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Criminal Procedure Code - Lecture Notes

Criminal procedural code (Karnataka State Law University)

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CRIMINAL PROCEDURE CODE

UNIT – I
INTRODUCTORY AND PRE – TRIAL PROCESS

1.1 Meaning of procedure

The organization of the functionaries under the Code; their duties, functions and
powers; First Information Report, Complaint; Arrest; Types of trial and Features of a fair trial.

INTRODUCTION

Laws are usually classified into two categories;

1) Substantive Law;
2) Procedural law.

Substantive law determines the rights and liabilities of the parties, while Procedural law
lays down the practice and procedure enforcement of those rights and liabilities. So far as
administration of criminal justice is concerned, the Indian Penal Code is the substantive law. It
defines various offences and also prescribes punishment for them. Likewise, Dowry
Prohibition Act, Prevention of Food Adulteration Act, Prevention of Corruption Act etc., is
substantive laws. The Code of Criminal Procedure, on the other hand, like Evidence Act,
Limitation Act, etc, is procedural law.

Historical Background

Prior to 1882, there was uniform Code of Criminal Procedure for the whole of British
India. For the first time in 1882, the Code of Criminal Procedure was enacted for the whole of
India in the presidency towns and in the mofussil, which was replaced by the Code of Criminal
Procedure, 1898. The Code of 1898 underwent radical changes by Acts of 1923 and 1955. The
final comprehensive report was submitted by the Law Commission in 1969 making detailed
recommendations.

The recommendations of the Commission were examined carefully by the Government

in the light of the following basic and fundamental considerations;
(i) An accused person should get a fair trial in accordance with the accepted
principles of natural justice;

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(ii) Every effect should be made to avoid delay in investigation and trial which is
harmful not only to the individuals involved but also to the society;
(iii) The procedure should not be complicated and should, to the utmost extent
possible, ensure fair deal to the poorer sections of the community.

Object :
As stated above, the Code of Criminal procedure lays down procedure for
administration and enforcement of substantive criminal law. It is a procedural law and like all
procedural laws, is designed to further the ends of justice and not to frustrate them by
encouraging endless technicalities. The principal object of the Code is to ensure that an
accused gets full and fair trial in accordance with the well established principles of law that
accord with our notions of natural justice.

Importance of procedural law :

Though substantive laws determine rights and liabilities of parties and are very
important, value and use of procedural laws cannot be under-estimated. Criminal justice
system can be made effective by enacting proper substantive laws and by implementing them
efficiently. The efficacy of substantive law largely depends upon effective implementation of
procedural law. Unless the procedural law is simple, expeditious and inexpensive, substantive
laws, however good efficient, are bound to fail in achieving its goal.

1.2 The Functionaries under the Code :

The functionaries exercising powers and discharging duties under the Criminal
Procedure Code are :

a) The police,
b) The prosecutors,
c) Defence Counsels,
d) Magistrates, and judges of higher courts,
e) The Prison authorities and Correctional Services Personnel

Amongst these the role of the magistrate and courts is pivotal; the other functionaries
are, in a way, accessories only. It is there, expedient to consider first, the constitution and
hierarchy of the criminal courts, their territorial jurisdictions.

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Territorial Divisions {Sec. 1 (2), ; 7 and 8} India, States, Sessions Divisions, Districts,
Sub-divisions.

1.3 Powers of Criminal Courts :

Section 26 to 35 deals with jurisdiction and powers of criminal courts offences under
the I P C can be tried by the High Court or the Court of Session or any other court having
jurisdiction to try them.

Section 28 and 29 prescribe the extent of punishment which can be imposed by various
criminal courts. Power to impose different sentence by different courts may be summarized
thus:
Powers of Various Criminal Courts

Sl. Court Maximum sentence which can be imposed

No
1 Supreme Court Any sentence authorized by law
2 High Court Any sentence authorized by law
3 Sessions Judge, Additional Sessions Any sentence authorized by law, Sentence of
Judge death, however, is subject to confirmation by
High Court.
4 Assistant Sessions Judge Imprisonment up to ten years and or fine.
5 Chief Judicial Imprisonment up to ten years and or fine.
6 Chief Metropolitan Magistrate Imprisonment up to ten years and or fine.
7 Judicial Magistrate Class-I Imprisonment up to three years and or fine
up to Rs. 10,000/-
8 Metropolitan Magistrate Imprisonment up to three years and or fine
up to Rs. 10,000/-
9 Judicial Magistrate Class-II Imprisonment up to one years and or fine up
to Rs. 5,000/-
10 Special Judicial Magistrate Imprisonment up to three years and or fine
up to Rs. 10,000/-

COMPLAINT

1.4 Meaning :

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Complaint means any allegation made orally or in writing to a magistrate, with a view
to his taking action under the Code, that some person whether known to unknown has
committed an offence. Complaint, however, does not include a police report.

Essentials :

A complaint in a criminal case is like a plaint in a civil suit. Filing of complaint is one of
the important modes by which a magistrate can take cognizance of an offence. Before an
accusation can be called a complaint.

The following requirements must be satisfied;

(i) It may be made by a magistrate;

(ii) It must be made with a view that the magistrate may take action on it;
(iii) It must contain an allegation that some person, known or unknown, has
committed an offence;
(iv) It must not be a police report.

Ambit and Scope:

The expression “complaint” is very wide. It includes even an oral allegation. What is
necessary is that there must be an allegation prima facie disclosing commission of offence by
some person. It is not necessary to set out details of the offence or mentioning of a particular
section of the Indian Penal Code.

It is sufficient if the necessary facts disclosing an offence have been stated in the
complaint. Prosecution and trial against an accused cannot be allowed to be defeated merely
because there is a technical defect in the complaint.

The allegation must have been made with a view to the magistrate taking action under
the Code. An express request to that effect is not necessary. But a mere statement made before
the magistrate by way of information without inducing him to take any action is not sufficient
and therefore, is not a complaint.

Who may file :

Crime is a wrong against the society at large and, therefore, as a general rule; any
person having knowledge of the commission of an offence may set the law in motion by a
complaint. There is nothing in the Code requiring complaint to be made by person injured.
Aggrieved or affected. The word “complainant” has not been defined in the Code. But a

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complainant can be said to be a person who makes an allegation to a magistrate, which

amounts to a complaint.

Form :

The Code does not prescribe a particular form in which a complaint should be made. All
that is necessary is that there must be an allegation before a magistrate prima facie disclosing
commission of offence with necessary facts for his to take action. It is the substance and not
the form of the complaint that has to be considered. Thus, the heading of the complaint, use of
wrong form, quoting of wrong section, etc., are not material. Thus, a letter or telegram
addressed to a magistrate may constitute a complaint if other ingredients are satisfied.

Police report :

The expression “police report” has been defined as “a report forwarded by a police
officer to a magistrate under Sec. 173(2) of the Code. It is the report forwarded by the police to
a magistrate in the prescribed form containing the particulars requited by Sec. 173(2) (a) and
(g) after completion of investigation.

Limitation :

Since a criminal offence is an injury against the society, mere delay in filing a complaint
does not afford a good ground for its dismissal, if no limitation is prescribed for filing the
complaint.

1.5 Distinction Between Complaint and First Information Report (FIR):

A complaint must be distinguished from the first information report:

1) In a complaint, the allegations are made to a magistrate, whereas the first

information report is given to police;

2) A complaint may relate to a cognizable or non-cognizable offence, while a first

information report must relate to a cognizable offence on the face of it;

3) A magistrate takes cognizance on a complaint made to him, whereas a police officer

starts investigation on first information report;

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4) A compliant does not include police report, but first information report may be given
by anybody including a police officer;

Complainant :
Complainant is a one who applies to the court for legal redress. He is a person who
makes formal accusation in court of law. It is he who moves magisterial court by making
certain allegations against an accused who has infringed law so that actions may be taken
against him.

1.6 Arrest of Persons And Rights of Arrested Persons :

Introduction :

Section 41 to 60 of the Code of Criminal Procedure deals with arrest with arrest of
persons and rights of arrested persons. As seen above, as far as possible a trial must be held in
a presence of the accused. The trial before the magistrate commences ‘when the accused
appears, or is brought before him’. The attendance of the accused before the magistrate can be
secured by his arrest. Arrest is, therefore, the first step in the process of investigation and trial.
Arrest of a person can be affected in two ways : (1) with a warrant; (2) without a warrant.

Arrest Meaning :

The word “arrest” has not been defined in the Code. Simply speaking, arrest means
taking of a person in custody under legal authority.

Arrest is a restraint of the liberty of a person in order to compel obedience to the order
of the Court of Justice or to prevent the commission of a crime or to ensure that a person
charged with or suspected of a crime may be forthcoming to answer it.

The terms ‘arrest’ and ‘custody’ are not synonymous. In every arrest, there is custody,
but vice versa is not true. Custody may or may not amount to arrest. The arrest starts with an
arrester taking a person in his custody and continues until such person is released.

By who arrest can be made?

Arrest can be made

1) by a police officer;

2) by a magistrate;

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3) by a private person;

Lets us consider a relevant provisions in detail.

1) By Police Officer :

Sec. 41 and 42 confer very wide powers on a police officer to arrest any person
without a warrant and without an order from a magistrate. These provisions however,
are not exhaustive and an arrest can be made under other special laws: Indian Railway
Act, Income-tax Act, Prevention Detention Laws etc.,

A police officer may arrest without warrant –

a) Any person concerned in a cognizable offence;

b) Any person in possession of any implement of house-breaking;
c) Any proclaimed offender;
d) Any person in possession of anything reasonably suspected to be stolen property;
e) Any person obstructing a police officer in the execution of his duty or escaping or
attempting to escape from lawful custody;
f) Any deserter from the Armed Forces;
g) Any person concerned in any offence committed outside India, which if committed in
India world have been punishable as an offence;
h) Any habitual robber, house-breaker, thief, forger, receiver of stolen property, protector
or harbored of thieves or a habitual offender;
i) Any desperate or dangerous person;
j) Any person whose suspension or remission of sentence has been cancelled by the
Government;
k) Any person for whose arrest a requisition has been received;
l) Any person concealing his presence with a view to commit a cognizable offence;

Though Sec.41 of the code confers very wide powers on the police of arresting person
without warrant, they can be exercised strictly in accordance with law.

Sec.42 authorizes a police officer to arrest any person without warrant only if such
person:-
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(a) 1) Commits a non-cognizable offence in the presence of a police officer;

2) Is accused of committing such offence;

(b) On demand by such officer

A magistrate may arrest without warrant –

(i) Any person who commits an offence in his presence;

(ii) Any person for whose arrest he is competent to issue a warrant.

2) By Magistrate :

A magistrate may arrest without warrant –

(i) Any person who commits an offence in his presence;
(ii) Any person for whose arrest he is competent to issue a warrant.

Section 44(1) says that the magistrate is empowered to arrest a person who has
committed an offence in his presence and also to commit his to custody.

Section 44(2) empowers the magistrate only to arrest a person who is suspected of
having committed an offence. The power to commit the offender to custody is not conferred.

3) By Private Person :

A private person can arrest without warrant-

(i) Any person who commits a non-bailable and cognizable offence in

his presence;
(ii) Any person who is a proclaimed offender;

The principle underlying this section is that “for the sake of preservation of the peace,
any individual who sees it broken may restrain the liberty of his whom he sees breaking it, so
long as his conduct shows that the public peace is likely to be end angered by his acts”.

The right of arrest by a private person under Sec. 43 must be exercised simultaneously
with the commission of the offence. Against, the provision is merely enabling and does not
make it obligatory on the part of a private person to make an arrest without warrant.

Arrest of Woman:
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Sec 46(4) as inserted by the Code Criminal Procedure (Amendment) Act, 2005 prohibits
arrest of a woman after sun set and before sun rise except in unavoidable circumstances. In
exceptional cases, where a woman is to be arrested after sun set and before sun rise, the
provision requires such arrest by a woman police officer after obtaining prior permission in
writing of the judicial officer of the first class where the offence is committed or arrest is to be
made.

How Arrest can be made?

“Arrest consists of actual seizure or touching of a person’s body with a view to his
detention. The pronouncing of words of arrest is not an arrest unless the person sought to be
arrested submits to the process and goes with the arresting officer”.

Section 46(1) states that in making an arrest the police officer or other person shall
actually touch or confine the body of the person to be arrested, unless there is a submission to
the custody by word or action by the person to be arrested.

The essential elements of arrest are that:-

(i) There must be an intention to arrest under the authority of law;

(ii) It must be accompanied by seizure or detention of a person in the manner known
to and recognized by law.

Rights of Arrested Persons:

Apart from imposing certain duties on the police officers making arrest of a person, the
Code confers specific rights by making express provisions in favour of a person who is
arrested. Let us consider them in detail :

a) Right to know grounds:

A person arrested has right to know the grounds for his arrest. Every police
officer or other person arresting any person shall have to communicate such grounds to
the person arrested. Article 22 of the Constitution also confers a fundamental right on
every arrested person to be informed of the grounds of his arrest or detention.

b) Right to Bail :
If a person is an accused in a bailable offence, he should be informed by a police
officer arresting him of his right to be enlarged on bail.
c) Rights to be produced before magistrate or court:
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Any person arrested must be taken a magistrate or before a court without

unnecessary delay and should not be detained for more than twenty four hours.

d) Rights to inform relative/friend:

An arrested person had right to have his relative or friend being informed about
the fact time and place of arrest.

e) Right to consult lawyer:

Article 22 (1) confers on every person who is arrested the right to consult a legal
practitioner of his own choice. He is also entitled to free legal aid if he is an indigent
person and is not in a position to engage an advocate.

f) Right to be examined by doctor :

Sec. 54 confers right on a person arrested to have him medically examined to

enable him to defend and protect himself effectively. Again, medical examination of a
female should be made by a lady doctor or under her supervision.

1.7 First Information Report (FIR):

Sec. 154 to 176 deals with “Information to the police and their powers to investigate”,
a) Information to the police regarding the commission of an offence; b) investigation by the
police; we will consider the information received by the police as to commission of a
cognizable offence (Sec. 154); non-cognizable offence (Sec.155) and where the death of a
person takes place in suspicious circumstances(Sec. 174);

Meaning:

As stated above, the first information report is not defined in the Code. However,
it can be said to be information given to the police first in point of time relating to a cognizable
offence. This is one of the modes by which criminal law is put in motion. It is the earliest
report made to the police officer with a view to his taking action and on the basis of which
investigation has commenced.

Section 154 reads as under (1) Every information relating to the commission of a
cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to
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writing by him or under his direction, and be read over to the informant; and every such
information, whether given in writing or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a book to be kept by such officer
in such form as the State Government may prescribe in this behalf.

Object :

The principal object of the first information report from the point of view of the
informant is to set the criminal law in motion and from the point of view of the investigating
authorities is to obtain information about the commission of a cognizable offence with a view
to taking suitable steps for tracing and bringing to books the offender.

Another equally important object of recording of the first information report is to obtain
early information of the alleged offence from the informant and to put into writing the
statement before his memory fails or before he get time and opportunity to embellish it.

The information is very important for the accused also inasmuch as he is entitled to
know what where the facts stated immediately after the occurrence to connect him with the
crime.

Nature and Scope:

The first information report is the first version of commission of a cognizable offence
and on the basis of which investigation is commenced by the police. It is not an encyclopedia
of the entire case and it is, therefore, not necessary that such information such be given by an
eye-witness.

It may be hearsay also. Such information may come from any quarter, even from
anonymous sources. It need not be in writing or against a named person. Therefore, a
telephonic message if it discloses a cognizable offence may constitute first information report.

Likewise a anonymous telephone or oral message which does not clearly specify a
cognizable offence but simply states that a person is lying injured or dead cannot be termed as
first information report. Whether particular information would constitute FIR or not is a
question of fact.

Requirements :

A first information report must fulfill the following conditions:

a) The information must have been given to the officer in charge of a police station;

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b) Such information must relate to the commission of a cognizable offence;

c) It must have been the earliest report relating to the commission of a crime on the
basis of which investigation would have commenced;

d) It must be in writing or be reduced in writing and must be signed by the

informant;

e) The information reduced in writing must be read out to the informant and a copy
thereof should be given to the informant forthwith free of cost;

f) The substance of the information must be entered in a book called station diary
or general diary.

Importance :

First information report is an extremely vital and valuable piece of evidence. It is the
first version of the alleged criminal activity conveyed to police officer with the object of
putting the law in motion.

Again, first information report is a statement made soon after the occurrence when the
memory of information is fresh and there are rare possibilities of fabrication and concoction.
Therefore, courts have always viewed the information with gave suspicion when there has been
delay in giving it.

Delay in lodging the first information report often results in introduction of an

exaggerated account or a concocted story. People very often try to crimes committed by some
persons known or unknown on their personal enemies, after consultation with other people and
in many cases people charged with offences have been acquitted because of the suspicion
arising from the delay in giving the information.

FIR by Accused:

It may also happen that a person lodging the first information report may be charged
with the very offence for which the report was lodged by him.

Such a contingency may arise either:-

(i) Where the first information report is confessional in nature;

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(ii) Where the first information report is not confessional one but the investigation on
the basis of such report reveals involvement of the person lodging the report in
the crime.

The settled legal position is that if the report is confessional, it is not admissible in
evidence but if it is not confessional, it is admissible in evidence against the accused.

1.8 Types of Trials and it’s features :

Introduction:-

The code provides different types of criminal trials for different kinds of criminal cases.
The more elaborate trial procedures being provided in respect of serious types of offences.
Simple and less elaborate procedures in case of offences of lesser gravity and complexity and
still simple and more abridged procedures for petty criminal cases. Such differential treatment
of trial procedures becomes inevitable if the available time and resources are to be utilized
equitably to do justice in all and sundry criminal cases.

We have already seen how the code has classified criminal cases into “warrant cases”
and “summons cases” depending upon the gravity of the offences to which they relate a
“warrant cases” is one which relates to an offence punishable with death, imprisonment for life
or imprisonment for a term exceeding two years, and a ‘summons case’ is one relating to an
offence which is not so severely punishable as in a warrant case this classification of criminal
cases has been made the basis for making a primary decision as to the type of trial procedure
to be adopted in respect of any criminal case. They type are

1) Trial before court of session [see – 225-237]

2) Trial before of warrant cases before magistrate [238-258]
a) with police report
b) Without police report
3) Trial of summons cases by magistrates [251-259]
4) summary trials [260-265]

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UNIT-II

TRIAL PROCESS –I

2.1 Commencement of Proceedings :

Issue of Process

Section 204 provides that if in the opinion of the magistrate taking cognizance of
an offence there is sufficient ground for proceeding, he shall issue process against the accused.

If the case appears to be a summons case, he shall issue summons. It the case
appears to be a warrant case, he may issue a warrant. But even in a warrant cases if he thinks
fir, he may issue summons for causing the accused to be brought before him if he has
jurisdiction or before some other magistrate having jurisdiction. No summons or warrant shall
be accompanied by a copy of the complaint. No process shall be issued until the process fee is
paid.

Meaning :

When it is said that the court has issued process, it means that the court has taken
cognizance of the offence and has decided to initiate proceedings. As a visible manifestation of
taking cognizance, process is issued which means that the accused is called upon to appear
before the court. This process may either take the form of a summons or a warrant.

Who may issue:

A process against the accused can be issued by the magistrate taking cognizance of an
offence under Sec. 190. It can also be issued by the magistrate to whom a case has been
transferred under Sec. 192 by the magistrate who has taken cognizance.

Sufficient ground:

The words ‘sufficient ground’ have been construed to mean the satisfaction that a prima
facie case is made out against the accused by the evidence of witnesses entitled to a reasonable
degree of credit, and not sufficient ground for conviction.

The question whether there is sufficient ground for proceeding should be based upon the
materials referred to in the section, namely statement on oath of the complainant and his
witnesses and the result of investigation and inquiry.
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Again, the decision whether or not there is sufficient ground for dismissing a complaint
must be taken by the magistrate by exercising discretion judicially.

Hearing of accused :
At the stage of issuing process, what the magistrate has to see is whether there is prima
facie case against the accused on the basis of the allegations made in the complaint.

Recording or reasons :

An order summoning an accused under Sec. 204 need not be a ‘speaking order’
containing detailed reasons. But summoning an accused is a serious matter. Such order should,
therefore, reflect that the magistrate has applied his mind to the facts before him in the light of
settled legal position.

Quashing of process :

The scope of inquiry under Sec. 202 and 204 is extremely limited only to find out
whether there is prima facie case against the accused and not whether there is sufficient
evidence for his conviction and there the power of a High Court or the Supreme Court to
interfere with orders passed by a magistrate is also limited.

ATTENDANCE OF ACCUSED

Section 205 enacts a salutary rule. It empowers the magistrate to dispense with the
personal attendance of the accused in certain circumstances. It provides that if the magistrate
sees reason to do so, he may permit the accused to appear through his lawyer.

At the same time. However, it authorizes the magistrate inquiring into or trying the case
in his discretion to enforce personal presence of the accused at any stage of the proceeding if
necessary.

Petty Offences :

Sec. 206 contains another important provision inserted in the Code of 1973 pursuant to
the recommendation of the Law Commission.

It has been enacted with a view to avoiding unnecessary inconvenience to persons

accused of petty offences, punishable with a fine up to Rs. 1,000/- only.

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Supply of Documents :

Where the proceeding has been instituted on a police report, the magistrate shall without
delay furnish to the accused free of cost copies of the following documents:

(i) Police report;

(ii) First information report;

(iii) Statements recorded under Sec. 161(3) of all persons whom the prosecution
proposes to examine as its witness;

(iv) Confessions and statements recorded under Sec. 164;

(v) Any other document or relevant extract thereof forwarded to the magistrate with
the police report under Sec. 173(5).

2.2 Magisterial Powers to take Cognizance :

A. Modes of taking Cognizance:

Any magistrate of the first class or any magistrate of the second class specially
empowered may take cognizance of any offence –

1) upon receiving a complaint of facts which constitute an offence;

2) upon a police reports of such facts;

3) upon information received from any person other than a police officer;

4) upon his own knowledge that such offence has been committed;

a) On Complaint:
On examining the complainant, the magistrate may take cognizance. The
magistrate, however, cannot take action under Sec. 190(1) (a) unless the petition
presented to him amounts to “complaint” as defined in Sec. 2(d)

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A magistrate is not debarred from taking cognizance of an offence on a

complaint merely on the ground that a previous complaint has been dismissed or
earlier he had declined to take cognizance on a police report.

b) On police report :

A magistrate may also take cognizance of an offence on the basis of the

police report under Sec. 190(1)(b). As discussed above, on receipt of a complaint,
the magistrate may, instead of taking cognizance of an offence order an investigation
under Sec. 156(3). On receiving the final report under Sem. 173(2), the magistrate
may take cognizance of the offence irrespective of the view taken by the police.

c) On information :

Sec.190(1) (c), a magistrate may take cognizance of an offence when he

receives information from “any person”. The words “information received from any
person other than a police officer” make it amply clear that such information must be
other than “compliant” or “police report”.

d) On personal knowledge:

Sec. 19 (1)(c) also empowers a magistrate to take cognizance of an offence

upon his own knowledge. The word “knowledge” is wide enough to mean
personal knowledge as well as knowledge derived from other sources.

Knowledge is not restricted to only those events witnessed by the magistrate

himself. Knowledge by the magistrate is sufficient and it need not be shared by
any other person. The magistrate, however, cannot take cognizance on a mere
suspicion.

B. Modes not mutually exclusive :

Cognizance of an offence can be taken by a magistrate under any of the Sec. 190
(1) deals with any hermetic sealing or compartmentalization of three clauses and
holding that these are mutually exclusive is neither justified on principal not on
authority.

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A magistrate is also not debarred from taking cognizance of an offence only

because another magistrate has taken cognizance of the same and is in seisin of the case.
Multiplicity of trials can be avoided by transfer of a case to one to one of them.

C. Ordering investigation under Sec. 156(3) :

Sec. 156(3) of the Code empowers a magistrate to order investigation. After

receiving a complaint an applying his mind to the allegations therein, if a magistrate
orders investigate under Sec. 156(3), it cannot be said that he has taken cognizance of
an offence under Sec. 190.

D. Transfer of case at the instance of accused :

When a magistrate takes cognizance of an offence upon information received

from any person other than a police officer under Sec. 190(10)(c), the accused must be
informed before any evidence is taken that he is entitled to have the case inquired into
two tried by another magistrate.

If the accused or any of the accused if there be more than one, object to further
proceedings before the magistrate taking cognizance, the case will be transferred to such
other magistrate as may be specified by the Chief Judicial Magistrate.

E. Power of court to transfer :

A Chief Judicial Magistrate may after taking cognizance of an offence transfer a

case to any other competent magistrate subordinate to him.

Likewise, a magistrate of the first class empowered by the Chief Judicial

Magistrate may in similar circumstances transfer a case to any other magistrate
competent to try a case as the chief Judicial Magistrate may be general or special order
specify.

2.3 Bail :
The law of bails constitutes an important branch of procedural law. Section 436 to 450
deals with provisions relating to bail and bonds.

Offences may be classified as :-

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a) bailable offences;
b) non-bailable offences;

However, law conferred on courts to release accused persons on bail in appropriate

cases on executing a bond with or without sureties. Bail granted to an accused can also be
taken into custody.

The power to release an accused person can be exercised not only during the pendency
of the trial but also during the pendency of an appeal or revision. Moreover, bail can be granted
in anticipation of arrest with would amount to “an insurance against police custody following
upon arrest for offence or offences in respect o which order is issued”.

Definition :-

The term “bail” has not been defined in the Code. The word “bail” is derived from old
French verb “bailer” which meant ‘to give’ or ‘to deliver’. According to the Concise Oxford
English Dictionary, “bail” means “temporary release of an accused person awaiting trial,
sometimes on condition that s sum of money is lodged to guarantee his appearance in court”.

Thus, it is a process to set a person free who is under arrest or detention by taking
security for his appearance. It is a security taken from a person accused of an offence to appear
on a day fixed by the Court.

When Bail may be granted:

Individual freedom is the basic concept in democracy. Liberty of every citizen must be
zealously safeguarded by courts. Every person including an accused is entitled to freedom and
he cannot be punished by keeping him behind the bars unless he is found guilty by a competent
court of law.

Hence, basic rule should be ‘bail and not Jail” except where there are circumstances
suggestive of the accused fleeing the course of justice, possibility of his repeating offences and
the like.

a) Bail as of right:

i) Bailable offences :
Where a person accused of a bailable offence is arrested or detained without
warrant or appears before a court and is prepared to give bail, the police officer or
the court having custody of such person shall release him on bail.

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The police officer or court, instead of taking bail from him may release him on
his executing a bond without sureties. If a person fails to comply with conditions of
the bail-bond as regards the time and place of attendance, the court may refuse to
release him on bail when on a subsequent occasion in the same he appears or is
brought before the court.

ii) Where investigation is not over within prescribed period (Default Bail):

Sec. 167(2) provides that where a person is in custody and the investigation is
not over in ninety days where such investigation relates to an offence punishable
with death, imprisonment for like or imprisonment for ten years or more and in sixty
days, where such investigation relates to any other offence, the accused is entitled to
get bail as of right after the period of ninety days or sixty day, as the case may be is
over.

iii) Where further investigation is necessary :

Where any person accused or suspected of commission of any non-bailable

offence is arrested or detained without warrant by a police officer or appears before a
court.
It appears to such officer at any stage of investigation inquiry or trial that there
are no reasonable grounds for believing that the accused has committed a non-
bailable offence.

iv) Where maximum period of detention over :

Sec. 436 A, as inserted by the Code of Criminal Procedure (Amendment) Act,

2005 mandated that an under trial prisoner, other the one accused of an offence
punishable with death, shall be released on bail if he has been under detention for a
period of more than one-half of the maximum sentence provided for the alleged
offence.

v) Where trial is not over within prescribed period:

If in any case trial by a magistrate, that trial of a person accused of any on-
bailable offence is not concluded within a period of sixty days from the first date
fixed for taking evidence in the case, such person shall, if he is in custody during the
whole period, be released on bail unless the magistrate directs otherwise by
recording reasons for doing so.
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vi) Where there are no reasonable grounds to believe accused guilty :

If at any time after the conclusion of the trial of a person accused of a non-
bailable offence and before judgment is delivered, the court is of the opinion that
there are reasonable grounds for believing that the accused is not guilty of any such
offence, it shall release the accused on bail, if he is in custody.

b) Discretion in granting bail :

(i) Non-bailable offences:

Where any person accused or suspected of commission of any non-bailable

offence is arrested without warrant by a police officer appears before a court, other
than the High Court or Court of Session, he may be released on bail after recording
reasons, if such offence is not punishable with death or imprisonment for life.

(ii) Where accused is minor, woman, etc.,:

Where any person accused or suspected of commission of any non-bailable

offence is arrested without warrant by a police officer appears before court, other
than the High Court or Court of Session, he may be released on bail.

(iii) Offence punishable with imprisonment for seven years or more :

(iv) Anticipatory bail :

Where any person has reason to believe that he is likely to be arrested on an

accusation of having committed a non-bailable offence, a High Court or Court of
Session may if it thinks fit, may direct that in the event of such arrest, he should be
released on bail.

(v) Bail in other cases :

Sec. 389 empowers an appellate court to grant bail to a convicted person during
the pendency of appeal.

c) Hearing of public prosecutor :

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The Code of Criminal Procedure (Amendment) Act, 2005 provides that if the
allegation against the accused is that he has committed an offence punishable with death,
imprisonment for life or imprisonment for seven years or more, he cannot he released on
bail by the court with hearing the public Prosecutor.

d) Considerations :

From the aforesaid discussion, it becomes clear that in case of bailable offences
bail can be claimed as of right. Deprivation of freedom by refusing bail should not be
punitive and the basic rule should be “bail and no jail”.

The following factors are relevant for deciding whether to grant or refuse bail.

1) The nature and gravity of the offence;

2) The enormity of the charge;
3) The severity of the punishment proscribed;
4) The nature of evidence in support of accusation;
5) The probability of accused absconding, if released on bail;
6) Age, sex health, background, antecedents and character of the accused;
7) Character of the evidence against the accused;
8) Period for which the accused remained in custody;

e) Recording or reasons :

Sec. 437(4) requires a police officer or a court for the reasons to be recorded in
writing when a person accused of a non-bailable offence punishable with death or
imprisonment for life is released on bail. It would enable the superior court to satisfy that
the power has or has not been properly exercised. It would also reflect whether the police
officer or the court has passed the order after application of maind and on consideration of
relevant circumstances.

f) Special powers of High Court and Sessions Courts :

Sec. 439 confers powers on High Court and Sessions Courts to release on bail any
person accused of any offence and in custody. A High Court or Court of Sessions may
also direct that person who has been released on bail may be arrested and commit him to
custody.

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When Bail may be refused :

Where any person accused or suspected of any non-bailable offence is arrested or
detained and there appears a reasonable ground for believing that he has been guilty of an
offence punishable with death or imprisonment for life, he shall not be released on bail by the
magistrate.

The first proviso, however, authorizes the court to grant bail if the accused is:-

1. a minor;
2. a woman;
3. a sick or infirm person.

The second proviso also empowers the court to grant bail for any other specified reason
which the court considers just and proper.

Even where the offence is not punishable with death or imprisonment for life but a
cognizable one and the person has been previously convicted of an offence punishable with
death or imprisonment for life or imprisonment for seven years.

ANTICIPATORY BAIL

So far we have discussed the provisions relating to bail. A mention must be made of a
special provision of granting anticipatory bail introduced in Sec. 428 of the Code of Criminal
procedure, 1973.

Meaning:

The words “anticipatory bail” has not been defined in the code. “Anticipatory bail”
means bail in anticipation of arrest. The expression “anticipatory bail” is a misnomer as it is
not bail presently granted in anticipation of arrest. When the court grants anticipatory bail, it
makes an order that in the event of arrest, a person is arrested and therefore, it is only on arrest
that the order granting anticipatory bail becomes operative.

Section 438
Section 438 of the code reads as under :

“Direction for grant of bail to person apprehending arrest :

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1. When any person has reason to believe that he may be arrested on an accusation of
having committed a non-bailable offence, he may apply to the High Court of the
Court of Session for a direction under this section; and that Court may, if it thinks fit,
direct that in the event of such arrest he shall be released on bail.

2. When the High Court or the Court of Session makes a direction under sec. 438(1), it
may include such conditions in such directions in the light of the facts of the
particular case, as it may think fit, including :-

i) a condition that the person shall make himself available for interrogation
by a police officer as and when required;
ii) a condition that the person shall not, directly or indirectly, make any
inducement, threat or promise to any person acquainted with the facts of
the case so as to dissuade him from disclosing such facts to the Court or to
any police officer;
iii) a condition that the person shall not leave India without the previous
permission of the Court;

3. if such person is thereafter arrested without warrant by an officer in charge of a

police station on such accusation, and is prepared either at the time of arrest or at any
time while of the custody of such officer to give bail, he shall be released on bail;
and if a Magistrate taking cognizance of such offence decides that a warrant should
issue in the first instance against that person.

Malimath Committee’s Report :

Malimath Committee has observed in its report that the provision as to anticipatory bail
has often been ‘misused by rich and influential people’. The Committee, however, opined to
retain the provision subject to two conditions;

1) Public Prosecutor should be heard by the court before granting an application for
anticipatory bail;

2) Petition for anticipatory bail should be heard only by the court of competent
jurisdiction.

Scope of Anticipatory bail:

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Section 438 empowers a High Court and a Court of Session to grant anticipatory bail. It
is not as if bail is presently granted by the Court in anticipation of arrest. But it means that in
event of arrest, a person shall be enlarged on bail.

This power is extraordinary in character and it is only in exceptional cases where it

appears that a person might be falsely implicated, or frivolous case might be launched against
him. This power being rather unusual in nature is entrusted only to the higher echelons of
judicial service, namely a Court of Session and a High Court.

Bail and anticipatory bail : Distinction :

The distinction between an ordinary bail and anticipatory bail is that whereas the former
is available and granted after arrest, and therefore, means release of a person from the custody
the latter is available and granted in anticipation of arrest and is therefore effective at the very
moment of arrest.

Forum :

Sec. 438 confers concurrent jurisdiction of granting anticipatory bail on high court and
Court of Session. The power being unusual in nature, is entrusted only to the higher echelons
of judicial service. Some high courts have taken the view that ordinarily, a court of session
must first be moved by an applicant.

Notice to Public Prosecutor :

There is no provision in section 438 for issuing notice to the Public Prosecutor and
hearing by the court before granting anticipatory bail.

However, as held by the Supreme Court in Gur Baksh Singh V/s State of Punjab, a
notice should be issued to the Public Prosecutor or the Government advocate before passing
final order granting anticipatory bail. Therefore, if there are circumstances justifying ex parte
interim order, the court may pass such order, issue notice to the Public Prosecutor by making it
returnable and may pass final order after hearing both the sides.

Presence of applicant :

In several cases, after dismissal of application for anticipatory bail, the applicants used
to abscond or avoid arrest. Sometimes applications for anticipatory bail where filed without
affidavit of the applicant and at times, application was moved though the applicant was out of
India.
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It was difficult thereafter to arrest such accused even if anticipatory bail was refused. An
express provision has, therefore, been made in Sec. 438 that the court may direct the applicant
to remain present in court. It is also provided that in case the court rejects the application of
applicant for anticipatory bail, he can be arrested forthwith.

Conditions :
The High Court and the Court of Session to whom the application for anticipatory bail
is made can impose such conditions as the case may warrant.

The conditions mentioned in Section 438 (2) are merely illustrative and not exhaustive.
The court while granting anticipatory bail must remember that the investigation has not yet
been completed and therefore, it is the duty of the court to ensure that the investigation should
not be hampered or interfered with in any manner.

The court, however, cannot impose a condition other than warranted by law. Thus, no
direction can be issued to the effect that the applicant if arrested should be released on bail
provided he produced the alleged stolen property before the investigating officer. Such order
can be set aside by the High Court in revision or by exercising inherent powers.

Blanket order :
A blanket order of anticipatory bail is an order which serves as a blanket to cover or
protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or
unlikely regarding which, no concrete information can possibly be had. Such a blanket order of
anticipatory bail should not generally be granted. Since the section requires the applicant to
show that he has “reason to believe” that he may be arrested, such belief must be formed only
if there is something tangible to go by on the basis of which it can be said that the applicant’s
apprehension is genuine.

Successive applications :
A second application after rejection of the first one under Sec. 438 is maintainable if
there are additional facts, further developments and different considerations.

Cancellation:
Through there is no specific provision is Sec. 439 regarding cancellation of bail it is
implicit that the Court who grants anticipatory bail is entitled upon appropriate consideration to
cancel or recall that order.
Thus, an order of anticipatory bail granted by Court of Session can be recalled or
cancelled by the Court or by the High Court.

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CANCELLATION OF BAIL

Rejection of bail when bail is applied for is one thing; Cancellation of Bail already
granted is quite another. It is easier to reject a bail application in a non-bailable case than to
cancel a bail granted in such a case. Cancellation of Bail necessarily involves the review of a
decision already made and can by the large be permitted only if by reason of supervening
circumstances.

Rationale :

At the same time, however, it should not be forgotten that the granting a bail in a non-
bailable offence is a concession allowed to an accused person and it presupposes that this
privilege is not to be abused in any manner.

Statutory provisions :

Sec. 437(5) empowers the Court which has granted bail be cancel it, if it considers
necessary so to do and direct such person to be arrested and commit him to custody. Similarly,
Sec. 439 (2) authorizes a High Court or Court of Session that any person who has been
released on bail should be arrested and commits him to custody.

Notice to accused :

Bail cannot be cancelled without issuing notice to the accused and without affording
opportunity of hearing. But bail can be cancelled if in spite of notice, the accused does not
appear and avail such opportunity.

Inherent power to cancel bail :

But even in absence of an express provision of cancellation of bail in the Code, the
power of cancellation springs from the overriding inherent powers of the High Court and can
be invoked in exceptional cases only when the High Court is satisfied that the ends of justice
will be defeated unless the accused is committed to custody.

Power and duty of courts :

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The power of cancellation of bail must be exercised with utmost care and
circumstances.

While exercising the power of cancellation of bail, the Court has to strike a balance
between two conflicting interests :

i) necessity of not allowing the course of justice to be deflected;

ii) allowing liberty to the accused until he is found guilty.

Circumstances :

Considering the above principles, it can be said that bail may be cancelled in the
followings circumstances:

When a person on bail, during the period of bail –

1) commits same or similar offences for which he is being tried or has

been convicted;
2) hampers investigation;
3) tampers with evidence;
4) absconds or goes beyond the control of sureties;
5) terrorizes witnesses or commits acts of violence against police;
6) misuses the liberty granted to him;
7) if the life of the accused himself is in danger;

Bail can also be cancelled if the Court is satisfied that the order granting bail was
without jurisdiction; or the Court had committed an error of law in granting bail; or after grant
of bail there has been material changes in the circumstances.

2.4 Dismissal of Complaints :

If, after considering the statements on oath of the complainant and of the witnesses and
the result of the enquiry or investigation under Sec. 202, the magistrate is of opinion that there
is no sufficient grand for proceeding, he shall dismiss the complaint, and in every such case he
shall briefly record his reasons for so doing.

Section 203 requires a magistrate taking cognizance of an offence on a complaint to

form a judgment as to whether or not there are sufficient grounds to proceed with the case.
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This judgment must be based on the statements made by the complainant and his witness and
the result of the investigation or inquiry under Sec. 202, if any.

The magistrate must apply his mind to these materials and then form his judgment as to
whether or not there is “sufficient ground for proceeding”.

In Chandre Deo Singh V/s Prakash Chandra Bose, where dismissal of a complaint by
the magistrate at the stage of inquiry under Sec. 202 was set aside, the Supreme Court laid
down that the test was whether there was sufficient ground for proceeding and not whether
there was sufficient ground for conviction.

The court further observed that where there is prima facie evidence even though the
accused may have a defence…… that the offence is committed by some other persons, the
matter has to be left to the decided by the appropriate forum at the appropriate stage and issue
of process cannot be refused.

At the stage of Sec. 203 and 204 in a case exclusively tribal by the court of session, all
that the magistrate has to do is to see whether on a perusal of the complaint and the evidence
recorded during preliminary inquiry under Sec. 200 and 202 there is prima facie evidence in
support of the charge leveled against the accused.

All that he has to see is whether or see is whether or not there is “sufficient ground for
proceeding” against the accused. At the stage, the magistrate is not to weigh the evidence
meticulously as if he were the trial court. The standard to be adopted in scrutinizing the
evidence is not the same as the one which is to be kept in view at the stage of framing charges.

Even at the stage of framing charges the truth, veracity and effect of the evidence which
the complaint produces or proposes to adduce at the trial, is not to be meticulously judged.

In exercising his discretion under Sec. 203 the magistrate should not allow himself to be
influenced by consideration of the motive by which the complainant may have been actuated in
moving in the matter; nor by any other consideration outside the facts which are adducted by
the complainant in support of his complaint.

Sec. 203 requires that in every case the magistrate dismisses the complaint under this
section; he shall briefly record his reasons for doing so. Without reasons, it would be almost
impossible to determine whether the magistrate while dismissing the complaint applied his
mind to the facts, or whether the discretion was properly exercised or not.

The order of dismissal of complaint is subject to scrutiny by higher courts and is

revisable; and therefore the recording of reasons for such dismissal would be useful for such
scrutiny. It should be possible for the accused at this stage to satisfy the magistrate that there

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was no case at all against him and that he can even recall the order issuing process under Sec.
204 and dismiss the complaint under Sec. 203.

The imperative duty of considering the relevant materials and his requirement of the
recording of the reasons are necessary safeguards against the arbitrary dismissal of a
complaint.

Where a complaint is preferred against several person and order passed amounts to the
dismissal thereof against some of them, it must contain brief reason for not proceeding against
such of the accused persons against whom no order as to issue of process is passed under Sec.
204(1) of the Code.

The order of dismissal of a complaint without recording reasons would be illegal and
this illegality cannot be cured by Sec. 465 as the error is of a kind which goes to the root of the
matter. Giving of reason for making an order of dismissal of a complaint is a prerequisite of the
order and absence of the reasons would make the order a nullity.

2.5 Charge :
Introduction :

Section 211 to 224 of the Code of Criminal procedure deals comprehensively with the
charges in a criminal trial.

Section 211 to 214 deal with contents, essential and particulars in charge while Sec. 216
to 217 empowers the Court to alter the charge in certain circumstances.

Section 218 lays down the basic rule that for every distinct offence there shall be a
separate charge. Section 219, 220 and 221 provide exceptions to the above rule.

Section 222 enumerates cases wherein an accused can be convicted of an offence with
which he is not charged.

Section 223 deals with joint trial of more than one person.

Section 224 permits withdrawal of remaining charges when an accused in convicted on

one of several charges.

Section 215 must be read with Sections 464-465 of the Code which cover cases of
departure in framing charges and the consequences thereof.

Meaning :

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Through the term “Charge” is defined in Sec. 2 (b) of the code, the definition is merely
inclusive in nature and does not explain the meaning thereof.

A charge may be defined as an accusation made against a person in respect of an act

committed or omitted in violation of a penal law forbidding or commanding it. It is a precise
formulation of a specific accusation made against a person of an offence alleged to have been
committed by him. In other works, a charge is a basic written document containing the
description of the offence which the accused is called upon to answer at have committed the
offence.

“Charged with Crime” means and understood something more than suspected or
accused of crime by popular opinion or rumour, and implies that the offence has been alleged
against the party according to the forms of law. Charge is foundation of accusations. A charge
is an important step in a criminal proceeding. It separated the stage of inquiry from trial.

Object :

The main object of the charge is to enable the accused to have a clear idea of what he is
being tried for and of the essential facts that he has to meet. The purpose of the charge is to
inform the accused as precisely and as concisely as possible of the accusation which he has to
answer, and to afford him an opportunity to defend him.

The primary object of framing charge is to give notice of the essential facts which the
prosecution proper to establish to being home charge is to accused so that he may be able to
defend and may not be prejudiced.

Contents :

Sections 211-214 of the Code enumerate requirements and particulars which a valid
charge should contain.

Looking to those provisions, it is clear that to be a valid charge, the following

requirements must be satisfied;

1) It must state the offence with which the accused is charged;

2) If the law which creates the offence gives it any specific name, the offence should be
described in the charge by that name only;

3) If the law which creates the offence does not give any specific name, so much of the
definition of the offence must be stated as to give the accused notice of the matter
with which he is charged;
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4) It must be in writing;

5) It must be in the language of the court;

6) The law and section of the law against which the offence is said to have been
committed must be mentioned in the charge;

7) If the accused has been previously convicted of any offence, and by reason of such
previous conviction, is liable to enhanced punishment or to punishment of a different
kind for a subsequent offence, the fact, date and place of the previous conviction
must be stated in the charge;

8) In every charge words used in describing an offence shall be deemed to have been
used in the sense attached to them by the law under which such offence is
punishable;

9) It must give particulars as to the time and place of the alleged offence and the person
against whom or the thing in respect of which the offence was committed.

Illustrations :

To understand the above principles, let us consider few illustrations:-

1) A is charged under Sec. 184 of the Indian Penal Code with intentionally obstructing
a sale of property offered for sale by the lawful authority of a public servant. The
charge should be in those words.

2) A is accused of cheating B at a given time and place. The charge must set out the
manner in which A cheated B.

3) A is accused of giving false evidence at a given time and place. The charge must set
out that portion of the evidence given by A which is alleged to be false.

4) A is accused of the murder of B at a given time and place. The charge need not state
the manner in which A murdered B.

5) A is accused of disobeying a direction of the few with intent to save B from

punishment. The charge must set out the disobedience charged and the law infringed.

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From :

The forms in which the charges are to be framed are set out in Form No. 32 of Second
Schedule.

When charge may be reamed :

In all warrant cases, whether tribal by a Court of Session or by a Magistrate, a formal

charge is required to be framed. Framing of charge is, however, not necessary in summons
cases. Similarly, it is not necessary to frame charge in summary trials.

At the stage of framing a charge, what the court has to consider is whether on a general
consideration of the materials placed before it, there is a prima facie case against the accused.
At that stage that court is not expected to inquire whether there is sufficient ground for
conviction of the accused.

In Union of India V/s Prafulla Kumar, after considering the leading cases on the point,
the Supreme Court laid down the following principles as to when the charge should be
framed:-

1) That the Judge while considering the question of framing the charges under Sec. 227
of the Code has the undoubted power to sift and weight the evidence for the limited
purpose of finding out whether or not a prime facie case against the accused has
been made out;

2) Where the materials placed before the Court disclose grave suspicion against the
accused which has not been properly explained, the Court will be fully justified in
framing a charge and proceeding with the trial;

3) The test to determine a prima facie case would naturally depend upon the facts of
each case and it is difficult to lay down a rule of universal application.

4) That in exercising his jurisdiction under Sec. 227 of the Code, the Judge which
under the present Code is a senior and experienced Court, cannot act merely as a
post-office or a mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the case and so on.

JOINDER OF CHARGES

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Section 218 to 222 of the Code provide for joinder of charges in one trial against the
same accused. Section 223 deals with joint trial against two or more accused persons.

Basic rule :
Sec. 218 lays down the basic rule relating to trial of offences and enacts that for every
distinct offence there must be a separate charge and a separate trial for each such charge.

Example :

A is accused of theft on one occasion, and of causing grievous hurt on another occasion.
A must be separately charged and separately tried for theft and causing grievous hurt.

Exceptions :

To the above general rule, the legislature has engrafted certain exceptions. If the case
falls in any of the exceptions, joinder of charges is permissible. The exceptions embrace cases
in which one trial for more than one offence is not considered likely to embarrass or prejudice
the accused in his defence.

Let us consider those exceptions :

1) Desire of accused :
Where the accused by an application in writing desires joint trial and the
magistrate is of the opinion that the accused is not likely to be prejudiced by such joint
trial, the magistrate may try together all or any number of charges framed against such
accused.

2) Three offences of same kind within one year :

When a person is accused of more offences than one of the same kind committed
within one year, whether in respect of the same person or not, he may be charged with
and tried at one trial for any number of them not exceeding three.

3) Offences in course of same transaction :

If, in one series of acts so connected together as to form the same transaction,
more offences than one are committed by the same person, he may be charged with and
tried at one trial for every such offence.

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4) Offences of criminal breach of trust or misappropriation of property connected

with falsification of accounts :
Where a person charged with one or more offences of criminal breach of trust or
dishonest misappropriation of property is accused of committing falsification of
accounts for the purpose of facilitation the commission of such offence, he may be
charged with and tried at one trial for every such offence.

5) Same act constitution different offences :

If the acts alleged constitute an offence falling within two or more separate
definitions of any law, the person accused of them may be charged with the tried at one
trial for each of such offences.

6) Same acts constituting one and also different offences :

If several acts of which one or more than one would by itself or themselves
constitute an offences, and constitute a different offence when combined, the person
accused of them may be charged with and tried at one trial for individual offences as
well as the combined offence.

7) Where it is doubtful what offence has been committed :

If a single act or series of acts is of such a nature that it is doubtful on facts
proved which of several offences has been committed; the accused may be charged with
one of such offences or with several offences in the alternatives.

Withdrawal of charges :

Section 224 deals with a situation for withdrawal of some charges in certain
circumstances. It states that when an accused is charged for two or more offences and is
convicted on one or more of them, the complainant or prosecution may with the leave of the
Court withdraw the remaining charge or charges. Similarly, the Court may on its own accord
stay the inquiry into or trial on such charges.

2.6 Processes to compel appearance and production of things :

Processes to compel appearance:

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The principal object of the Code of Criminal Procedure is to ensure fair trial to the
accused. It is, therefore, necessary and of utmost importance that the trial is conducted in his
presence so as to enable him to defend himself effectively.

Similarly, if the accused is found guilty at the conclusion of the trial, he has to undergo
the sentence which may be imposed on him. For that purpose also, he has to undergo the
sentence which may be imposed on him.

The presence of the accused can be secured by issuing a summons or by issuing warrant
for his arrest and detention.

Sections 61 to 90 deals with processes to compel appearance of the accused.

SUMMONS

Meaning :-

Though the expression “summons” has not been defined in the Code, it can be said to be
a form of process, issued by a court calling upon a person to appear before it.

A summons to an accused is an authoritative call asking him to remain present in court

for a particular purpose or to answer a particular charge.

Contents :

In order to be valid, a summons must be clear and specific and fulfill the following
requirements :

a) It must be in writing;
b) It must be in duplicate;
c) It must be signed by the presiding officer of the Court;
d) It must be sealed;
e) It must specify the offence alleged to have been committed;
f) It must state the place, date and time when the accused should appear.

The court issuing summons may direct the accused to appear in person or may permit
him to appear through his lawyer. If a court has no power to issue a summons, the person
served with the summons is not bound to obey it.

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Mode of services :

Sec. 62 to 69 prescribes various modes of service of summons and also provide by

whom the summons can be served.

Sec.62 states that every summons must be served by a police officer, or by an officer of
the Court issuing it or by a public servant. As far as practicable, summons should be served
personally on the person summoned by delivering or tendering a duplicate copy of the
summons. The person receiving the summons will sign a receipt of summons on the other
copy.

WARRANT
Meaning :

A warrant of arrest may be defined as an order issued under the seal and signature of
the Court and directed to a police officer authorizing him to arrest and bring the Court the
person named therein.

Contents :

In order to be valid, a warrant of arrest must fulfill the following requirements:

i) It must be in writing;
ii) It must be in duplicate;
iii) It must be signed by the presiding officer of the Court;
iv) It must be sealed;
v) It must specify the offence alleged to have been committed;
vi) It must state the place, date and time when the accused should appear.
vii) It must contain the name and designation of the police officer or other person
who is to execute it.

Such a warrant of arrest is deprivation of the personal liberty of the person arrested, it
should be issued in strictly compliance with law.

Kinds :-
Warrants are of different kinds.

They may be classified as :-

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(1) Search warrant;

(2) Distress warrant;
(3) Warrant of arrest etc.

Again warrant of arrest may be either Bailable and Non-Bailable.

Duration:

A warrant of arrest remain in force till it is executed or cancelled by the Court issuing it.
when a Warrant is returned unserved, the Court can enquire as to why it was not executed.

Mode of service :

Sec. 71 to 81 provide for the issue and execution of warrant and subsequent actions to
be taken.

Sec.71 provides for the issue of bailable warrants. It enacts that the court issuing such
warrant may, in its discretion, direct that if the person against whom such warrant is issued
executes a bond with sufficient sureties for his attendance before the Court at specified times;
he may be released from custody.

Processes to compel the production of things :

The person is possession of such things, documents or other materials should produce
them as and when production of such things, documents or other materials required. But if they
fail to produce, the competent court can pass necessary orders and issued directions to the
police for search and seizure of such documents and things.

The executive power of ‘search and seizure’ is a necessary concomitant of a welfare

State.

Sections 91 to 105 deals with processes to compel the production of things, documents
and other relevant materials.

Summons to produce things:

Sec. 91 provides that when a court or an officer in charge of a police station considers
that production of any document or other things is necessary or desirable for the purposes of
any investigation, inquiry or trial or other proceedings, the court may issue a summons or the
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officer may pass an order to the person in whose possession or power such document or thing
to produce it at a specified time and place.

2.7 Search :
Meaning :

According to dictionary meaning “search” means to try to find out something by seeing
or examining thoroughly and carefully. Search implies an expiratory examination or probing
into or seeking out something which is hidden, sealed, suspected and not open, exposed or
demonstrated.

It is an examination of a person’s body, property or other area that person would

reasonably be expected to consider as private, conducted by a law enforcement officer for the
purpose of finding evidence of a crime.

Search warrant :
A search may be described as a legal document or a written order issued by a magistrate
or a court authorizing a police officer or other law enforcement official authorizing him to
search a specified place or property.

When and by whom can be issued :

A search warrant may be issued in the following cases :

A. By Court :
A search warrant may be issued by a court –
1) Where the court has reason to believe that a person to whom a summons or order is
issued or requisition is addressed will not produced such document of thing;

2) Where such document or thing is not known to the court to be in the possession of
any person;

3) Where the court considers that the purpose of any inquiry, trial or other proceeding
will be served by a general search or inspection.

B. By State Government :

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A search warrant may be issued by the State Government – that a newspaper, book or
document contains any matter the publication of which is punishable under section 124 A
(Sedition), 153 A (promoting enmity between different groups) of I.P.C.

C. By Magistrate
A search warrant may be issued by magistrate – where a District Magistrate, Sub-
divisional magistrate or Magistrate of the first class has reason to believe that any person is
confined under such circumstances that the confinement amounts to an offence.

D. By Police Officer :

A search warrant may be issued by a police officer – where an officer in charge of a

police station or a police officer making an investigation has reasonable grounds to believe
that anything necessary for the purposes of an investigation into any offence cannot be
obtained without undue delay without such search.

2.8 Seizure :

Meaning :

According to dictionary meaning to “seize” means “take hold of forcibly” or “a forcible

taking of possession”. Thus, “seizure” can be defined as “taking of possession contrary to the
wishes of the wishes of the owner of the property”.

When seizure can be made:

Any police officer may seize any property alleged or suspected to have been stolen or
which may be found under the circumstances which create suspicion of the commission of any
offence.

Nature and scope :

Search and seizure is not a new weapon in the armory of those whose duty is to
maintain social security in the broadest sense.

The process is widely recognized in all civilized countries. No doubt seizure is a

restriction on the right of possession and enjoyment of the property seized.

Duty to report :

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When seizure is made by a subordinate officer, he must forthwith report that fact to the
officer in charge of a police station. A police officer in charge of a police station has to report
the seizure to the magistrate having jurisdiction.

Removal of things :

Sec. 101 provides for things to be taken to the court issuing the warrant. This provision
is a sequel of Sec. 78 and 79 which provide for execution of a warrant outside the jurisdiction
of the magistrate who issued the warrant of arrest. Unless there are good reasons, the
Magistrate who received who issued the warrant of arrest sent the articles to the court issuing
the warrant.

2.9 Preliminary Pleas to Bar Trial :

In every type of trial when the accused appears or is brought before the court, he may
raise certain preliminary pleas and object to his being tried by the court. It should not be
supposed that the accused person alone will be interested in such pleas; the prosecution may
also like to object to the trial, particularly when the question of jurisdiction or competence of
the court is involved.

Court without jurisdiction :

Any party to the criminal proceedings can take the plea that the court has no jurisdiction
to try the case.

According to Sec. 479, no judge or magistrate can try any case to or in which he is a
party or personally interested. If a trial is initiated in violation of this rule, an effective plea can
be taken against such trial. It may be noted that in case the posts of Chief Judicial Magistrate
and Additional District Judge are held by one person. Sec.193 does not apply and appeals from
the orders of the Chief Judicial Magistrate may lie to the Sessions Judge as the former is
subordinate to the Sessions Judge.

Accused person suffering from certain disabilities :

1) Sec. 303 confers an important right on the accused person to be defended by a

counsel of his choice; and if the accused has not sufficient means to engage a lawyer,
Sec. 304 requires the court under certain circumstances to assign a pleader for his
defence at the expense of the State.

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2) Where the accused person is of unsound mind and consequently incapable of making
his defence, the Code makes special provisions by Sec. 328 to 332 deal with such a
case and requires the court to postpone the trial and to resume it only after the
accused person has ceased to be of unsound mind.

Criminal proceedings barred by limitation of time :

For the first time in India, the Code has enacted some general rules incorporating the
law of limitation for taking cognizance of the crimes.

The major considerations for prescribing limitation for criminal cases are as follows :

1) As time passes the testimony of witnesses becomes weaker and weaker because of
lapse of memory and evidence becomes more and more uncertain with the result that
the danger of error becomes grater.

2) For the purpose of peace and repose it is necessary that an offender should not be
kept under continuous apprehension that he may be prosecuted at any time
particularly because with the multifarious laws creating new offences many people
at sometime of the other commit some crime or the other.

3) The deterrent effect of punishment is impaired if prosecution is not launched and

punishment is not inflicted before the offence has been wiped off the memory of
person concerned.

4) The sense of social retribution which is one of the purpose of criminal law loses its
edge after the expiry of a long period.

5) The period of limitation would put pressure on the organs of criminal prosecution to
make every effort to ensure the detection and punishment of the crime quickly.

Commencement of the period of limitation :

The period of limitation, in relation to an offender, shall commence :

a) on the date of the offence;

b) where the commission of the offence was not known to the person aggrieved by the
offence or to any police officer, the first day on which such offence comes to the
knowledge of such person or to any police officer, whichever is earlier;

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c) where it is not known by whom the offence was committed, the first day on which
the identity of the offender is known to the person aggrieved by the offence or to the
police officer making investigation into the offence, whichever is earlier;

Exclusion of time in certain cases :

1) In computing the period of limitation, the time during which any person has been
prosecuting with due diligence another prosecution, whether in a court of first
instance or in a court of appeal or revision, against the offender shall be executed.

2) Where the institution of the prosecution in respect of an offence has been stayed by
an injunction or order, then, in computing the period of limitation, the period of the
continuance of the injunction or order, the day on which it was issued or made, and
the day on which it was withdrawn, shall be excluded.
3) Where notice of prosecution for an offence has been given, the previous consent or
sanction of the Government or any other authority is required for the institution of
any prosecution for an offence, then, in computing the period of limitation, the
period of such notice.

Pleas of autrefois acquit and autrefois convict :

These pleas are taken as a bar to criminal trial on the ground that the accused person had
been once already charged and tried for the same alleged offence and was either acquitted or
convicted.

These rules or pleas are based on the principle that a man may not be put twice in
jeopardy for the same offence.

An analysis of Sec. 300 will bring out the following points :

1) The basic rule is that ‘a person who has once been tried by a court of competent
jurisdiction for an offence and convicted or acquitted of such offence shall, while
such conviction or acquittal remains in force, not be liable to be tried again for the
same offence’.

2) Even though the offence in the second trial is not “the same offence”, still the second
trial will be barred if it is based on the same facts for any other offence for which a
different charge from the one made against him.

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3) 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 in the former trial under Sec. 220(1).

4) A person convicted of any offence constituted by any act causing consequences

which together with such act, constituted a different offence form that of which he
was convicted, may be afterwards tried for such last-mentioned offence.

5) A person acquitted or convicted of any offence constituted by any acts may,

notwithstanding such acquittal or conviction, be subsequently charged with and tried
for any other offence constituted by the same acts.

6) A person discharged under Sec. 258 shall 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.

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UNIT – III

TRIAL PROCESS – II

3.1 Provisions as to Inquires and Trials :

The fundamental principle of law is that no person accused of any offence should be
punished unless he is held guilty of that offence by a competent criminal court.

Before holding the accused guilty, however, he must get full and fair trial in accordance
with well established rules or procedure, evidence, natural justice and fair play.

Sec. 266 to 399 deal with inquiries and trials, modes of taking evidence, examination of
witnesses, local inspection, refusal to attend court or to answer or to produce document, etc.,

Trial in Open Court :

Sec. 327 of the Code enacts that as a general rule, all criminal trials should be held in
open courts to which general public will have access. The presiding judge or magistrate may if
he thinks fit, in a particular case, order that general public or any particular person shall not
have access to the court.

Again, an inquiry into or trial of rape or similar offences shall be conducted in camera.
The presiding judge may, if thinks fit or on an application being made by either of the parties,
allow any particular person to have access to the court.

This provision is salutary. In contains a healthy rule that all criminal courts are open to
public at large. It is well settled that all cases brought before the courts, where civil, criminal or
other, must be heard in open courts. Public trial in open court is undoubtedly essential for the
healthy objective and fair administration of justice.

Expeditious Hearing :

Speedy trail is an essential ingredient of reasonable, fair and just procedure guaranteed
under Article 21 of the Constitution.

Sec. 309 of the code enacts that in every inquiry or trial, the proceedings shall be held as
expeditiously as possible and when the examination of witnesses has once begun, it shall be
continued from day to day until all the witnesses have been examined.

In several cases, the Supreme Court has deprecated the practice of not examining the
witness who is present in the Court.
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In State of U.P. V/s Shambhu Nath Singh, the Court Stated : “It is a sad plight in the
trial courts that witnesses who are called through summons or other processes stand as the
doorstep from morning till evening only to be told at the end of the day that the case is
adjourned to another day. The primitive practice must be reformed by the presiding officers of
the trial courts and it can be reformed by everyone provided the presiding officer concerned
has a commitment towards duty.

In Mohd. Khalid V/s State of W.B. the Supreme Court rightly observed that
unnecessary adjournments give a scope for a grievance that the accused persons get a time to
get over witnesses. Whatever be truth in the allegation, the fact remains that such adjournments
lack the spirit of Sec. 309 of the Code.

Conduct of prosecution :

Sec. 301 states that the public prosecutor or assistant public prosecutor in charge of a
case may appear and plead without any written authority before any court. If any private
person engages his pleader, such pleader will act under the direction of the public prosecutor or
assistant public prosecutor.

A pleader engaged by a party may with the permission of the court submit written
arguments after the evidence in the case is closed.

Any magistrate inquiring into or trying a case may permit the prosecution to be
conducted by any person other than a police officer below the rank of inspector, provided such
police officer has not taken part in investigation into the offence in respect of which the
accused is being prosecuted.

Right to defebd :

Any person accused of an offence before a criminal court may, as of right, be defended
by a pleader of his choice.

In a trial before Court of Session, if the accused is not represented by a pleader and it
appears to the court that the accused has not sufficient means to engage a pleader; the court
shall provide a pleader to the accused for his defence at the expenses of the state.

The State Government may extend this facility to the accused of any class of trials
before other courts in the state.

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Local Inspection :

Section 310 of the Code empowers a judge or magistrate after notice to the parties to
visit a place of offence or any other place which in his opinion necessary to view for
appreciating the evidence.

This power can be exercised at any stage of the inquiry or trial. Such power may,
however, be exercised if the following conditions are satisfied;

1) It must have been necessary to appreciate the evidence;

2) Notice must have been given to the parties;

3) A memorandum of relevant facts observed at such inspection must have been

recorded without delay.

Examination of witnesses :

a) Evidence to be taken in presence of accused:

Fair trial requires that before a person is held guilty at criminal trial, he must be afforded
opportunity to defend him. One of the requisites of this fair trial is examination of witnesses
and recording of evidence in the presence of the accused.

Section 273 of the Code requires that all evidence taken in the course of the trial or
other proceeding shall be taken in the presence of the accused.

It has been held by the Supreme Court that the term “presence” in Section 273 does not
mean actual physical presence in the court. Recording of evidence of prosecution witnesses by
video-conferencing, therefore, is permissible.

Where the accused is not of unsound mind but does not understand proceedings the
court may proceed with the inquiry or trial but if such proceedings result in conviction, the
proceedings shall be forwarded to the High Court and the High Court shall pass such order
thereon as thinks fit.

b) Recording of evidence :

i) Summons Cases :
In all summons cases tried before a magistrate, the magistrate shall make a
memorandum of substance of the evidence of each witness. But if the magistrate is unable to
make such memorandum himself, he shall cause it to be made after recording reasons for it.
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ii) Warrant cases :

In all warrant cases tried before a magistrate, the evidence of each witness shall be taken
down in writing either by the magistrate himself or by his dictation in open court.

iii) Trial before Court of Session:

In all trails before a Court of Session, the evidence of each witness shall be taken down
in writing either by the presiding judge himself or by him dictation in open court, or under his
direction and superintendence by an office of the court.

iv) Language :

In all warrant cases and in a trial before a court of session, if the witness given evidence
in the language of the Court, it shall be taken down in that language. Where evidence is taken
down in a language other than the language other the language of the court, a true translation
thereof in the language of the court shall be prepared as soon as practicable.

v) Completion of evidence :

In warrant cases and in a trial before a court of session, the evidence of each witness
shall be read over to him in the presence of the accused or him pleader.

vi) Demeanour :

Sec. 280 provides that when a presiding judge or magistrate has recorded the evidence
of a witness, he shall also record such remarks as he thinks material respecting the demeanour
of such witness whilst under examination.

vii) Interpretation :

When the services of an interpreter are required by any criminal court for interpretation
of any evidence of statement, he is bound to state true interpretation of such evidence or
statement.

viii) Record in High Court :

Every High Court may, by general rule, prescribe the manner in which the evidence of
witnesses and the accused shall be recorded in cases coming before it.

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c) Examination of witness by court :

In the administration of criminal justice, the court has also an important role to play.
Sec. 311 enable the court at any stage of inquiry, trial or other proceeding to summon any
person as a witness.

Section 311 confers very wide powers on the court to act in aid of justice. The primary
object of the proviso is to enable the court to arrive at the just decision in the case.

The section is in two parts.

The first part is discretionary while the second part is mandatory.

d) Expenses :

Administration of criminal justice is the duty of the State. It is therefore, expected of the
state to pay expenses of the complainant and witnesses.

Section 312 enables the court subject to the rules framed by the State Government to
direct the government to pay reasonable expenses to any complainant or witnesses attending to
any inquiry, trial or other proceeding.

e) Examination of witnesses on commission :

It is a cardinal principle of criminal jurisprudence that all important witnesses on whose

testimony the case against the accused person rests must be examined in open court in his
presence by allowing him to challenge the evidence of such witnesses by way of cross-
examination.

It also enables the presiding officer to have the advantage and opportunity of hearing the
witnesses and noting their demeanour.

Examination of accused :

As observed by the Law Commission, Sec.313 of the code is “one of the most important
Sections in the Code”. It requires the court to examine the accused after the evidence for the
prosecution is over with a view to enabling him to explain any circumstances appearing in the
evidence against him. Section 313 of the Code reads thus: Power to examine the accused.

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Object :

The primary object of Sec. 313 of the Code is to afford an opportunity to the accused to
explain circumstances appearing in the prosecution evidence against him. Sec 313 has been
enacted to have a ‘direct dialogue’ between the court and the accused.

3.2 Trial in Special Cases :

In certain circumstance, however, special course requires to be adopted;

a) Transfer of case by magistrate;

b) Persons liable to be tried by court-material; when any person is charged with an

offence for which he is liable to be tried by criminal court as well as by a court-
martial, the magistrate before whom such person is brought may hand over the
accused to the commanding officer for the purpose of being tried by a court martial.

c) Trial before High Court: When an offence is tried by the High Court, shall observe
the same procedure as a court of session.

3.3 Judgment
Sections 353 to 365 deals with judgments in criminal trials. After the evidence led by
the prosecution and defence is over and the arguments are heard, the court will conclude the
trial by pronouncing judgment.

Sections 366 to 371 lays down the procedure to be followed for confirmation by the
High Court of death sentence awarded by a court of session. It seeks to ensure that the entire
evidence must be placed before the High Court for scrutiny and the death sentence shall not be
executed until it is confirmed by the High Court.

The legislature has thus made the High Court the final safeguard of life and liberty of
the subject in cases of capital sentence. Very wide powers have been conferred on the High
Court to prevent any possible miscarriage of justice in such case.

Meaning :

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The expression “Judgment” is nowhere defined in the Code. But it can be said to be the
final decision of the court in a trial either convicting or acquitting the accused. It is an order of

the court arrived at after due consideration of the evidence and arguments of the parties.

It is final operative act formally declared in open court intimated to the parties and to
the world at large by formal pronouncement or delivery in open court. Every judgment shall be
written in the language of the court.

Pronouncement :

In every trial in any criminal court of original jurisdiction, the judgment shall be
pronounced in open court by the presiding officer immediately after the termination of the trial
or at some subsequent time of which notice shall be given to the parties of their pleaders. It can
be pronounced by delivering the whole judgment, or by reading out wholly or by reading out
the operative party thereof.

Pronouncement of judgment is a judicial act which must be performed in a judicial way

and in accordance with the provisions of Sec. 353. Till then it is inoperative as a judgment. It is
nothing more than the private expression of an opinion by the judge.

Delay in delivering judgment :

Though the Code does not prescribed any time limit for pronouncing judgment after the
trial is over, the expression ‘immediately’ in Sec.354 suggests that there should not be long gap
between conclusion of the trial and pronouncement of judgment.

In Anil Rai V/s State of Bihar, the Session Court convicted nine persons in 1991.
Their appeals were heard by the High Court and judgment was reserved in 1995. In the
meanwhile one convict died in jail. The judgment was pronounced after about two years in
1997.

Contents:

Every judgment delivered by a criminal court must comply with the following
requirements:

(i) It must be in writing;

(ii) It must be in the language of the court;

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(iii) It must be dated and signed by the judge;

(iv) It must be pronounced in open court;

(v) It must contain the point or points for determination, the decision thereon
and the reasons for the decision;

(vi) It must specify the offence of which and the section of the Indian Penal
Code or other law under which the accused in convicted and the
punishment to which he is sentenced;

(vii) When the conviction is under the I P C and it is doubtful under which of
the two sections, or under which of the two parts of the same section the
offence falls, the court must distinctly express the same and must pass
judgment in the alternative.

(viii) When the conviction is for an offence punishable with death or in the
alternative with the imprisonment or in the alternative with life
imprisonment or with imprisonment for a term of years, the judgment
must state the reasons for the sentence awarded.

(ix) When the conviction is for an offence punishable with imprisonment for
one year or more, but the court imposes a sentence for a term of less than
three months, it must record reasons for awarding such sentences;

(x) When any person is sentenced to death, the sentence must direct that her
be hanged by the neck till his or her is dead.

Translation:

The original judgment must be filed with the record of the proceedings. Where the
judgment is recorded in a language different from that of the court and if the accused requires,
translation of the judgment must be added to the record.

Supply of Copy

1. To accused :

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Where the accused is sentenced to imprisonment, immediately after the pronouncement

of the judgment, a copy should be given to him free of cost. On the application of the accused,
a certified copy of the judgment, or when he so desires, a translation in his own language if
practicable, or in the language of the court should be given to him without delay.

2. To person affected :

Any person affected by the judgment or order may apply for a copy of such judgment or
order. On payment of prescribed charges, a copy should be supplied to him. A Court may, for
special reasons, supply to such person a copy of judgment or order free of cost.

3. To other persons :

The High Court may, by rules provide for giving copies of any judgment or order to any
person not affected thereby on payment of such fees and subject to such conditions as the High
Court may provide.

4. To District Magistrates :

In cases tried by the Court of Session or Chief Judicial Magistrate, the court or the
Magistrate, as the case may be should forward a copy of the findings and sentence to the
District Magistrate within whose local jurisdiction the trail was held.

5. For record:

The original judgment must be filed with the record of the proceedings.

Judgments by Metropolitan Magistrates:

Metropolitan Magistrates are not required to write a detailed judgment as provided in

Sec. 353-354.

They may write a judgment in an abridged form recording following particulars;

(i) Serial number of the case;

(ii) Date of the commission of the offence;

(iii) Name of the complainant;

(iv) Name and particulars of the accused;

(v) Offence complained of or proved;

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(vi) Plea of the accused and his examination;

(vii) Final order;

(viii) Date of order;

(ix) When the order is appeal able, brief statement of reasons for the decision;

Punishments:

Modern penology regards crime and criminal as equally material when the question of
sentence has to be considered. It turns the focus not only on the crime but also the criminal
and seeks to personalize the punishment so that the reformist component is a must operative as
the deterrent element.

1. Death penalty:

Sec. 354(3) enacts that when the conviction is for an offence punishable with death, or
in the alternative, with imprisonment, the judgment must state special reasons if sentence of
death is to be awarded.

2. Sentence of imprisonment :

Normally, all penal laws prescribe the maximum term of imprisonment which can be
imposed on the offender. In certain statutes and in certain circumstances, however, the
minimum term of imprisonment is also provided.

3. Payment of fine:

Fine is one of the punishments recognized under the I P C as also under other Acts.
Payment of fine may be the only punishment provided by law for an offence or it may be in
addition or as an alternative to imprisonment.

4. Compensation:

Sec. 357(1) empowers the court to award compensation or cost to the complainant out
of the fine imposed on the accused. Sec. 358 enables magistrates tow award compensation not
exceeding Rs. 1,000/- against a person who causes another to be arrested by a police officer on
insufficient grounds.

5. Costs :

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Sec. 357 and 359 authorize the court convicting the accused of a non-cognizable offence
to pay to the complainant in whole or in part, the court incurred by him in addition to the fine
or other penalty imposed.

6. Release on probation :

Sec. 360 is an important provision of a beneficent nature. It enables the court in certain
cases to release the accused on probation of good behavior. It deals leniently with first
offenders not guilty of serious offences.

It provides that where any person no under twenty one years of age is convicted of an
offence punishable with fine only or punishable with imprisonment for not more than seven
years or where any person under twenty one years of age or any woman is convicted of an
offence not punishable with death.

3.4 Appeals, Reference and Revision

APPEALS

Sections 372 to 394 deals with appeals.

It is no doubt true that the Code has made all provisions for ensuring a fair trial. But it
cannot be forgotten that every human being is fallible and a judge or magistrate is also a human
being. Hence, it must be conceded that a right of at least one appeal except in petty cases
should e treated as integral part to fair procedure, natural justice, basic to civilized
jurisprudence and liberty within the meaning of Art.21 of the Constitution.

Meaning

The term “appeal” has not been defined in the Code. According to the dictionary
meaning, an appeal is a complaint or grievance to a superior court for reconsideration or
review of a decision, verdict or sentence of a lower court.

Essentials:

Every appeal includes three basic elements:

(i) A decision (usually judgment of a court);

(ii) A person aggrieved;

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(iii) A reviewing authority (appellate court);

Who may file appeal?

Sections 373 to 380 enumerate person who can file appeals against a judgment or
order passed in some proceedings by criminal courts.

Section 374 deals with appeals from convictions. It provides that a person convicted on
a trail held by a High court in its extraordinary original criminal jurisdiction can file appeal to
the Supreme Court.

Any person convicted by a Session Judge or an Additional Sessions Judge or by any

other court imposing sentence of more than seven years may file appeal to the High Court.

Where a High Court on an appeal reverses an order of acquittal of the accused person an
convicts him and sentences him to death or to imprisonment for life or to imprisonment for ten
years or more, he may file appeal to the Supreme court.

Section 377 enables the State or the Central Government to prefer an appeal for
enhancement of sentence. It states that the State Government may in any case of conviction on
a trail held by any court other than a High Court, direct the Public Prosecutor to present an
appeal to the Court of Session or to the High Court against the sentence on the ground of its
inadequacy.

Section 378 provides for filing an appeal in case of acquittal. It empowers the District
Magistrate of the State Government to direct the Public Prosecutor to file an appeal in the
Court of Session or in the High Court from an order of acquittal.

Who cannot file appeal?

Where the cognizance of an offence has been taken on police report, an appeal of
acquittal can be filed only by the State. An appeal by complainant is not maintainable.

No doubt, an offence is an invasion of public right and wrong against the society and
hence, it is the duty of the State as a custodian of social interest of the community to prosecute
the offender.

But the ultimate sufferer is a victim or an individual. It is, therefore, his right to take
appropriate proceedings against the wrongdoer. It is difficult to agree with view that a victim
cannot file an appeal against an order of acquittal passed by a court.
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Withdrawal of appeal:
There is a conflict of opinion as to the right of the appellant to withdraw an appeal filed
by him. There is no provision in the Code for withdrawal of appeal filed by the Government or
by the party. It can, however, be said that before an appeal is admitted, appellant may
withdraw the appeal since a right of appeal is privilege conferred on the appellant and he is at
liberty to exercise or waive that right.

3.5 Reference :

Section 395 to 405 deals with two important topics:

(i) Reference.

(ii) Revision.

Sec. 395(1) provides that where any court is satisfied that a case pending before it
involves a question as to the validity of any act. Likewise, a Court of Session or a
Metropolitan Magistrate may also make reference for the decision of the High Court any
question of law arising in a case pending before the court.

Object:

The Legislature has provided a special procedure for bringing a matter before the High
Court when a case involves a question as to the validity of an Act, Ordinance or Regulation and
determination of that question is necessary for the disposal of the case.

The underlying object of the provision of reference is that the validity of laws possibly
in conflict with the Constitution should be decided by the highest court in the State
authoritatively and quickly.

Conditions :

In order that a reference may be made, the following conditions must be satisfied;

(i) The Court must be satisfied that the question of validity of an Act, ordinance of
Regulation or any provision contained therein is raised in a case pending before it;

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(ii) The court must also be satisfied the determination of such question is necessary for
the disposal of the case;

(iii) The court must be of the opinion that such Act, Ordinance or Regulation is invalid or
inoperative but has not been so declared by a superior court.

Procedure :

A reference under Sec. 395 can be made whenever and wherever the validity of an Act,
Ordinance or Regulation is raised or a question of law has arisen in appending matter, as the
case may be. A court making reference may, pending the decision of the High Court on such
reference commit the accused to jail or release him on bail.

The High Court will pass such order on reference as it thinks fit and will send a copy of
it to the court by which the reference was made and the court will dispose of the case in
conformity with the order of the High Court. The High Court may also direct by whom the
costs of such reference to be paid.

3.6 Revision :

Sections 395 to 405 deals with revisional jurisdiction of certain courts.

Sections 397 to 401 of the Code empower Sessions Judges and High Courts to exercise
revisional jurisdiction by calling for and examining the record of an inferior court for the
purpose of satisfying as to the legality or propriety of any finding, sentence or order recorded,
imposed or passes by such inferior court.

Section 398 enables the revisional court to order inquiry in certain circumstance.

Section 402 authorises the High Court to transfer a revision application pending before
it to the Sessions Judge or to withdraw a revision pending before the Sessions Judge with a
view to avoiding conflicting orders.

Section 405 makes provision for the revisional court’s order to be certified to lower
court.

Meaning :
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According to dictionary meaning, “to revise” means “to examine and improve or amend
something”, “to reconsider and alter”, “to look again or repeatedly at”, “to go through carefully
and correct as and when necessary”.

Object :
The primary object of the revisional jurisdiction is to confer upon superior criminal
courts a kind of paternal or supervisory jurisdiction in order to prevent miscarriage of justice
arising from misconception of law, irregularity of procedure, neglect of proper precautions or
apparent harshness of treatment, which has resulted, or on the other hand, in some
under5served hardship to individuals.

Nature and Scope :

Section 397 empowers the High Court and the Session Judge to call for and examine the
record of any proceeding before any inferior criminal court situate within it or his local
jurisdiction for satisfying itself or himself as to the correctness.

Sections 398 to 401 empower the revision court to pass appropriate order to remove or
to correct defects, cute illegalities or irregularities and to prevent miscarriage of justice.

Section 399 provides that the Sessions Judge may exercise all or any the powers which
may exercised by the High Court under Sec. 401(1).

A right of appeal is a statutory right which has got to be recognized by the courts, and
the right of appeal where one exists, cannot be denied in exercise of the discretionary power
even of the High Court. Since the revisional power does not entitle a litigant to get a relief, a
revisional court not bound to entertain a revision application or having entertained, to grant
relief to the applicant.

Conditions :

In order that a revisional jurisdiction to be exercised, the following conditions must be

satisfies:

1) The proceedings must be in a criminal court;

2) Such court must be an inferior court;

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3) Such court must be situated within the local limits of the jurisdiction of the
revisional court;

4) The revisional court must have called for the record to satisfy itself about the
correctness, legality or propriety of any finding, sentence or order recorded or
passed by such inferior court;

5) The impugned order must not be interlocutory;

6) The order must not be appeal able.

Who may apply :

Sec. 401 states as to who may apply to a High Court or to a Sessions Judge for invoking
revisional jurisdiction of the court.

As a general rule, an application for revision can be made by a party to the proceeding;
eg., the accused, the State or the complainant, as the case may be. It can also be made by any
person aggrieved. A person can be said to be aggrieved if the impugned order operates against
him.

From or revision :

No particular form of revision is prescribed in the Code. It is obvious because revisional

powers can be exercised either at the instance of an aggrieved party or even suo motu by the
revisional court.

3.7 Security for Keeping peace and Good Behaviour :

Security for Keeping Peace :

Sections 106 to 124 deals with Security for keeping the peace and good behaviour make
elaborate provisions for maintenance of law and order.

The preventive magisterial jurisdiction undoubtedly constitutes a powerful adjunct to

executive authority, salutary if used in moderation and over a sufficiently extended period, the
though harmful if resorted to immoderately, indiscriminately and simultaneously in a large
number of cases.

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A. On Conviction :

(i) Nature and Scope :

Sec. 106 provides that on conviction of certain offences, the court may, at the
time of passing sentence on the person convicted, if of the opinion that it is
necessary to take a bond for future good behaviour, order him to execute a bond,
with or without sureties, for keeping the peace for a period not exceeding three
years.

(ii) Object :
The section is aimed at persons whose past conduct has proved dangerous to
the public and is intended to secure public tranquility and peace. Dealing with the
powers conferred on the Executive.

(iii) Conditions :
An order directing a person to execute a bond can be made only if the
following conditions are satisfied:
a) A person must have been convicted;
b) Such conviction must have been by a Court of Session or by a Magistrate of the
First Class;
c) Such conviction must have been for any of the offences mentioned in the section;
d) The court must be of the opinion that it is necessary to take security from such
person.

(iv) Form :
The bond to be taken under this section should be in accordance with Form
No. 12 of Schedule II.

B. In Other Cases :

(i) Nature and Scope :

Sec. 107 provides for taking security for keeping the peace in other cases. It
enables an Executive Magistrate to make an order calling upon a person to show
cause why he should not be ordered to execute a bond with or without sureties for
keeping the peace for such not exceeding one year as the magistrate thinks fir to fix.

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(ii) Object :
Sec. 107 is preventive and not punitive. It is not intended to punish a person
for past offences but to prevent him from committing breach of peace or disturb
public tranquility.

(iii) Conditions :
Proceedings under Sec. 107 can be initiated only if the following requisites
are present;
a) The Executive Magistrate must have received an information that a person
is likely to commit a breach of peace or disturb public tranquility;
b) The place of the apprehended breach of peace or disturbance or the person
who is likely to commit such act must be within the local limits of
jurisdiction of such magistrate.
c) The magistrate must be of the opinion that there is sufficient ground to
take security from such person.
(iv) Notice :
Before directing a person to execute a bond for keeping the peace under Sec.
107, the magistrate will have to issue a show cause notice as to why he should not be
ordered to execute such bond. An order without issuance of such notice is illegal.
Again, such notice must contain definite particulars and should not be vague.

3.8 Security for Good Behaviour :

Sec. 106 and 107 deal with the power to require security to keep the peace. Sections
108, 109 and 110 provide for taking security for good behaviour from person circulating
seditious matters or matters amounting to intimidation or defamation of a judge, from vagrants,
suspected persons and habitual offenders.

From whom security may be taken :

Security for good behaviour can be taken from the following persons:

1. Persons circulating seditious matters;

2. Suspected persons;
3. Habitual offenders;

Procedure :

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Section 111 to 124 provides procedure for taking security for keeping peace or good
behaviour.

a) Notice :
When a magistrate acting under Sec. 107, 108, 109 or 110 deems it necessary to
require any person to show cause, he must pass a written order against such person.
Such order should contain;

(i) The substance of the information;

(ii) The amount of the bond to be executed;
(iii) The term for which such bond should remain in force;
(iv) The number, character and class of sureties required.

When such person is not present in court, a summons will be issued requiring
him to appear. When such person is in custody, a warrant will be issued directing the
officer in whose custody he is, to bring him before the court.

Every summons or warrant must be accompanied by a copy of the preliminary

order and it must be served on the person concerned. Sec. 115 is an enabling provision.
It states that the magistrate may, if he sees sufficient cause, dispense with personal
attendance of the person called upon to show cause by permitting him to appear by
pleader.

b) Inquiry :
Sec. 116 makes provision for inquiry after the notice is served on the person
concerned. The magistrate must proceed to inquire into the truth or otherwise of the
information on which proceedings are started by order under Sec. 111 is read over or
explained to the person present or brought before the court.

Such inquiry must be made in accordance with the rules prescribed for
conducting trails and recording evidence in summons cases. Such inquiry must be
completed within six months. It can, however, be continued beyond that period for
special reasons to be record in writing. After commencement and before the completion
of the inquiry the magistrate may also for interim bond if immediate measures are
necessary for prevention of breach of the peace or disturbance of public tranquility or
commission of any offence or for prevention of public safety.

c) Order :
Sec. 117 provides for the final order to be passed. It enacts that if upon inquiry
the magistrate finds that it is necessary to demand security for keeping the peace or
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good behaviour, the person concerned will be directed to execute a bond with or without
sureties.

Sec. 119 lays down that the period mentioned in the bond will commence from
the date of the final order unless a subsequent date is fixed by the magistrate.

d) Form :
The bond for security for good behaviour should be according to Form No. 13 of
Schedule II.

e) Breach of bond :

Effect :

The person directed to execute a bond to keep the peace or to be of good

behaviour should not commit breach of the peace nor do any act which may result into
such breach. Sec. 121 empowers that magistrate to refuse to accept any surety offered,
to reject any surety previously accepted or to inquire into the fitness of a surety.

Sec. 122 provides that if any person ordered to give security fails to do so, he
will be committed to prison. Similarly, if a person executing a bond commits breach
thereof, he can be arrested and detained in prison. Sec. 123 enables the District
Magistrate or Chief Judicial Magistrate, as the case may be, to release with or without
conditions person imprisoned for failure to give security if he is of the opinion that there
is no longer and hazard to the community or to any other person.

Sec. 124 deals with the procedure when a surety is discharged. When a
magistrate rejects a surety as unfit person or discharges him on his own application, he
shall cancel the bond executed by such person and direct the person concerned to given
fresh security.

f) Appeal :

Any person who has been ordered to give security for keeping the peace or for
good behaviour; or who is aggrieved by an order refusing to accept or rejecting a surety,
can file an appeal against such order.

3.9 Maintenance :
Sections 125 to 128 deals with maintenance of wives, children and parents. Though the
provisions are exotically of civil nature, they have been included in the Code with a view to
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affording speedy, cheap and effective remedy against starvation to wives, children and parents,
who are unable to maintain themselves.

Meaning :

The term ‘maintenance’ has not been defined in the Code. According to dictionary
meaning, maintenance means food, clothing and lodging. But the word should not be narrowly
construed. It would include means of subsistence, supply of necessaries and conveniences, aid
support, assistance, the support which one person who is bound to extend, gives to another for
his/her living.

Maintenance varies according to the position and status of a person. The maintenance
would also cover minimum amount for education of a child, for its progress and development.

Nature and scope :

Section 125 of the Code enacts that if any person having sufficient means neglects or
refuses to maintain his wife, children or parents, unable to maintain themselves, a judicial
magistrate, first class may order such person to pay maintenance to them at such rate as he
deems fit.

As discussed earlier, the Code of Criminal Procedure is a procedural law which lays
down procedure for investigation, inquiry and trial of various offences punishable under the I P
C and other substantive laws. But it is not wholly procedural.

Section 125 constitutes an exception which is a substantive provision and confers right
of maintenance on certain person in certain circumstances.

Summary remedy :

Sec. 125 provides a summary remedy. It does not finally determine the rights and
obligations of the parties thereto. The section does not confer an absolute right on neglected
wives, children or parents to bet maintenance against their husbands, fathers or sons not does it
impose an absolute liability on the latter to support their wives, children or parents in all
circumstances.

Object :

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The provision of Sec. 125 is aimed at preventing starving, destitution and vagrancy to
dependents. The principal object of this section is to secure relief to deserted and destitute
wives, discarded and neglected children and disabled and helpless parents.

Who may claim maintenance ?

Under Sec. 125 (1), the following persons may claim maintenance :

(a) Wife :

The wife who is unable to maintain herself can claim maintenance. She may be
major or minor. But the expression “wife” means only a legally married wife. In the
absence of legal and valid marriage, the mere fact that the parties had stayed together as
husband and wife to the knowledge of general public does not entitle an applicant to
maintenance.

Thus, a second wife cannot claim maintenance from her husband. A woman in a
second marriage is not entitled to claim maintenance as in law a second marriage during
the subsistence of the first marriage is not legal and valid. Such a woman, though she is
de facto the wife of the man, in law is not his wife.

(b) Children :

A minor child, if it is unable to maintain itself, is entitled to claim maintenance

form the father. It is altogether immaterial whether such a child a legitimate or
illegitimate, male or female, marriage or unmarried. “Minor” means a person who has
not attained the age of majority under the Indian Majority Act, 1875.

(c) Parents :

There was no provision for the maintenance of parents under the Code of 1898.
Pursuant to the recommendation of the Joint Committee, a provision has been made in
the present Code for maintenance of parents.

Under Sec. 125 (1)(d) provides that a person having sufficient means has to
maintain his father or mother, unable to maintain himself or herself. Considering the

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object of such provision, the expression ‘father’ will include ‘adoptive father’ as well as
‘step father’ and ‘mother’ will include ‘adoptive mother’ as well as step mother.

Against whom maintenance can be claimed?

On bare reading of Sec. 125(1), a father, or a husband or a son, as the case may be is the
only person who can be held liable to pay maintenance to his children, or to his wife or to his
parents.

As per the decision the Supreme Court in Vijaya Manohar V/s Kashirao Rajaram,
even a married daughter is under obligation to maintain her parents. But a mother is not liable
to maintain her children. Similarly, a father-in-law cannot be ordered to pay maintenance to his
daughter-in-law Sec. 125(1).

Conditions :

Before maintenance can be granted under Sec. 125, the following conditions must be
satisfied;

(i) The applicant must be unable to maintain himself or herself, as the case may be;
(ii) The opponent must have sufficient means to maintain the applicant;
(iii) The opponent must have refused or neglected to maintain the applicant;
(iv) If the applicant if wife –
a) She must not be living in adultery;
b) She must not have refused to live with her husband without sufficient
reasons;
c) She must not be living separately by mutual consent;

Defences :

An application for maintenance filed under Sec. 125 can be contested by the opponent
on various grounds.

It can be argued that the conditions on which such maintenance can be claimed are not
present and hence, the application requires to be dismissed.

Where such application is made by the wife, the husband can contend that :-

a) She is not his wife;

b) She is living in adultery;
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c) She refuses to live with him without sufficient reason;

d) Husband and wife an living separately mutual consent;
e) An order has been made by a competent civil court to that effect;
f) After the divorce, such woman has remarried;
g) At the time of divorce, the wife has received from her husband, the whole
of the sum payable to wife under any customary or personal law
applicable to the parties;

Where such application is made by a major son, the father can contend that the major
son is not unable to maintain himself owing to some physical or mental abnormality or injury.

Amount of maintenance :

The quantum of maintenance is in the discretion of the magistrate and it is to be fixed

having regard to all circumstances of the case. In fixing the quantum of maintenance, the
magistrate will consider the status of parties, the needs and necessities of the applicant, paying
capacity of the opponent, earning capacity of the applicant, etc.,

Sec, 125 as originally enacted fixed ceiling of Rs. 500/- per month. By an amendment
Act of 2001, however, the ceiling was removed.

Cancellation :

Reading Sec. 125 and 127 together, an order of maintenance can be cancelled in the
following circumstances :

a) When the wife is living in adultery;

b) When the wife refuses to live with her husband without sufficient reason;
c) When the wife and husband are living separately by mutual consent;
d) When the wife after divorce has remarried;
e) When the wife has been divorce and she has received whether before or after
such divorce the whole of the sum payable to her under any customary or
personal law applicable to parties;
f) When the wife has obtained divorce from her husband and she has voluntarily
surrendered her right to maintenance;

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UNIT – IV

MISCELLANEOUS

4.1 Compounding of offences and plea bargaining :

Meaning :

State simply, composition is an arrangement or settlement of differences between the

injured party and the person against whom the complaint is made.

The compounding of an offence presupposes that an offence has been committed but the
victim is willing either to forgive it or to accept some form of solatium as sufficient
compensation for what he has suffered.

Doctrine Explained :

Every crime is considered to be an offence against the society as a whole and not only
against an individual even though only an individual has suffered thereby. It is, therefore, the
duty of the state to take appropriate action against the offender.

But the offences are of different types. Certain offences are considered very serious
wherein compromise or settlement is not permissible.

Other offences, on the other hand, are not treated so serious and the parties are allowed
to settle such disputes by a compromise. It is known as compounding of offences.

The compounding of an offence signifies that the person against whom an offence has
been committed has received some gratification to act as an inducement for his abstaining from
proceeding further with the case.

Nature and scope :

Sec. 320 of the Code enumerates offences which are compoundable. The offences
specified in the table under Sec. 320 (1) are compoundable by the parties without the leave of
the Court. Sec. 320(2) is compoundable only with the leave of the Court. Sec. 320 (3) are
clarifies that when an offences is compoundable, the abetment of or attempt to commit such
offence is also compoundable.

As observed by the Supreme Court in Biswabahan V/s Gopen Chandra, the principle
behind the scheme seems to be that wrongs of certain classes with affect mainly a person in his

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indicidual capacity or charger may be sufficiently redressed by composition with or without the
leave of the court as the case may be.

Who may compound :

Normally, the person who is injured by an offence may abstain from continuing with the
prosecution. It is, therefore, not material as to who has filed a complaint. An offence can be
compounded by the person specified in the section although a formal complaint might have
been filed by some other person.

Thus, if A is cheated and the complaint might have been filed by B, wife of A, it is A
who is cheated can compound the offence and not B who has filed the complaint. Likewise, a
husband might be the complainant in a defamation case of his wife alleging her to be unchaste
woman, but it is only the wife who has right to compound the offence.

When offence may be compounded :

An offence which is compoundable without the permission of the court, may be

compounded at any stage even before filing of a complaint. An offence which is compoundable
with permission of the court can be compounded with such permission at any time before the
judgment is pronounced.

Where the accused has been committed for trial to a Court of Session, no composition
can be allowed without the leave of the court to which he is committed. Where the accused is
tried and convicted of an offence which is compoundable and the appeal is pending, no
composition can be allowed without the leave of the appellate court. A High Court or Court of
Session as a Court of revision may grand permission to compound an offence.

Power and duty of court :

The compounding of an offence becomes effective only if it is legal and valid. The court
must, therefore, be satisfied that the compromise is lawful and not made under coercion, duress
or similar other circumstances vitiating the compromise.

Where a compromise is alleged by one party and denied by the other, it is the duty of
the magistrate or the court before acquitting the accused to hold inquiry into the truth of the
alleged compromise.

It is the duty of the magistrate or the court in each case to decide whether or not to allow
the compromise. The nature of the offence alleged, circumstances under which it was alleged
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to have committed, relationship between the parties, the possibility of the parties living in
peace and harmony after composition, the stage at which comprising is sought, etc., are some
of the matters to be considered in deciding whether permission should be granted.

Effect of Composition :

As soon as the offence is compounded, it results in an acquittal even if no formal order

of acquittal is passed. Hence, prosecution for the same offence or for any other offence
included in the compounded offence is barred. Apart from acquittal composition of an offence
bars a suit for damages on the facts constituting the original offence.

Compounding of an offence, however, does not mean that no offence at all had been
committed. Hence, compromise with one accused and consequential acquittal does not absolve
the other accused of the same offence.

4.2 Plea Bargaining :

Sections 265 A – 265 : as inserted by the Code of Criminal Procedure (Amendment)
Act, 2005 deals with “Plea Bargaining”.

To reduce delay in disposal of criminal trials and appeals as also to alleviate sufferings
of under trial prisoners, Law Commission proposed to introduce the concept of Plea-
bargaining.

Malimath Committee also endorsed the recommendation of Law Commission. It

provides for pre-trial negotiations between the prosecuting agency and the accused and the
latter agrees to plea guilty in lieu of certain concessions by the prosecutor.

Though plea – bargaining has been deprecated by the Apex Court of the Country in
several cases, taking into consideration the ground reality, larger public interest and its ‘great
deal of success’ in the United States, an experiment has been made buy Parliament by
introducing the concept of ‘plea – bargaining’ in comparatively less serious offences as a viable
alternative to be explored to deal with huge arrears of cases.

Care has been taken to ensure that the benefit of plea – bargaining is not available in
respect of socio-economic offences, offences against woman and children not to habitual
offenders.

“When an accused feels contrite and wants to make amends or is honest to pay the fine
for the crime with a degree of compassion, then the deserves to be treated differently from the

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accused who seeks trial involving considerable time, cost and money and the cost of the
community.

4.3 Limitations on taking cognizance :

It is well recognized principle of criminal jurisprudence that anyone can set the criminal
law in motion. The code of criminal procedure does not prescribe any qualification for the
complainant to file a complaint.

Locus standi of the complainant is a concept foreign to criminal jurisprudence. This

general principle is of universal application and is founded on public policy that an offence is
not a wrong only against an individual who has suffered the harm but is a wrong also against
the society and the State.

Since the punishment of the offender is in the larger interest of the society, right to
initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a
strait-jacket formula of locus standi.

At the same time, however, with a view to preventing improper or reckless prosecutions
by private persons and to protecting innocent persons from being unnecessarily harassed by
false, frivolous and vexatious prosecution, certain specific provisions have been making by the
legislature.

By these provisions, eligibility criterion has been prescribed for filing a complaint. Such
provisions are found is Sec. 195 to 199 of the Code.

1) Prosecution for contempt of lawful authority of public servants:

No court take cognizance of any offence of contempt of lawful authority of

public servant punishable under Sec. 172 to 188 of the Indian Penal Code, or abetment
of, or attempt to commit, or criminal conspiracy to commit such offence except on the
complaint in writing of the public servant concerned or of some other public servant tow
whom he is administratively subordinate.

2) Prosecution for offences against public justice :

No court can take cognizance of any offence against public justice, punishable
under Sections 193 to 196, 199, 200, 205 and 211 and 228 of the I P C alleged to have
been committed in, or relation to, any proceeding in any court, or of any criminal
conspiracy to commit, or attempt to commit, or abetment of any such offence, except on
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the complaint in writing of that court, or by an officer authorized by that court, or of

such other court to which that court is subordinate.

3) Prosecution for offences relating to documents produced in court :

No court can take cognizance of any offence relating to documents given in

evidence described in Sec. 463, or punishable under Sec. 471, 475 or 476 of the I P C
alleged to have been committed in respect of a document produced or given in evidence
in a proceeding in any court, or of any conspiracy to commit, or attempt to commit, or
abetment of any such offence, except on the complaint in writing of that court, or an
officer authorized by that Court, or by of such other court to which that court is
subordinate.

4) Prosecution for offences against State :

No court can take cognizance of any offence against the State punishable under
Sec. 121 to 130 of the I P C, or a criminal conspiracy to commit such offence or any
abetment thereof as described in Sec. 108 A of the I P C except with the previous
sanction of the Central or the State Government.

5) Prosecution for offences relating to religion :

No Court can take cognizance of any offence relating to religion punishable

under Sec. 153A, or Sec. 295 A of the I P C, or a criminal conspiracy to commit such
offence or any abetment thereof as described in sec. 108A of the I P C except with the
previous sanction of the Certain or the State Government.

6) Prosecution for offences relating to public mischief :

No court can take cognizance of any offence against national integration or

creating enmity between different classes punishable under Sec. 153 B of I P C.

7) Prosecution for offences against national integration :

No court can take cognizance of any offence against national integration or

creating enmity between different classes punishable under Sec. 153 B of I P C.

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8) Prosecution for offences of criminal conspiracy :

No court can take cognizance of any offence of any criminal conspiracy

punishable under Sec. 120B of the Indian Penal Code, other than a criminal conspiracy
to commit an offence punishable with death, imprisonment for life or rigorous
imprisonment for two years or more unless the State Government or the District
Magistrate gives consent in writing to the initiation of such proceedings.

9) Prosecution of judges and public servants :

No court can take cognizance of any offence alleged to have been committed by
a person who is or was a judge or magistrate or public servant, not removable from his
office save by or with the sanction of the Government while acting or purporting to act
in the discharge of his official duty except with the previous sanction of the appropriate
Union or the State Government.

10) Prosecution of members of armed forces :

No court can take cognizance of any offence alleged to have been committed by
any member of the armed forces of the Union while acting or purporting to act in the
discharge of his official duty except with the previous sanction of the Central
Government.

11) Prosecution for offences against marriage :

No court can take cognizance of an offence against marriage punishable under

Sec. 493 to 498 of the Indian Penal Code or abetment of, of attempt to commit such
offence except upon a complaint made by an aggrieved person. Where such person is a
minor, or an idiot or a lunatic or sick or infirm, unable to make a complaint or is a
woman who does not appear in public, some other person can file a complaint on his or
her behalf with the leave of the court.

12) Prosecution for offences of rape against husband :

No court can take cognizance of an offence of rape punishable under Sec. 376 of
the Indian Penal Code, where such offence consists of sexual intercourse by a man with
his own wife under fifteen years, if more than one year has elapsed form the date of
commission of the offence.

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13) Prosecution for offences of cruelty :

No court can take cognizance of an offence of cruelty to a woman by her

husband or other relatives punishable under Sec. 498 A of the I P C except upon a police
report constitution such offence, or upon a complaint make by the wife or by her father,
mother, brother, sister or by her father’s mother’s brother or sister or by any other
person related to her by blood, marriage or adoption with the leave of the court.

14) Prosecution for defamation :

No court can take cognizance of an offence of defamation punishable under Sec.

499 to 502 of the Indian Penal Code except upon a complaint made by an aggrieved
person.

15) Prosecution for defamation of public servants :

When an offence of defamation is alleged to have been committed against the

President or Vice President or the Governor of a State, or the Administrate of Union
Territory, or a Minister of the Union or of a State in respect of his conduct in the
discharge of his public function, a court of session can take cognizance of such offence
upon a complaint made by the Public Prosecutor.

No court can take cognizance of such offence unless the complaint is made with
six months from the date of the offence.

4.4 Execution, Suspension, Remission and Commutation of Sentences :

Execution :

Sections 413 to 435 deals with execution, suspension, postponement, remission ane
commutation of sentences.

Death Sentence :

a) Warrant for execution :

When death penalty imposed by a Court of Session is confirmed by the High

Court or death penalty is imposed by the High Court in appeal or revision, the Court of

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Session will carry out the said order by issuing a warrant or taking such other steps as
may be necessary.

b) Who may issue warrant :

Every warrant for the execution of a sentence can be issued either by the Judge or
Magistrate who has passed the sentence or by his successor in office.

c) Form :

In case of death sentence, the Court of Session will issue a warrant to the officer
in charge of the jail in Form No. 42.

d) Postponement of execution :

Sec. 415 and 416 enjoin the High Court to postpone execution of death sentence
in the following cases :
(i) Where a person is sentenced to death by the High Court and appeal from
that judgment lies to the Supreme Court under Art. 134 (1) (a) of the
Constitution of India;
(ii) Where a woman sentenced to death is found to be pregnant, the High
Court will not execute sentence;
(iii) Where sentence of death is imposed or confirmed by the High Court and
the High Court is satisfied that the convict intends of file Special Leave
Petition to the Supreme Court under Act. 136 of the Constitution of India.

e) Return of warrant :
When a sentence has been executed, the officer executing it will return the
warrant to the Court has issued it will an endorsement certifying the manner in which it
has been executed.

Imprisonment :

i) Warrant for execution :

Where the accused is sentenced to imprisonment for life or to imprisonment for a

particular term, the court passing the sentence will forthwith forward a warrant to the
jail or to other place in which the accused is, or is to be confined.
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ii) Who may issue Warrant :

Every warrant for the execution of a sentence can be issued either by the judge or
Magistrate who has passed the sentence or by his succession-in-office.

iii) To whom warrant should be directed :

Every warrant for the execution of a sentence of imprisonment shall be directed

to the officer-in-charge of the jail or other place in which the prisoner is or, is to be
confined.

iv) Place of confinement :

Sec. 417 empowers the State Government to direct in what place any person
liable to be imprisoned to custody should be confined.

v) Calculation of period:

When a person undergoing a sentence of imprisonment is sentenced on a

subsequent conviction to imprisonment for life, such latter imprisonment will
commence at the expiration of the former imprisonment unless the court otherwise
directs.

vi) Suspension of sentence :

Wherever an offender is order to pay fine, such payment should be made

forthwith. Sec. 424 of the Code, however, enables the court to suspend the execution of
sentence in order to enable him to pay the amount of fine either in full or in
installments.

vii) Set off of period of imprisonment :

a) Doctrine explained :
Sec. 428 provides for the setting off of the period of imprisonment already
undergone as an under-trial prisoner against the sentence of imprisonment
imposed on the offender.

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b) Object :
The object of enacting Sec. 428 is to mitigate evils of delayed trial, to prevent
overcrowding in jails and to uphold public interest.
The provision aims at crediting the period of pre-conviction detention of the
accused of a case towards the sentence ultimately awarded to him after
conclusion of that very trial.

c) Conditions :
Before the benefit of set-off can be claimed, the following conditions must be
satisfied:
a) The accused must have been sentenced to imprisonment for a particular
term;
b) Such imprisonment must not be in default of payment of fine;
c) He must have undergone imprisonment during investigation, inquiry or
trial in the same case.

viii) Return of warrant :

When a sentence has been executed, the officer executing it will return the
warrant to the court which has issued it with an endorsement certifying the manner in
which it has been executed.

4.5 Suspension :

Sections 432 and 433 provide for suspension, remission and commutation of sentences
while Sec. 433 A places restriction on such power. Sec. 415 and 416 prohibit execution of
death sentence in certain circumstances. Sec. 424 enables Court to suspend execution of
sentence of imprisonment in default of payment of fine in certain cases.

Meaning :
“Suspension” means to take or withdraw the sentence for the time being. It is an act of
keeping the sentence in abeyance at the pleasure of the person who is authorized to suspend the
sentence, and if no conditions are imposed, the person authorized to suspend has the right to
have the offender re-arrested and direct that he should undergo the rest of the sentence without
assigning any reason.
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Section 432 empowers the appropriate Government to suspend the execution of

sentence imposed on any person with or without conditions. Whenever an application is made
to the appropriate Government for the suspension of a sentence, the appropriate Government
many require the judge who convicted or confirmed the sentence on the applicant to state his
opinion with reasons therefore as to whether such application should be granted or refused.

If any condition on which a sentence has been suspended is not fulfilled, the appropriate
Government may cancel the suspension and thereupon, the person in whose favour the
suspension was made may be arrested by any police officer without warrant and remanded to
undergo the unexpired period of the sentence.

4.6 Remission :
“Remission” is the reduction of quantum of punishment without changing is character.
In the case of remission, guilt or conviction of the offender will not have to suffer
imprisonment for the entire period of the sentence but he will be relieved earlier.

Sec. 432 also empowers the appropriate Government to remit the whole or any part of
the sentence imposed on any person with or without conditions. Whenever an application is
made to the appropriate government for the remission of a sentence, the appropriate
Government may require the judge who convicted or confirmed the sentence on the applicant
to state his opinion with reasons therefore as to whether such application should be granted or
refused.

If a condition on which a sentence has been remitted is not fulfilled, the appropriate
government may cancel the remission and thereupon the person in whose favour the
suspension was made may be arrested by any police officer without warrant and remanded to
undergo the unexpired period of the sentence.

4.7 Commutation :
“Commutation” means the alteration of sentence of one kind into a lighter or less server
kind of sentence.

The appropriate Government may, with or without the consent of the person sentenced,
commute;

a) A sentence of death to any other sentence;

b) A sentence of imprisonment for life to imprisonment upon fourteen years or fine;
c) A sentence of rigorous imprisonment to simple imprisonment of fine.

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Section 433-A as inserted by the Amendment Act of 1978, however, puts restriction on
the power of the appropriate Government and enacts that where a person is sentenced to
imprisonment for life, he will not be released form prison unless he has remained in prison at
least for fourteen years.

4.8 Preventive Action of the Police :

In the leading case of D.K.Basu V/s State of West Bengal, liberally interpreting Art. 21
of the Constitution and the doctrine of Rule of Law and keeping in view the hard reality of
custodial violence, physical torture and police atrocities, the Apex Court issued directions to be
followed in all cases of arrest as ‘Preventive Measures’.

1) The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear accurate, visible and clear identification and name tags with
their designations. The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.

2) That the police officer carrying out the arrest of the arrestee shall prepare a memo
of arrest at the time of arrest and such memo shall be attested by at least one
witness, who may be either a member of the family of the arrestee or a
respectable person of the locality from where the arrest is made. It shall also be
countersigned by the arrestee and shall contain the time and date of arrest.

3) A person who has been arrested or detained and is being held in custody in a
police station or interrogation center or other lock-up, shall be entitled to have
one friend or relative or other person known to him or having interest in his
welfare being informed, as soon as practicable, that he has been arrested and is
being detained at the particular place, unless the attesting witness of the memo of
arrest is himself such a friend or relative of the arrestee.

4) The time, place of arrest and venue of custody of an arrestee must be notified by
the police where the next friend or relative of the arrestee lives outside the
district of town through the Legal Aid Organization in the District and the police
station of the area concerned telegraphically within a period of 8 to 12 hours after
the arrest.

5) The person arrested must be made aware of this right to have someone informed
of his arrest or detention as soon as he is put under arrest or is detained.

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6) An entry must be made in the diary at the place of detention regarding the arrest
of the person which shall also disclose the name of the next friend of the person
who has been informed of the arrest and the names and particulars of the police
officials in whose custody the arrestee is.

7) The arrestee should, where he so requests, be also examined at the time of his
arrest and major and minor injuries, if any present on his/her body, must be
recorded at that time.

8) The arrestee should be subjected to medical examination by a tried doctor every

48 hours during his detention in custody by a doctor on the panel of approved
doctors appointed by Director, health Services of the concerned State or Union
Territory.

9) Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Magistrate for his record.

10) The arrestee may be permitted to meet his lawyer during interrogation, though
not throughout the interrogation.

11) A police control room should be provided at all district and State head-quarters,
where information regarding the arrest and the place of custody of the arrestee
shall be communicated by the officer causing the arrest, within 12 hours of
effecting the arrest and at the police control room it should be displayed on a
conspicuous notice board.

The court indicated that failure to comply with the directions would render the official
concerned liable not only for departmental action but also for contempt of court.

4.9 Disposal of Property

Sections 451 to 459 deals with powers of courts in the matter of disposal of property.
Any order to be passed by a criminal court regarding disposal of property must fall under one
or the other provisions of this chapter.

An order of disposal of property may be made by the court during the pendency of the
proceedings or at the conclusion of the trial. The property may be of various types; such as,

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articles found upon search of a person arrested. Property alleged or suspected to be stolen,
property found under circumstances which created suspicion of commission of a crime, etc.

The disposal of property may be by destruction, confiscation, delivery to any person

claiming to be entitled to possession property, restoration to person dispossessed, or sale, etc.

Disposal of property pending trial :

When any property is produced before any criminal court during any inquiry or trial, the
court may make an order for its custody pending the conclusion of an inquiry or trial.

If such property is subject to speedy and natural decay, i.e. perishable, or if it is

otherwise expedient so to do, the court may after recording such evidence as it thinks
necessary, order it to sold or otherwise disposed of.

Sec. 451 empowers the court to pass an interim order for custody of any property
pending inquiry or trial produced before the court or regarding which an offence appears to
have been committed or appears to have been used for the commission of an offence.

Before an order under Sec. 451 is made by the court, the following conditions must be
satisfied;

1) The property must have been produced or must have been in custody of the court, or
regarding which an offence must have been committed;

2) An inquiry or trial must have been pending before the court;

3) The order to be passes must be an interim order which should remain in force till the
conclusion of the inquiry or trial.

Disposal of property at conclusion of trial :

Sec. 451 deals with the disposal of property pending an inquiry or trial, and enables the
court to order interim custody. Sec. 452 provides for the disposal of property at the conclusion
of an inquiry or trial and empowers the court to order disposal of property by destruction,
confiscation or delivery.

Sec. 452 deals with the situation at the conclusion of trial. It enacts that after the inquiry
or trial is over, the court may make an order for disposal by destruction, confiscation, delivery
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to any person claiming to be entitled to possession thereof or otherwise of any property or

document.

Sec. 453 protects an innocent purchaser in certain circumstances. Ordinarily, a buyer of

stolen property does not get title even if he is bone fide purchaser for value without notice. The
appellate court may stay the order pending disposal of the appeal or may modify after or
annual the order and may make further order that may be just. The period of limitation for
filing an appeal is thirty days.

Restoration of property :

Sec. 456 provides for restoration of possession of immovable property to persons

dispossessed by criminal force or criminal intimidation. It states that when a person is
convicted of an offence attended by criminal force or show of force or by intimidation, any
person has been dispossesses of any property, the court may order restoration of possession to
that person after evicting by force a person who may be in possession of the property.

In order that this section may apply, the following conditions must be fulfilled:

a) The accused must have been convicted of an offence attended by criminal force,
show of force or criminal intimidation;

b) The accused must have dispossessed another person of immovable property by such
force or intimidation;

c) The court must have considered it fit to make an order of restoration of possession;

d) The court must have passed an order within one month after the date of conviction.

Seizure of property :

Sec. 457 enables a magistrate to pass orders for disposal of property seized by the police
but not produced in court during inquiry or trial.

The magistrate may make an order of disposal of the property or of delivery of property
to the person entitled to possession thereof or if such person cannot be ascertained, for safe
custody of such property. If such person is unknown, the Magistrate may issue a proclamation
requiring any person having a claim thereto to appear before him and establish his claim within
his claim six months from the date of proclamation.
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Before this section can be applied, the following conditions must be satisfied :

i) the property must have been seized by the police under the provisions of the Code;

ii) such property must not have been produced before a criminal court during the
inquiry or trial.

Sale of property :

Sections 458 and 459 deal with sale of property.

Sec. 458 states that when a proclamation has been issued under Sec. 457 of the Code
and within the stipulated period of six months, no person establishes his claim to the property
or is unable to show that it was legally acquired by him, the magistrate may direct that such
property shall be at the disposal of the State Government.

Destruction of property :

Sec. 455 provides for destruction of certain materials. It states that on a conviction for
offences involving sale, etc. of obscene books or objects or of defamatory matters or
adulterated food, drink, drug or medical preparation, the court may order destruction of such
materials.

Confiscation of property :

The power of disposal includes the power of confiscation also. But it is not that in each
and every case of conviction, the court should pass an order of confiscation of property.

The exercise of the power depends upon the facts and circumstances of each case. Since
the confiscation is not the only mode of disposal, it is not obligatory for the court to make an
order of confiscation.

4.10 Transfer of cases :

Sections 406 to 412 deals with transfer of criminal cases.

As a general rule, only that court will try the case where the crime has been committed.
Sec. 406 enables the Supreme Court to transfer cases from one State to another. Sec. 407
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empowers a High Court to transfer cases from one court to another court. Sec. 408 empowers a
Sessions Judge may transfer any case from one court to another in his sessions division.

Object :

As discussed above, the primary object of every procedural law is to facilitate justice
and further its ends. A fair and impartial trial is an essential requirement of dispensation of
justice. It is possible only if the court dealing with the case is independent as well as impartial.
It is a fundamental principal of law that justice should not only be done but manifestly and
undoubtedly be seen to be done.

If the accused reasonably apprehends that justice will not be done or there are other
circumstances, to securing fair trial and unadulterated justice, the case can be transferred to
some other court.

Who may order transfer ?

The following courts may order transfer of criminal cases :

a) The Supreme Court may transfer any case or appeal from one High Court to another
High Court or from a criminal court subordinate to one High Court to any criminal
court of equal or superior jurisdiction subordinate to another High Court.

b) A High Court may order that –

(i) any offence by inquired into or tried by any court, not empowered under Sec.
177-185, but otherwise competent to inquire into or try such offence;

(ii) any particular case or appeal or class of cases or appeals be transferred from
one criminal court to another criminal court;

(iii) any particular case be committed for trial to a Court of Session;

(iv) any particular case or appeal be transferred to and tried before itself.

c) A Sessions Judge may order that any particular case be transferred from one criminal
court to another criminal court in his session division.

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Who may apply ?

The Attorney general of India or Advocate General of a State, or a party interested may
apply to the Supreme Court for transfer of a case. Every such application for transfer must be
supported by an affidavit or affirmation, except when the applicant is the Attorney General of
India or the Advocate General of the State.

Every application for transfer must be supported by an affidavit or affirmation, except

when the applicant is the Attorney General, Advocate General or Public Prosecutor.

Form :

No specific or particular form of application for transfer has been prescribed by the
Code. Such application, however, must be self-contained and supported by a sworn affidavit of
the applicant, if the applicant is not the Attorney General, Advocate General or Public
Prosecutor.

Grounds :

Section 407 enacts that a High Court may transfer a case or an appeal when it appears to
it that –

a) fair and impartial inquiry or trial is not possible;

b) some question of unusual difficulty is likely to arise;
c) it is required by the Code;
d) it will tend to general convenience of the parties or witnesses;
e) it is expedient in the ends of justice;

Procedure :

(a) Application :

An application of transfer may be made by the Attorney General of India, Advocate

General of a State, Public Prosecutor or by a “party interested”.

(b) Affidavit :

Every application for transfer made by a party to the proceeding or “party interest” must
be supported by an affidavit. But if such application is made by the Attorney General of India,

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Advocate General of a State, Public Prosecutor, it is not necessary that should be supported by
affidavit or affirmation.

(c) Bond :

When an application for transfer is made by an accused person, the High Court or the
Sessions Judge may direct him to execute a bond, with or without sureties, for the payment of
any compensation to the opponent which the court may award at the time of dismissal of the
application.

(d) Notice :

When an accused person makes an application for transfer, he must give to the public
prosecutor notice in writing of the application, together with a copy of the grounds on which
such transfer is sought. No order on merits on such application can be passed before twenty-
four hours of service of such notice and the hearing of the application.

(e) Stay of proceedings :

Where an application is made for transfer of a case or the Sessions Judge may order stay
of further proceedings in the subordinate court during the pen deny of such application if it is
in the interest of justice.

(f) Compensation :

Where any application for transfer is dismissed, and the court is of the opinion that such
application was frivolous or vexatious, it may order the applicant to pay compensation to the
opponent as it may consider proper in the circumstances of the case.

(g) Reasons :

Sec. 412 requires the Sessions Judge to record reasons for passing an order of transfer.

(h) Trial by High Court :

when a High Court transfers any case from any court for trail before itself, it will
observe the same procedure which that court would have observed had the case not been so
transferred.

(i) Limitations on power of High Court :

Sec.407(1)clarifies that the transfer would not affect any order of sanction granted by
the Government under Sec. 197(4) specifying the court in which trial is to be held. But where
the Government has not specified the court, this bar will not operate.

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Transfer allowed : Illustrative cases :

In the following cases, transfer was allowed:

(a) Where the magistrate was himself interested in the case;

(b) Where the magistrate having formed an opinion expressed it even before the
evidence was heard;

(c) Where the magistrate asked the applicant to subscribe to a public fund, and on
his refusal cancelled bail;

(d) Where the magistrate has imported his personal knowledge that the accused
was guilty;

(e) Where during the trail the magistrate made remarks that he was not going to
believe the witnesses of the applicant;

(f) Where the magistrate discussed the case at a local club with the complainant;

(g) Where the magistrate went to the scene of occurrence in the company of the
complainant and held local inquiry;

Transfer refused : illustrative cases:

On the other hand, in the following cases, transfer was not allowed:

(a) Where the magistrate rejected the payer of the applicant for adjournment of a
case;
(b) Where the magistrate passed some judicial orders against the applicant which
were set aside by superior courts;

(c) Where the magistrate refused to grant or cancelled exemption to an accused

from personal appearance;

(d) Where the magistrate insisted on compromise of the case by the parties;

(e) Where the trying magistrate was subordinate to the officer lodging the
complaint;

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(f) Where the magistrate made certain remarks against party’s delaying tactics;

(g) Where there was quarrel or unpleasantness between the magistrate and the
counsel;

(h) Where the magistrate gave compensation by way of costs for adjournment to
the other side;

(i) Where the magistrate has good and cordial relations with the complainants
advocate or discordant relations with the defence lawyer.

Revision :

No appeal is provided against an order passed by the Sessions Judge under Sec. 408
granting or rejecting an application for transfer. A revision application, however, lies to the
High Court. But the High Court will not ordinarily interfere with the discretionary order
passed by the Sessions Judge in absence of grave injustice.

4.11 Irregular Proceedings :

Sections 460 to 466 deals generally with irregular proceedings.

Irregularities are of various kinds. Certain irregularities are not treated as vital and
fundamental by the Code. They are set out is Sec 460 and 466. no question prejudice arises in
such cases as the sections state that they do not vitiate the proceedings. Certain other
irregularities, on the other hand, are considered as fundamental and irrespective of prejudice,
they vitiate the proceedings.

Broadly specking if such irregularities have caused substantial prejudice to the accused
or had occasioned failure of justice, the proceedings would be vitiated but minor or
inconsequential errors or omissions are considered curable.

Object :

The Code of Criminal Procedure is a procedural law, and like all procedural laws, is
designed to further the ends of justice and not to frustrate them by encouraging technicalities.

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The primary object of the Code is to ensure that an accused person gets a fully and fair
trail according to well settled principles of law and in consonance with the principles of natural
justice.

Irregularities which do not vitiate proceedings:

Sections 460 and 466 enumerate certain irregularities which do not vitiate proceedings.

Section 460 cures the following irregularities if a magistrate not empowered by law
erroneously commit them in good faith:

a) issues a search warrant;

b) orders the police to investigate an offence;

c) holds an inquest;

d) issues process for the apprehension of a person within his local jurisdiction
who has committed an offence outside such limits;

e) takes cognizance of an offence;

f) transfers a case;

g) tenders a pardon;

h) recalls a case and tries it himself;

i) sells property;

sec.466 expressly provides that no attachment under the Code shall be deemed to be
unlawful not any person making it shall be deemed a trespasser on account of any defect or
want of form in the summons, conviction, writ of attachment or other proceedings relating to
such attachment.

Irregularities which vitiate proceedings:

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Sec. 461 declares certain proceedings void if the magistrate is not empowered by a law
to commit them. It is immaterial whether the proceedings were taken by him in good faith or
any prejudice was caused to the accused:

(a) attaches and sells property;

(b) issues a search warrant for a document, parcel or other thing in the custody of postal
or telegraph authority;

(c) demands security to keep peace;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace;

(g) makes an order for maintenance;

(h) makes an order as to local nuisance;

(i) prohibits repetition or continuance of a public nuisance;

(j) makes an order in urgent cases of nuisance or apprehended danger or relating to

disputes as to immovable property;

(k) takes cognizance of an offence;

(l) tries an offender;

(m) passes a sentence on proceedings recorded by another magistrate;

(n) decides an appeal;

(o) calls for proceedings;

(p) revises an order;

Proceedings in wrong court:

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Sec.462 states that no finding sentence or order of any criminal court shall be set aside
merely on the ground that the inquiry, trial or other proceedings were held at a wrong place,
unless such error has occasioned failure of justice.

The policy of the Code is to uphold the orders passed by criminal courts on merits and
no finding, order, conviction or sentence can be set aside merely on the ground that it was
recorded, passed, made or imposed by a magistrate or a judge having no territorial jurisdiction
unless such defect has in fact occasioned a failure of justice.

Curable irregularities: Illustrations:

The following irregularities have been held to be curable irregularities:

a) Failure to examine the complainant on oath;

b) Omission to read over and explain the charge to the accused;

c) Irregularity in conducting investigation;

d) Error or irregularity in granting sanction;

e) Omission to record relevant facts at local inspections;

f) Adoption of a procedure of warrant case in a summons case;

g) Irregularity in conducting search;

h) Contravention of provisions in recording statements of witnesses by the police

officer;

i) Non-examination or defective examination of the accused;

j) Irregularities in the matter of signing, dating or pronouncing judgment.

Incurable irregularities: Illustrations:

The following irregularities have been held to be incurable irregularities:

a) Dismissal of a complaint without recording reasons;

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b) Omission to call upon the accused to defend;

c) Failure to explain nature of allegations leveled against the accused;

d) Examination of witnesses in absence of the accused;

e) Adoption of a procedure of summons case in a warrant case;

f) Denial of opportunity to accused to produced defence evidence;

g) Non-furnishing of copies of statements of witnesses recorded by the police to the

accused;

h) Omission to record a finding;

i) Failure to pronounce or deliver judgment in open court;

j) Alteration of a judgment after it is signed on a matter other than clerical or

arithmetical error.

Concluding:

It is obvious that the question of curing an irregularity can only arise when one or more
of the express provisions of the Code are violated.

The question in such cases is whether the departure is so violent as to strike at the root
of the trail and make ‘it no trial at all’ or is of a less vital character.

It is impossible to lay down any hard and fast rule but taken by and large, the question
usually narrows down to one of prejudice. In any case, the courts must be guided by the plain
provisions of the Code without straining at its language wherever there is an express prvision.

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UNIT – V

5.1 J.J. ACT AND P.O ACT :

Juvenile Justice (Care and Protection of Children) Act, 2000 has been enacted replacing
the earlier Juvenile Justice Act, 1986. This new Act consolidates the laws relating to Juveniles

a) who are in conflict with Law (Juvenile delinquents) and

b) who are in need of care and protection.

This enactment provides for proper care, protection and treatment to the children by
catering to their development needs, and by adopting a child friendly approach in the
adjudication and disposition of matters in the best interest of child and also provide room for
their ultimate rehabilitation through various institutions created under it. Broadly the Act
creates, Advisory Board, Juvenile Justice Board, Child Welfare Committee and recognizes
Children’s home, Observation home, Shelter home, and Special home to further the objectives
of the Act.

The first chapter of the Act deals with the preliminary matters. After defining the title it
deals with its extent. The Act extends to whole of India except Jammu and Kashmit. Various
terms have been defined under the Act, the meaning of which shall be discussed at relevant
places. However the definitions as given under the Act are as under –

Definitions

In this Act, unless the context otherwise requires –

a) “advisory board” means a Central or State advisory board or a district and city level
advisory board, as the case may be, constituted under Section 62;

b) “begging’ means –

(i) Soliciting or receiving alms in a public place or entering into any private
premises for the purpose of soliciting or receiving alms, whether under any pretence;

(ii) exposing or exhibiting with the object of obtaining or extorting alms, any
sore, wound, injury, deformity, or disease, whether of himself, or of any other person or an
animal;

c) “Board” means a Juvenile Justice Board constituted under Section 4;

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d) “Committee” means a Child Welfare committee constituted under Section 29;

Juvenile Justice Board

Juvenile Justice Board is to be constituted for a district or a group of districts by a State

government notification. However in case of need more than one Board can be established.
These Boards are to exercise the powers and discharge the duties as are conferred upon them in
relation to Juveniles in Conflict with Law under this Act. The constitution of the Board has
been laid down in Section 4(2). It shall consists of a Metrpolitan Magistrate of a Judicial
Magistrate of first class and shall consist of two social workers of whom ne has to be a woman.
The Board has been conferred the posers f Magistrates as given under Criminal Procedure
Code 1973.

The term of the members of the Bard shall be as may be prescribed. However any such
members can resign in the manner prescribed. Clause (5) of the Section 4 deals with the
termination of any member of the Board after holding an inquiry. If the State Government finds
that any member

(i) has been found guilty of misuse of poser vested under this Act,
(ii) has been convicted of an offence involving moral turpitude, and such conviction
has been reversed or he has not been granted full pardon in respect of such
offence,
(iii) fails to attend the proceedings of the Board for consecutive three months without
any valid reason or he fails to attend less than three-fourth of the sittings in a
year.

Procedure and Power

The procedure regarding the meeting of Board and observance of the rule of procedure
in regard to the transaction of business at its meetings shall be prescribed by the government.
However when the Board is not in sitting a child in conflict with laws may be produced before
an individual member of Board. It has been further clarified that the absence of any member of
the Board shall not invalidate any order made by the Board. However at the time of final
disposal of the case, at least two members including the Magistrate are required to be present.
In the event of any difference of opinion amongst members in the interim of final disposition
the opinion of majority is to prevail and in absence of it, the opinion of the principle Magistrate
shall prevail.

Section 6 of the Act deals with the powers of Juvenile justice Board. The Boards shall
have the power to deal exclusively with all proceedings under the Act relating to Juvenile in
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conflict with laws, unless otherwise provided in this Act. This powers has been conferred upon
High Court and Court of Session, when they are dealing with an appeal, revision or otherwise.

Section 7 deals with the procedure to be followed by a magistrate under the Act, when
he is not empowered to exercise the power of Board. In such case the Magistrate if holds the
opinion that the person brought before him is a Juvenile or a child, he shall without any delay
after recording his opinion forward the Juvenile or a child and the record of the proceeding to
the competent authority having jurisdiction. The competent authority thereafter shall proceed
with the inquiry as if the Juvenile has been directly brought before him. However if the former
Magistrate holds the inquiry and finds the accused not to be a juvenile, he need not refer the
case to the Juvenile Court.

Observation Homes and Special Homes

The Act provide the establishment of an Observation Home by the State Government
itself or under an agreement with voluntary organizations. Such observation homes may be
established in every district or group of districts for the temporary reception of any Juvenile in
conflict with laws during the pendency of an inquiry. The State Government is also empowered
to certify any other institution to be treated as observation home for the purpose of the Act. In
order to provide effective management of these observation homes States Government have
been authorized to make Rules under the Act. Rules therefore can be made for laying down
standards and various types of services to be provided by them for rehabilitation and social
integration of a juvenile, Further the rules can also provide the circumstances and the manner
in which the certification f an observation home may be granted or withdrawn.

Clause (4) of Section 8 provides for the classification of Juvenile according to their age
group; such as 7 to 12 years, 12 years to 16 years and 16 years to 18 years, giving due
considerations to physical and mental status and degree of the offence committed by them.
Those juveniles who are not placed under the charge of parent f guardian.Shall be sent to the
observation home pending preliminary inquiries, care and classification.

In order to rehabilitate a juvenile in conflict with law Shelter homes are to be

established by the State Governments in the same lines as observation homes. Under Section 9
of the Act any institution can also be certified by the State Government for being treated as
shelter home for this Act’s purpose. Rules are to be made by the State Government for the
management of special homes including the (standards …) and various types of services to be
provided by them. There are directed towards the re-socialisation of a juvenile. However rules
can also specify the manner in which, the certification of a special home may be granted or
withdrawn. Again these can be classified treatment of juveniles in conflict with law on the

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basis of age and nature of offences committed by them and according to the mental and
physical status of the juveniles.

5.2 Child In Need of Care And Protection :

The third chapter of the Act deals exclusively with those children who are in need of
care and protection instead of the term neglected child a new phrase “Child in need of care and
protection” has been used. Thus this phrase has wider area as it covers a large list of children
who are in need of care and protection. The protection has sought to be provided to the
deserving children through :-

Child Welfare Committee

1) The State Government may, by notification in Official Gazette, constitute for every
district r group of districts, specified in the notification, one or more Child Welfare
Committee for exercising the powers and discharge the duties conferred on such
Committees in relation to child in need of care and protection under this Act.
2) The committee shall consist of a Chairperson and four other members as the State
Government may think fit to appoint, of whom at least one shall be a woman and
another, an expert on matters concerning children.
3) The qualifications of the Chairperson and the members, and the tenure for which
they may be appointed shall be such as may be prescribed.
4) The appointment of any member of the committee may be terminated, after holding
inquiry, by the State Government, if –

a) he has been found guilty of misuse of power vested under this Act;
b) he has been convicted of an offence involving moral turpitude, and such
conviction has been revered or he has not been granted full pardon in
respect of such offence;
c) he fails to attend the proceedings of the Committee for consecutive three
months without any valid reason or he fails to attend less than three-fourth
of the sittings in a year.

5) The Committee shall function as Bench of Magistrates and shall have the powers
conferred by the Code of Criminal Procedure, 1973 (2 of 1974) on a Metropolitan
Magistrate or, as the case may be, a Judicial Magistrate of the first class. (Section
29)

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Procedure in relation to Committee

1) The Committee shall meet at such times and shall observe such rules of procedure in
regard to the transaction of business at its meetings, as may be prescribed.

2) A child in need of care and protection may be produced before an individual member
for being placed in safe custody or otherwise when the Committee is not in session.

3) In the event of any difference of opinion among the members of the Committee at
the time of any interim decision, the opinion of the majority shall prevail but where
there is no such majority the opinion of the Chairperson shall prevail.

4) Subject to the provisions of sub-section (1), the Committee may act, notwithstanding
the absence of any member of the Committee, and not order made by the Committee
shall be invalid any reason only of the absence of any member during any stage of
the proceeding. (Section 30).

Powers of Committee

1. The Committee shall have the final authority to dispose of cases for the care,
protection, treatment, development and rehabilitation of the children as well as to
provide for their basic needs and protection of human rights.

2. Where a Committee has been constituted for any area. Such Committee shall,
notwithstanding anything contained in any other law for the time being in force but
save as otherwise expressly provided in this Act. have the power to deal exclusively
with all proceedings under this Act relating to children in need of care and protection
. (Section 31)

5.3 The Probation of Offenders Act, 1958 :

Introduction

We are going through an age of reformation of criminals. Criminals so longer remain a

condemned class. They are also viewed as persons with deformed attitude towards society
more or less like a patient and they can be cured through the medicine of reformation by their
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social reintegration. This Act under discussion too aims at useful rehabilitation of criminals in
society. Segregation of new criminals from hardened ones is call of the day through humanist
approach being advocated both at National and International Levels. Even Supreme Court, has
shown its concern for youthful offenders while applying this Act.

Concept of Probation

“Probation” terms is comprised of “Probe” a Latin word which means “I prove my

words”. and “Probation” means ‘test on approval’. According to Webster’s dictionary it means
the act of proving. Proof, any proceeding designed to ascertain character. “Probation” is a
socialized penal device and extramural alternative of institutionalistion, and has come about as
the result of modification over a period of time of doctrine of deterrence into the principle of
reformation, a development which paved way to the introduction of a clinical approach and the
principle of individualization in the handling of offender”.

5.4 Development of Probation In India :

In ancient India though Manu, Vijnaneshwar and Mitramisa expressed their concerns for
the accused and maintained that punishment be awarded only after due consideration of the
environment in which the offence was committed, however no reference can be found of the
theory of ‘Probation’.

Statement of objects and Reasons

The question of release of offenders on probation of good conduct instead of sentencing

them to imprisonment has been under consideration for some time. In 1931, the Government of
India prepared a draft of Probation of Offenders Bill and circulated it to the then Local
Governments for their views. However, owing to pre-occupations with other more important
matters, the Bill could not be proceeded with. Later in 1934, the Government of India informed
Provincial Governments that there was no prospect of Central legislation being undertaken at
the time and there would be n objection to the Provinces undertaking such legislation
themselves. A few Provinces accordingly enacted their own probation laws.

Power of curt to release certain offenders after admonition

When any person is found guilty of having committed an offence punishable under
Section 379 or Section 380 or Section 381 or Section 404 or section 420 of the Indian Penal

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Code (45 of 1860), or any offence punishable with imprisonment for not more than two years,
or with fine, or both, under the Indian Penal Code or any other law, and no previous conviction
is provided against him and the court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including the nature of the offence and the
character of the case including the nature of the offence and the character of the offender, it is
expedient so to do, then, notwithstanding anything contained in any other law for the time
being in force, the curt may, instead of sentencing him to any punishment or releasing him on
probation of good conduct under Section 4 release him after due admonition (Section 3).

Admonition

This term has been defined under Webster’s Dictionary as : “Counsel or advice, a
warning, gentle reproof, to warm or notify of a fault, cautions, directions, to reprove with
mildness and to remind. “This has been defined in State v Ghanshyamdas, as under:-

“Admonition by a Judge is a reprimand, a censure or a reproof warning the accused that

he is being let off, but in case of repetition he will be punished severely in accordance with the
Law”.

Power of Court to release certain offenders on probation of good conduct

1) When any person is found guilty of having committed an offence not punishable
with death of imprisonment for life and the court by which the person is found guilty
is of opinion that, having regard to the circumstances of the case including the nature
of the offence and the character of the offender, it is expedient to release him on
probation of god conduct, then, notwithstanding anything contained in any other law
for the time being in force, the curt may instead of sentencing him at once t any
punishment, direct that he be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called upon during such period, not
exceeding three years, as the court may direct, and in the meantime to keep the peace
and be of good behavior.

2) Before making any order under sub-section (1), the court shall take into
consideration the report, if any, of the probation officer concerned in relation to the
case.

3) When an order under sub-section (1) is made, the court may, if it is of opinion that in
the interests of the offender and of the public it is expedient so to do, in addition pass
a supervision order directing that the offender shall remain under the supervision of
a probation officer named in the order during such, period, not being less than one
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year, as may be specified therein, and may in such supervision order impose such
conditions as it deems necessary for the due supervision of the offender.

Conditions of Probation and procedure regarding bonds and sureties

The court passing an order under Section 4 of the Act has further been empowered to
vary the conditions of probation upon an application being moved by the Probation Officer in
this respect. The bond may be varied by, extending the period upto three years and new
conditions may be inserted. The notice and opportunity of hearing shall be given to the accused
as well as surety while passing such an order. The Court may even discharge the bonds.
Section 8 reads as under –

“8. Variation of conditions of probations.- (1) if, on the application f a probation officer,
any court which passes an order under Section 4 in respect of an offender is of opinion that in
the interests of offender and the public it is expedient or necessary to vary the conditions of any
bond entered into by the offender, it may, at any time during the bond is by the offender, it may,
at any time during the period when the bond is effective, very the bond by extending or
diminishing the duration thereof so. However, that it shall not exceed three years from the date
of the original order or by altering the conditions thereof or by inserting additional conditions
therein.

Probation Officer – his duties

Section 13 of the Act furnishes a detailed definition of the term Probation officer, while
Section 14 lags down its duties. Section 15 declares him to be a public servant for the purpose
of Section 21 of the Indian Penal Code. A blanket protection has been provided for the acts
done in good faith by persons appointed under the Act including Probation officers, in
pursuance of this Act or of any rules made under it vide Section 16.

Who is a Probation Officer

He is a person who supervises and reports on the behavior of an officer who is on

probation according to Webster’s Dictionary, Black’s Law Dictionary defines Probation Officer
as “one who supervises a person (commonly juveniles) places on probation by a court in a
criminal proceeding. He is required to report to the court the progress of the probationer and to
surrender him if he violates the terms and condition of his probation”.

An analysis of the basic elements of probation reveals that one of its elements is
supervision of the offender by a Probation officer.
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Duties of probation officer

Certain statutory duties are to be performed by a Probation officer under the Act. These
are laid down under Section 14 as under:

A probation officer shall, subject to such conditions and restrictions, as may be

prescribed,-

a) Inquire, in accordance with any directions of a court, into the circumstances or home
surroundings of any person accused of an offence with a view to assist the court in
determining the most suitable method of dealing with him and submit reports to the
court;
b) Supervise probationers and other persons placed under his supervision and, where
necessary, end favour to find them suitable employment;
c) Advise and assist offenders in the payment of compensation or costs ordered by the
court;
d) Advise and assist, in such cases and in such manner as may be prescribed, persons
who have been under Section 4; and
e) Perform such other duties as may be prescribed.

Apart from these rules can be made by the State Government with the approval of the
Central Government for appointment of Probation Officers and for their duties together with
the payment of remuneration to them

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