinance, Regulation, or provision is invalid or
inoperative, but has not been so declared by the High Court to which that Court is
subordinate, or by the Supreme Court, the Court shall state a case setting out its opinion
and the reasons therefore, and refer the same for the decision of the High Court.

2. A Court of Session or a Metropolitan Magistrate may, in any case pending before it or

him to which the provisions of Sub-Section (1) do not apply, submit any point of law
arising in the hearing of such case to the High Court for decision.

3. Any Court making a reference to the High Court under Subsection (1) or (2) may,
pending the High Court's decision, either commit the accused to jail or free him on bail to
attend when asked.

● Section 396: of Criminal Procedure Code deals with Disposal of case according to
the decision of High Court.
(1) When a question is sent to the High Court in this way, the High Court will make
whatever decision it thinks is best and send a copy of that decision to the court that sent
the question to the High Court. That court will then decide the case based on the High
Court's decision.

(2) The High Court can decide who will pay for the costs of the referral.

● Section 397: Calling for records to exercise powers of revision:

1. For the purposes of this subsection and Section 398, the Sessions Judge must always
be regarded as superior to all Magistrates, whether Executive or Judicial, or whether
exercising original or appellate authority.
2. The revisionary authority given by subsection (1) is not applicable to any interlocutory
orders made during any appeal, investigation, trial, or another proceeding.
3. After submitting an application under this section to either the High Court or the Sessions
Judge, the same individual may not submit another application to any one of them.

SECTION 401: HIGH COURT’S POWER OF REVISION

(1) The High Court may, at its own discretion, use any of the powers given to a Court of Appeal
by sections 386, 389, 390, and 391 or to a Court of Session by section 307 in any case where the
record of the case has been requested by the High Court or where it has come to its attention
in any other way. When the judges on the Court of revision are split down the middle, the case
is decided according to section 392.
(2) No order can be made under this section that hurts the accused or someone else unless the
accused has had a chance to be heard either in person or through a lawyer.

(3) Nothing in this section gives a High Court the right to change a finding of acquittal into a
finding of guilt.

(4) If this Code allows an appeal but no appeal is made, the person who could have appealed
cannot ask for a review.

(5) If an appeal can be made under this Code, but someone has asked the High Court to change
something, and the High Court agrees, If the High Court is sure that the request for a change
was made with the wrong idea that there was no way to appeal, and if it is necessary for justice
to do so, it may take the request for a change as an appeal petition and handle it as such.

TRANSFER OF CASES (SECTIONS 406-409)

Transfer of cases and appeals by the Supreme Court – Section 406 CrPC
● The power to transfer the cases to Supreme Court is conferred under section 406 of the
Criminal Procedure Code.
● The section gives the Supreme Court the power to transfer cases or/and appeals from
one High Court to another High Court.
● This power can be exercised by the Supreme Court whenever it seems necessary and
reasonable for justice.
● However, the Supreme Court can only act under the application of the Attorney-General
of India or the interested party (complainant, Public Prosecutor, accused, etc.).
● Note: The Supreme Court does not have the power to withdraw a case from a Special
Judge and transfer it to the High Court.

Transfer of cases and appeals by the High Court – Section 407 CrPC
● The power to transfer the cases to the High Court is given under section 407 of the
Criminal Procedure Code.
● The High Court can exercise this power under three conditions, when it is satisfied that:
1. A fair and impartial trial cannot be held in any criminal court that is subordinate to it.
2. Certain questions of law of unusual difficulty might arise.
3. An order is required by any provision of the Code or for the general convenience of
the parties or the witness involved or for the ends of the justice.
● The High Court can exercise this power on the report of the lower court or on the
application of a party interested.
● This power can also be exercised on its own initiative by the High Court.
● However, the application for the transfer of a case from one criminal court to another
criminal court in the same Session Division can be laid down before a High Court only if
it has been previously made to the Sessions Judge and was rejected by him.

Transfer of cases and appeals by the Sessions Judge – Section 408 CrPC
● Section 408 of the Criminal Procedure Code provides the power to the Sessions Judge
to transfer a case from one criminal court to another criminal court in his sessions
division.
● Whenever it seems reasonable for the ends of the justice, the Sessions Judge can act
as provided under this section.
● The Sessions Judge can exercise this power either on the instance of the report of the
lower court or on the application of the party interested or on its own.

Withdrawal of cases and appeals by Sessions Judges – Section 409 CrPC

● The Sessions Judge also has the power to withdraw a case or appeal which he has
transferred to any Assistant Sessions Judge or Chief Magistrate subordinate to him.
● The provision related to this is given under section 409 of the Criminal Procedure Code.
● However, a Sessions Judge can act accordingly only before the trial of the case or
hearing of the appeal has begun.
● There can be no withdrawal of a case once the trial or hearing has started in the
transferee court.
 ● Note: Section 409 of CrPC does not relate to the cases which are originally filed in the
court of Chief Judicial Magistrate or Sub-Divisional Judicial Magistrate.

CHAPTER 32 OF CrPC
Section 413 – Execution of order passed under section 368
When the High Court is asked to confirm a death sentence, the case is sent to the Court of
Session. When the Court of Session gets the confirmation order or another order from the High
Court, it must carry out the order by issuing a warrant or taking other steps as needed.

Section 414 – Execution of sentence of death passed by High Court

When the High Court hands down a death sentence in an appeal or a retrial, the Court of
Session must issue a warrant to carry out the sentence as soon as it gets the order from the
High Court.

Section 415 – Postponement of execution of sentence of death in case of appeal to

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.

Section 416 – Postponement of capital sentence on 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.

Section 421 – Warrant for levy of fine

● 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.

Section 422 – Effect of such warrant

A warrant issued under clause (a) of sub-section (1) of section 421 by any Court may be
executed within the local jurisdiction of such Court, and it shall authorise the attachment and
sale of any such property outside such jurisdiction, when it is endorsed by the District Magistrate
within whose local jurisdiction such property is found.

Section 423 – Warrant for levy of fine issued by a Court in any territory to which this
Code does not extend
Even if this Code or another law says something different, if a criminal court in a territory where
this Code doesn't apply orders a person to pay a fine and sends a warrant to the Collector of a
district in a territory where this Code does apply, telling him to get the money as if it were an
arrear of land revenue, that warrant is the same as a warrant for an arrear of land revenue.

Section 424 – Suspension of execution of sentence of imprisonment

Section 425 – Who may issue 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.

Section 426 – Sentence on escaped convict when to take effect

(1) If a convicted fugitive is given a sentence of death, life in jail, or a fine under this Code, the
sentence goes into effect right away, unless one of the other rules below says otherwise.

(2) When a term of imprisonment is given to an escaped convict under this Code:
(a) if the new sentence is harsher than the one the convict was serving when he escaped, the
new sentence takes effect right away;
(b) if the new sentence is not harsher than the one the convict was serving when he escaped,
the new sentence takes effect after he has been locked up for a period equal to the one he was
serving when he escaped.
(3) For the purposes of subsection (2), a sentence of rigorous imprisonment is seen as more
serious than a sentence of simple imprisonment.
Section 427 – Sentence on offender already sentenced for another offence
When a person who is already serving a sentence of life in prison gets a second conviction and
is sentenced to prison for a term or life in prison, the new punishment runs at the same time as
the first one.

Section 428 – Period of detention undergone by the accused to be set off against the
sentence of imprisonment
When an accused person is found guilty and sentenced to jail for a certain amount of time, but
not for failing to pay a fine, any time he spent in jail during the investigation, inquiry, or trial of the
same case and before the date of his conviction will be subtracted from the time he has to
spend in jail because of his conviction. This means that he or she will only have to go to jail for a
certain amount of time.

Section 429 – Saving

(1) Nothing in sections 426 or 427 can be used to let a person off the hook for any part of the
sentence he or she is supposed to get because of a previous or later conviction.

(2) If an award of imprisonment for not paying a fine is attached to a substantive sentence of
imprisonment and the person serving the sentence will then serve another substantive sentence
or sentences of imprisonment, the award of imprisonment for not paying the fine will not take
effect until the person has served the additional substantive sentences.

Section 430 – Return of warrant on execution of sentence

When a sentence has been fully carried out, the officer in charge of carrying it out must return
the warrant to the court that issued it, along with a note that says how the punishment was
carried out.

Section 431 – Money ordered to be paid recoverable as a fine

Any money (other than a fine) that is owed because of an order made under this Code, and for
which there is no other clear way to get it back, can be taken back the same way a fine would
be: As a result of this section, section 421 will be interpreted as if the words "under section 357"
were replaced with "or an order for payment of costs under section 359" when it comes to an
order under section 359. E.- Putting lines on hold, letting them go, or exchanging them

Section 432 – Power to suspend or remit 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.

Section 433 – Power to commute 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.
Section 434 – Concurrent power of 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.

Section 435 – State Government to act after consultation with 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.