MODULE 1

Introduction – The Code of Criminal Procedure, 1973 (CrPC)

Law can be divided into two kinds:

 Substantive Law :- Defines and regulates the power rights, duties and liabilities of the
parties.
 Procedural Law :- deals with methods and procedures to enforce the substantive law

The Code of Criminal Procedure is divided into:-

 37 Chapters
 484 Sections
 Two Schedules

Code also provide for

 Prevention of offences (106-124, 129-132)

 Maintenance of wives, children and parents (S.125)
 Public Nuisance (133-143)

Importance of Code

It is the procedure that spells difference between Rule of Law and Rule by Whim and caprice.

The nature of code is that greater number of persons are involved

It is more constantly used and affects a greater number of person than any other law

It is complimentary to substantive law, therefore failure of this would affect substantive law
as well

Object of the Code

Machinery for the punishment of offender under substantive criminal law.

Code contain elaborate procedure to be followed in every investigation, enquiry and trial.

Extent of the Code

It is applicable –
  To the whole of India
 Provided that the provisions of this code, other than those relating to chapters VIII, X
and XI thereof, shall not apply:
 To the state of Nagaland
 To the tribal areas of Assam
 But the concerned state government may, by notification, apply such provisions or
any of them to the whole or part of the state of Nagaland or such tribal areas, as the
case may be specified in the notification.

Scope of the Code

 For administering criminal law in India

 Machinery for the investigation of the crime, apprehension of suspected criminals,
collection of evidence, determination of guilt or innocence of the accused person, and
the determination of punishment of the guilty
 Public Nuisance
 Prevention of offences
 Maintenance of wife and children

Purpose of the Code

 To ensure a fair trial where none of the rights of the accused are compromised nor are
they unjustifiably favoured.
 Code envisages both warrant and summons to procure the attendance of the persons
concerned.
 To ensure that the judge concerned hears all parties who are relevant to the trial.

Code how far exhaustive

 Tried to make exhaustive and complete in every respect.

 If any situation is found out of the scope of the code, then code only has provided
inherent powers to court to meet end of justice
Only High Court has this power
Subordinate courts do not have these powers

Definitions ( Section 2)

1. Offence (section 2(n))

"offence" means any act or omission made punishable by any law for the time being in force
and includes any act in respect of which a complaint may be made under section 20 of the
Cattle-trespass Act, 1871 ( 1 of 1871)
The word offense is derived from a Latin word “offendere”, which means to strike again and
is considered as an evil act. In terms of law it is an act which is punishable by law. Under
Indian criminal law, there are two definitions provided for the offence. Under section 40 of
Indian penal Code, “offense” denotes a thing made punishable by this Code. The relationship
between crime and offense is that offense is included in crime therefore offense is narrower
than crime.

Depending on the nature and gravity of an offence's if they can be classified under any of the
following heads:

 Bailable and non-bailable offence

 Cognizable and non-cognizable offence
 Compoundable and non-compundable offence

2. BAILABLE OFFENCE AND NON-BAILABLE OFFENCE (section 2(a))

A bailable offence is one, in which, bail is a matter of right, and non-bailable offence is one,
in which granting of bail is discretion of the court. In case of bailable offence, it may be
either given by a police officer who is having the custody of Accused or by the court. The
accused may be released on bail, on executing a bond, known as "bail bond", with or without
furnishing sureties. The "bail Bond" may contain certain terms and conditions. Such as:

The accused will not leave the territorial jurisdiction of the state without permission of court
or police officer. The Accused shall give his presence before police officer every time; he is
required to do so. The Accused will not tamper with any evidence whatsoever, considered by
police in the investigation.

EXAMPLES OF BAILABLE OFFENCE

Although even in case of bailable offence, the bail may be refused, if credit of the accused is
doubtful. However following are some offences which are classified as "Bailable offence" by
the code itself:

 Being a member of an unlawful Assembly Rioting,

 armed with deadly weapon Public servant disobeying a direction of the law with intent
to cause injury to any person. Etc.
NON BAILABLE OFFENCE

A non-bailable offence is one in which the grant of Bail is not a matter of right. Here the
Accused will have to apply to the court, and it will be the discretion of the court to grant Bail
or not.
3. COGNIZABLE Section 2(c ) AND NON COGNIZABLE OFFENCE Section 2(l)

Offences can also be classified on the basis of "Cognizable offence", and "Non-cognizable"
offence.

COGNIZABLE OFFENCE Section 2(c )

Cognizable offences are those where a police officer can arrest without warrant. And such
cases, after arrest has been made, the accused will be produced before a magistrate, and he
may require the police officer to investigate the matter. Cognizable offences are both
bailable, and non-bailable.

EXAMPLES OF COGNIZABLE OFFENCES ARE

 Offences of waging or attempting to wage war, or abetting the waging of war against
the government of India.
 Wearing the dress or carrying any token used by a soldier, sailor or airman with intent
that it may be believed that he is such a soldier, sailor or airman.
 Rioting armed with deadly weapon.
 Hiring, engaging or employing person to take part in an unlawful assembly or taking
part in self.
 Being or expecting to be a public servant, and taking, and taking a gratification other
than legal remuneration in respect of an official act.etc
NON- COGNIZABLE OFFENCE Section 2(l)

Non cognizable offences are those, where a police officer cannot arrest without a warrant.

EXAMPLES OF NON-COGNIZABLE OFFENCES ARE

Following are some examples of non-cognizable offences.

 Owner or occupier of land not giving information of riot etc.

 A public servant disobeying a direction of the law with intent to cause injury to any
person.
 Fraudulent use of false instrument for weighting.
 Dishonest misappropriation of movable property, or converting it to one's own use.
etc
COMPOUNDABLE AND NON COMPOUNDABLE OFFENCES

Compoundable offences are those offences where, the complainant (one who has filed the
case, i.e. the victim), enter into a compromise, and agrees to have the charges dropped against
the accused. However such a compromise, should be a "Bonafide," and not for any
consideration to which the complainant is not entitled to.
There are some offences, which cannot be compounded. They can only be quashed. The
reason for this is, because the nature of offence is so grave and criminal, that the Accused
cannot be allowed to go scot-free. Here, in these types of cases generally, it is the "state", i.e.
police, who has filed the case, and hence the question of complainant entering into
compromise does not arise. All those offences, which are not mentioned in the list under
section 320 of CrPc, are non-compoundable offences.

4. COMPLAINT Section 2(d)

The first step for initiation of any Criminal case is the complaint. The victim is called a
complainant, and complainant should lodge his complaint to the police station of that area,
where the offence has been committed, or where he resides. A complaint can be on behalf of
the victim also. Generally, the complaint should be lodged within 24 hour of the commission
of offence. However, the limitation time is different for some offences. On receipt of such
information, the concerned police officer shall record the information in writing and the
person giving information shall sign it. (Mohd Yusuf v. Afaq jahan AIR 2006 SC 705)

IN CASE OF NON COGNIZABLE OFFENCE

In case of receipt of information pertaining to Non-Cognizable offence the police officer will
have to take permission of the Magistrate. The Magistrate may either quash the information
or grant power to investigate. On receipt of orders to investigate from the Magistrate, the
police officer shall start the investigation.

IN CASE OF COGNIZABLE OFFENCE

In case of information received, in any cognizable offence, the Police officer shall/can start
the investigation without any permission/order from the Magistrate.

5. INVESTIGATION (Section 2(h))

“Investigation” includes all the proceedings under this Code for the collection of evidence
conducted by a police officer or by any person (other than a Magistrate) who is authorised by
a Magistrate in this behalf.

The investigation in respect of cognizable offence and order to investigate in non-cognizable

offence shall commence on the same line. The only difference is that, in case of cognizable
offence, the police officer can arrest without warrant, during investigation.
In case of non-Cognizable offence, the police officer will have to apply for warrant from
Magistrate, for making any arrest.

During the course of investigation the Police Officer may acquire any other person, to appear,
and be examined as witness. Any such statements made by the witness, including the
complainant, shall be recorded in writing. Such statements, which are recorded, should not be
signed by the person making a statement, and such statements, shall only be used for the
purpose of further investigation. Also, these statements can be used as evidence, in trial, only
with the permission of the magistrate.

6. Judicial Proceeding (Section 2(i))

“Judicial proceeding” includes any proceeding in the course of which evidence is or may be
legally taken on oath.

It includes any proceeding in the course of which evidence is or may be legally taken oath.
The term judicial proceeding includes inquiry and trial but not investigation.

7. Summon case (Section 2(w)) and warrant case (section 2(x))

“summons-case” means a case relating to an offence, and not being a warrant-case; “warrant-
case” means a case relating to an offence punishable with death, imprisonment for life or
imprisonment for a term exceeding two years.

Those cases which are punishable with imprisonment for two year or less are summons cases,
the rest are all warrant cases. Thus, division is bases on punishment which can be awarded.
The procedure for the trial of summons cases is provided by Chapter XX and for warrant
cases by Chapter XIX of the code.

8. Victim (Section 2(wa))

“Victim” means a person who has suffered any loss or injury caused by reason of the act
omission for which the accused person has been charged and the expression "victim"
includes his or her guardian or legal heir.

In reference of a matter to Full Bench concerning locus standi of private parties to maintain
appeals by virtue of the proviso to Section 372 CrPC. The Court overruled its previous view
decided in Chattar Singh v. Subhash 2011 SCC OnLine Del 81 : (2011) 123 DRJ 257 (DB)
wherein, it was held that the appellant being a Class II heir would not inherit anything from
his deceased son. Thus, would not fall within the expression „legal heir‟ in the light of
Section 2(wa) and hence he is not entitled to prefer an appeal by virtue of proviso attached
to Section 372 of CrPC .
Hierarchy of Criminal Courts

The hierarchy of the Criminal Courts in India is as follows

The Supreme Court of India – The Supreme Court of India, being the apex court of India,
was established under Article 124 of Part V and Chapter IV of the Constitution of India.

The High Courts of India– The high courts are at the second level of the hierarchy. They
are governed by Article 141 of the Constitution of India and are bound by the judgment of the
Apex Court.

Lower Courts of India have been classified as follows.

Metropolitan Courts

 Sessions Court
 Chief Metropolitan Magistrate
 First Class Metropolitan Magistrate

District Courts

 Sessions Court
 First Class Judicial Magistrate (JMIC)
 Second Class Judicial Magistrate (JMIIC)
 Executive Magistrate

Courts of Session

As per Section 9 of CrPc, the court is established by the State Government for every session
Division. The court is presided over by a Judge, appointed by the High Court of that
particular State. The High Court may also appoint Additional Sessions Judges and Assistant
Sessions Judges in this court. It has the power to impose any sentence including capital
punishment.

Courts of Judicial Magistrates

Section 11 of CrPc states that in every district (not being a metropolitan area), there shall be
established as many Courts of Judicial Magistrates of the first class and of the second class
and at such places, as the State Government may after consultation with the High Court, by
notification specify. Courts of Judicial Magistrate of First Class are at the second lowest level
of the Criminal Court structure in India. According to Section 15 of the CrPC, a Judicial
Magistrate is under the general control of the Sessions Judge and is subordinate to the Chief
Judicial Magistrate. In terms of Section 29 of the CrPC, a Judicial Magistrate of First Class
may pass a sentence of imprisonment for a term not exceeding three years, or of fine not
exceeding five thousand rupees or of both.
Chief Judicial Magistrate and Additional Chief Judicial Magistrate, etc.

In every district (not being a metropolitan area), the High Court shall appoint a Judicial
Magistrate of the First Class to be the Chief Judicial Magistrate. A Chief Judicial Magistrate
may impose a sentence except (a) sentence of death, (b) imprisonment of life, or (c)
imprisonment for a term exceeding seven years. A Chief Judicial Magistrate shall be
subordinate to the Sessions Judge; and every other Judicial Magistrate shall, subject to the
general control of the Sessions Judge, be subordinate to the Chief Judicial Magistrate.

Metropolitan Magistrates

The Courts of Metropolitan Magistrates were created by Section 16 of the Criminal

Procedure Code. The Court of Chief Metropolitan Magistrate and those of The Additional
Chief Metropolitan Magistrates were created by Section 17 of the Code. Section 18 of the
Code also provided for Special Metropolitan Magistrates. The towns having population
exceeding one million could be declared as Metropolitan Areas. A Metropolitan magistrate is
under the general control of the Sessions Judge and is subordinate to the Chief Metropolitan
Magistrate.

Executive Magistrates

In every district and in every metropolitan area, the State Government may appoint as many
persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the
District Magistrate. The State Government may appoint any Executive Magistrate to be an
Additional District Magistrate and such Magistrate shall have such of the powers of a District
Magistrate under this Code or under any other law for the time being in force as may be
directed by the State Government.

Special Executive Magistrates

Under Section 21 of the CrPC, the State Government may appoint, Executive Magistrates, to
be known as Special Executive Magistrates, for particular areas or for the performance of
particular functions and confer on such Special Executive Magistrates such of the powers as
are conferrable under this Code on Executive Magistrates, as it may deem fit.
 The Supreme Court

The High Court

Session Court( Session Judge, Additional Session Judge) (S. 9)

Assistance Session Judge Chief Metropolitan Magistrate Chief Judicial Magistrate

(Section 10) ( Section 17)
(Section12)

Additional Chief Metropolotan Magistrate

(Section 17)

Metropolitan Magistrate Special Metropolitan Magistrate(S.18)

(Section 16) (Additional Metropolitan Magistrate

Sub-divisional Magistrate
(Section 20)

Judicial Magistrate of First Class (S.11)

Special Judicial Magistrate of First Class(S. 13)

Judicial Magistrate of Second Class (S. 11)

Special Judicial Magistrate of second Class( S. 13)

Functionaries of the Court

1. Public Prosecutor

2. Police

3. Defence Counsel

4. Prison Authorities

Some links for self study

 https://www.legalbites.in/law-notes-crpc-notes-constitution-of-criminal-
courts/#:~:text=Classes%20of%20Criminal%20Courts,-
Apart%20from%20the&text=The%20judge%20of%20the%20Sessions,Metropolitan
%20Magistrate%20and%20metropolitan%20magistrate.
 https://youtu.be/xuDCTsoWrIE